Kara Sears
Common law, which first emerged in the late 1100s, is a legal system that heavily relies on judicial precedent, or case law, to determine what the law is. It is a sophisticated type of customary law that recognises tradition and adjusts to evolving social values and understandings. Common law is the foundation of the legal traditions of English-speaking countries and is often contrasted with the Civil Law traditions of continental Europe, which are based on comprehensive legal codes. The key features of common law include its emphasis on written documentation, peaceful dispute resolution, the use of local juries, and a clear hierarchy of courts.
| Characteristics | Values |
|---|---|
| Origin | The common law emerged in the late 1100s, during the reign of Henry II (1154-89). |
| Meaning | It refers to the law that is 'common' throughout a country, as opposed to regional or local laws. |
| Key Features | Heavy reliance on judicial precedent, or case law; recognition of tradition; adjustment to evolving social values; emphasis on written documentation, peaceful dispute resolution, and clear court hierarchies. |
| Influence | English common law influenced American common law well into the 19th century. |
| Criticism | Critics argue that common law relies too heavily on old precedents and maxims, which may no longer be relevant or appropriate. |
| Evolution | Common law decisions now reflect both precedent and policy judgments drawn from economics, social sciences, and foreign court decisions. |
| Modern Application | Common law is still recognized in some U.S. states, such as Colorado, Iowa, Kansas, and Texas, primarily for inheritance and marital purposes. |
| Challenges | Common-law marriages can be challenging to prove and are becoming less common due to changing social norms and the ease of cohabitation without marriage. |
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What You'll Learn
Common law's origins
The origins of common law can be traced back to the late 1100s in England, during the reign of King Henry II (1154-1189). This period marked a significant shift from local, informal power structures to the emergence of formal government institutions. The expansion of royal justice under Henry II played a pivotal role in the development of common law.
During this time, the royal treasury, known as the Exchequer, and permanent royal courts, such as the Court of the King's Bench and the Court of Common Pleas, were established in Westminster, London. This centralisation of power brought about a more comprehensive and standardised system of law, known as the 'Common Law'.
The term 'Common Law' originally signified the law that was uniform or 'common' throughout the country, in contrast to the varying local or regional laws that had previously existed. While the Common Law conserved the substantive law, it introduced innovations in terms of procedure. This included a focus on written documentation, particularly royal 'writs', which were orders issued by the king to initiate legal actions or resolve disputes.
The Common Law also emphasised the peaceful resolution of disputes, the utilisation of local juries to determine law and fact, and the establishment of a clear hierarchy of courts. This system, with its reliance on judicial precedent, gradually evolved to accommodate changing social values and understandings, making it a dynamic and adaptable form of customary law.
The influence of English common law extended beyond England, particularly to the American colonies. Even after American independence, English common law continued to exert influence, as seen in cases such as Byrne v Boadle (1863). Additionally, the concept of common-law marriage, which originated in the early days of the American colonies, still persists in some form in certain states today.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, informal marriage, de facto marriage, or marriage by habit and repute, is a marriage that occurs without a statutorily defined process, marriage license, or ceremony. It is a marriage that results from the couple's agreement to consider themselves married, followed by cohabitation.
The original concept of a "common-law" marriage is one that is considered valid by both partners but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. The act of the couple representing themselves to others as being married and organizing their relationship as if they were married, means they are married.
The term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation or other legally formalized relations. Although these interpersonal relationships are often called "common-law marriages", they differ from its original meaning in that they are not legally recognized as marriages.
The requirements for common-law marriage vary depending on the jurisdiction. In some states, there is no statutory requirement for the length of time a couple needs to live together, and the court considers each case individually. Generally, the longer a couple lives together, the stronger their case is for common-law marriage. Both partners must have the legal capacity to marry, which usually means they must be at least 18 years old, of sound mind, and not already married to other people. Both partners must also intend to be married and behave as a married couple, holding themselves out to friends, family, and the public as being married.
The concept of common-law marriage has a long history, dating back to medieval Europe, ancient Greece, and ancient Rome, where marriage was a private agreement between individuals and estates, and community recognition was largely what qualified a marriage as valid. In the 13th century, the Catholic Church forbade clandestine marriage, requiring all marriages to be announced in a church by a priest. Over time, more specific requirements were introduced, and in the 18th century, England abolished common-law marriages, requiring marriages to be performed by a priest of the Church of England. However, common-law marriage survived in colonial America and is still recognized in some states today.
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Common law in the US
The US operates under a dual system of both common and civil law. While common law marriage is no longer recognized in many US states, including Alabama, it was historically the only type of legal system used in the country. The common law of England, which was created after the Norman Conquest of 1066, heavily influenced the development of common law in the US. For example, the res ipsa loquitur doctrine, first applied in Byrne v Boadle (1863), originated from English common law.
In the early 20th century, Louis Brandeis, who was later appointed to the United States Supreme Court, became known for his use of policy-driving facts and economics in his briefs. This marked a shift from the traditional reliance on Latin maxims in common law decisions. Today, common law decisions reflect both precedent and policy judgment drawn from various fields, including economics, the social sciences, and business.
While common law has been criticized for its rigid adherence to precedent, it has also served as a basis for new legislation. For example, the U.K.'s Voyeurism (Offences) Act, which criminalized "upskirting," was passed in 2019 based on the ancient common-law offense of "outraging public decency." Despite the influence of common law in the US, none of the common law systems in the country are purely common law, as they also consider codified statutes. However, the principle of stare decisis remains constant, where prior court decisions interpreting a statute are considered precedent and binding.
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Common law in the UK
Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions. Common law includes both substantive rules, such as the offence of murder, and procedural ones, such as court procedure rules derived from the inherent jurisdiction of the court. The main elements of a crime are the actus reus (doing something which is criminally prohibited) and a mens rea (having the requisite criminal state of mind, usually intention or recklessness).
Common law is practised in several other countries besides the UK, including Australia, Canada, India, and New Zealand. The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. The common law of England has also directly influenced the legal system in Ireland and partially influenced the distinct legal system in Scotland.
Common law rules may be superseded or replaced by legislation, which is said to "trump" or take precedence over common law. Offences of theft, for example, based on the old common-law offence of larceny, are now governed by the Theft Acts of 1968 and 1978.
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Common law today
Common law, which emerged in the late 1100s, is still relevant today. It is a significant part of the legal traditions of English-speaking countries and is often contrasted with the Civil Law traditions of continental Europe, which are based on comprehensive legal codes that give judges less discretion in deciding cases. Common law is also distinct from statutory law, which is set out by legislative statutes.
The key feature of common law is its heavy reliance on judicial precedent, or case law, as a means of determining the law. Judicial decisions tend to recognize tradition while also adjusting to evolving social values and understandings, making common law a sophisticated type of customary law. Common law also relies on written documentation, such as royal 'writs', which are orders from the king to the sheriff, initiating legal action or extending the king's jurisdiction.
Today, common law decisions reflect both precedent and policy judgments drawn from economics, the social sciences, and business decisions from foreign courts. While the reliance on old maxims and rigid adherence to precedent has been criticized, it continues to play a role in common law, with older decisions persisting through belief in the correctness of those decisions and the absence of a compelling reason to overrule them.
In the context of family law, common-law marriage is still recognized in certain places. Common-law marriage, which originated in the early days of the American colonies, allowed couples to legitimize their relationship and pass on property when traveling to find someone to officiate a wedding was difficult, and cohabitation without marriage was socially unacceptable. Today, common-law marriage is recognized in a decreasing number of states, including Colorado, Iowa, Kansas, Montana, and Texas. While the specific requirements vary, common-law marriage generally involves cohabitation, holding themselves out as married, and the capacity to marry.
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Frequently asked questions
Common law is a legal system that heavily relies on judicial precedent, or case law, to determine what the law is. It is often contrasted with the Civil Law traditions of continental Europe, which are based on comprehensive legal codes that give judges less discretion in deciding cases.
Common law emerged in the late 1100s, during the reign of Henry II (1154-1189), when the royal treasury and permanent royal courts became established in Westminster, London.
Some examples of common law maxims include "one cannot be a judge in one's own cause" and rights are reciprocal to obligations. These maxims often originated in Roman Law and were migrated to England before the introduction of Christianity.
Common-law marriage is a legal marriage that is informal, without a wedding ceremony, marriage license, or marriage certificate. Couples in a common-law marriage have the same rights as couples who went through a formal marriage process. Common-law marriage is recognized in 12 states and the District of Columbia in the United States.
