Kara Sears
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system that is less prescriptive than civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries, and it is considerably more flexible than civil law as it can respond to changes in society. It is important to note that common law systems are more complicated than they may initially seem, and the decisions of a court are only binding in a particular jurisdiction. When assessing common law regulation, it is crucial to understand its dynamic nature, the role of precedents, and the interplay between different levels of courts and jurisdictions.
| Characteristics | Values |
|---|---|
| Type of legal system | Common law |
| Basis | Court decisions, caselaw, legal precedent |
| Sources of law | Opinions and interpretations from judicial authorities and public juries |
| Binding decisions | Decisions of the highest court can generally only be overturned by that same court or through legislation |
| Nature of decisions | More weight is given to recent decisions and decisions of higher courts |
| Nature of precedents | Precedents are a history of judicial decisions which form the basis of evaluation for future cases |
| Nature of contracts | Few provisions are implied into a contract |
| Nature of procedure | Adversarial system |
| Nature of reasoning | Casuistry or case-based reasoning |
| Nature of jurisdiction | Decisions of a court are binding only in a particular jurisdiction |
| Adaptability | Can address situations not originally predicted by lawmakers |
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What You'll Learn
Common law vs civil law
There are two main types of legal systems in the world: Common Law and Civil Law. Most countries have adopted features from one or the other into their own legal systems.
Common Law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law was originally developed through custom, before laws were written down. It is generally uncodified, meaning there is no comprehensive compilation of legal rules, and it is largely based on precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning.
Common law systems are considerably more complicated than they may first appear. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority.
Civil Law
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is generally more prescriptive than a common law system. There are roughly 150 countries that have what can be described as civil law systems. Civil law codes must be constantly changed because the precedent of courts is not binding and because courts lack authority to act if there is no statute.
In civil-law systems, codes are used to cover all eventualities and judges have a more limited role of applying the law to the case at hand. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, is a legal framework that allows couples to be considered married without registering their union formally as a civil or religious marriage. Common-law marriage is not common in the US, but several states have statutes or allow for common-law marriage under certain conditions. These include Alabama, which recently abolished the statutes allowing for common-law marriage, and the District of Columbia.
The requirements for common-law marriage vary by state, but generally include:
- Legal right or "capacity" to marry: Both partners must be legally capable of marrying, typically requiring that they are at least 18 years old, of sound mind, and not already married.
- Intent: Both partners must intend to be married and behave as a married couple, referring to each other in public as "partner", "spouse", etc., and holding themselves out to friends, family, and the community as "married".
- Cohabitation: The couple must live together for a period of time, with the length of time considered on a case-by-case basis by the court. Longer periods of cohabitation generally strengthen the case for common-law marriage.
Common-law marriage should not be confused with cohabitation or other legally formalized relationships, which may have similar rights and responsibilities to marriage but are not legally recognized as marriages. For example, in Canada, couples in marriage-like relationships may be treated similarly to married spouses for tax and financial purposes but are not legally considered married.
The history of common-law marriage dates back to ancient Greece and Rome, where marriages were private agreements between individuals and estates. In medieval Europe, marriage was under the jurisdiction of canon law, which recognized marriages even without witnesses as long as the parties stated they took each other as wife and husband. The Catholic Church later forbade clandestine marriages at the Fourth Lateran Council in 1215, requiring all marriages to be announced in a church by a priest. England abolished common-law marriages with the Marriage Act of 1753, but this did not apply to the American colonies, where common-law marriage survived and still exists today.
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Common law and contracts
Common law is a body of unwritten laws based on legal precedents established by the courts. It is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries, while civil law is more prescriptive, clearly defining the cases that can be brought to court and the procedures for handling them.
In the context of contracts, common law governs the formation and enforcement of agreements between parties. Contracts are legally binding agreements that create mutual obligations enforceable by law. The basic elements required for a legally enforceable contract under common law include mutual assent, expressed through a valid offer and acceptance, adequate consideration, capacity, and legality.
Offer and acceptance together form mutual assent. An offer gives the power of acceptance to another party and includes the agreement's essential elements, which must be definite and certain. Acceptance must be a "mirror image" of the offer to constitute valid acceptance, meaning it must be precisely the same as the offer.
Consideration refers to the bargained-for exchange of acts or promises, where both parties incur new legal obligations as a result of the contract. For example, an employment contract may outline an agreement to work for a specified period in exchange for a specified salary and benefits.
In addition to these elements, the parties to the contract must have the capacity to enter into the contract, and the contract must be for a legal purpose. Adults of sound mind have capacity, while minors may enter into contracts that they can later cancel.
It is important to note that common law contracts may have different requirements and implications depending on the jurisdiction. For example, in the United States, common law governs contracts for services and those not governed by the Uniform Commercial Code (UCC), which applies to contracts between merchants and the sale of goods.
Understanding the principles of common law and contracts is crucial for legal professionals to effectively advocate for their clients and uphold the integrity of contractual relationships.
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Common law and torts
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is considerably more complicated than civil law, with a greater emphasis on judicial decisions and extensive freedom of contract. Common law systems are found in former British colonies or protectorates, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
Tort law, a feature of common law systems, addresses fundamental questions of human social interaction. It lays out the minimal forms of conduct that people are legally entitled to demand of each other, identifying a range of wrongs for which one person can claim against another and, if successful, be awarded a remedy. Tort law can be contrasted with criminal law, which deals with criminal wrongs punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others.
Tort law protects each person's bodily integrity, mental health, reputation, privacy, freedom of movement, and property against various forms of interference. It also protects against deceit by others. Some intentional torts, such as assault and battery, can result in both a civil lawsuit and criminal prosecution in countries with separate legal systems. In the case of a continuing tort or threatened harm, courts may grant an injunction to prevent further harm.
The main remedy available to plaintiffs under tort law is compensation in damages, which may be nominal in cases where harm is minimal. In some jurisdictions, self-help may be tolerated as an appropriate remedy, and affirmative defences may be raised by the defence to shift or reduce liability. The standard of proof in tort law is lower than in criminal law, with plaintiffs needing to establish that it is more probable than not that the defendant satisfied each element of the tort.
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Common law and criminal cases
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is applied in civil cases (as distinct from criminal cases) and was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as a means of developing the body of law recognizing and regulating contracts. The type of procedure practised in common law courts is known as the adversarial system.
In common law, the doctrine of precedent, also known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases. In this system, the judge presiding over a case determines which precedents apply to that particular case. The decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority.
In criminal cases, the adversarial system involves two sides presenting their cases to a neutral judge. The prosecutor and adjudicator are two separate people. The prosecutor is lodged in the executive branch and conducts the investigation to locate evidence. That prosecutor presents the evidence to a neutral adjudicator, who makes a decision. On issues of fact, the onus of framing the case rests on the parties, and judges generally decide the case presented to them, rather than acting as active investigators, or actively reframing the issues presented.
In the jurisdictions of England and Wales and Northern Ireland, since 2009, the Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts. It is the final court of appeal for civil law cases in all three of the UK jurisdictions, but not for criminal law cases in Scotland, where the High Court of Justiciary has this power instead.
In Canada, the consolidation of criminal law in the Criminal Code, enacted in 1953, involved the abolition of all common law offences except contempt of court. In New Zealand, the ability to be proceeded against at common law for being a party to a criminal offence was abolished by section six of the Criminal Code Act 1893. In the United States, the ability to enforce common law offences in federal courts was found to be unconstitutional by the U.S. Supreme Court in United States v. Hudson and Goodwin, 1812. However, at the state level, the situation varies, with some states abolishing common law crimes and others continuing to recognize them.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is also known as case law.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Common law, on the other hand, is more flexible and adaptable to unforeseen situations as it relies on caselaw and legal precedent to guide its decisions.
Precedent, known as stare decisis, is a fundamental principle in common law. It means that judges need to follow earlier decisions and rulings when dealing with similar cases later. Precedent can significantly influence the criteria that a jury uses to interpret a case.
Common law systems typically have extensive freedom of contract, with few provisions implied into the contract by law. This means that it is important to set out all the terms governing the relationship between the parties in the contract itself.
In a common law system, the government may need to enact specific legislation to limit the scope of restrictions and enable successful infrastructure projects. Common law provides flexibility as it does not require lawmakers to pass changes in statutes, allowing higher courts to overrule prior decisions.
