Keith Mack
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin phrase that means to stand by things decided. Common law originated in England during the Middle Ages and has since spread to various parts of the world, including former British colonies. It is one of the two main types of legal systems, the other being civil law. Common law is more flexible than civil law as it can adapt to new trends and changes in society without legislative intervention. It is based on judicial decisions rather than statutes, giving weight to precedent and the style of reasoning inherited from the English legal system.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Other Names | Judicial precedent, judge-made law, case law, ratio decidendi |
| Basis | Court decisions, not codes or statutes |
| Sources | Draws from institutionalized opinions and interpretations from judicial authorities and public juries |
| Adaptability | Can address situations not originally predicted by lawmakers |
| Flexibility | Can respond to changes in society |
| Efficiency | Court proceedings can be shorter, saving time and money |
| Weight of Decisions | More recent decisions and decisions of higher courts carry more weight |
| Binding Decisions | Decisions of the highest court can generally only be overturned by that same court or through legislation |
| Freedom of Contract | Few provisions are implied into the contract by law |
| Country of Origin | England |
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What You'll Learn
Common law vs civil law
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It is largely based on stare decisis, which means "to stand by things decided". Common law originated in England during the Middle Ages and was spread across the British Empire, including the United States, Canada, Australia, India, and New Zealand. Many former colonies continue to use the common law system today. Common law systems give significant weight to judicial precedent and the style of reasoning inherited from the English legal system.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is characterized by a clear definition of the cases that can be brought to court, the procedures for handling claims, and the punishments for offences. Civil law developed in continental Europe and was spread through the colonies of European imperial powers such as Spain and Portugal. Civil law systems aim to create standardized codes to establish consistent outcomes and reduce bias.
The main difference between common law and civil law lies in their sources. Common law systems regard judicial cases as the most important source of law, giving judges an active role in developing rules. In contrast, civil law systems rely on codes to cover all eventualities, and judges have a more limited role of applying the law to specific cases. Common law is generally uncodified, meaning there is no comprehensive compilation of legal rules, while civil law is based on written legal codes.
Another distinction between the two systems is their approach to contracts. Common law systems provide extensive freedom of contract, with few provisions implied by law. This means that all the terms governing the relationship between the parties must be explicitly set out in the contract itself. In contrast, civil law systems imply many provisions into contracts, and parties may not be able to contract out of certain provisions.
In terms of infrastructure projects, common law systems offer more flexibility, as governments can enact specific legislation to protect citizens' rights and ensure fair practices. Civil law systems, with their emphasis on standardized codes, may require specific legislation to address unique infrastructure requirements or sector-specific needs.
In summary, common law and civil law represent two distinct legal traditions with different approaches to sources of law, judicial roles, codification, and contract provisions. Common law emphasizes judicial precedent and judge-made rules, while civil law focuses on comprehensive written codes and standardized procedures.
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Common law jurisdictions
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 deeply rooted in stare decisis, which means "to stand by things decided". In other words, courts follow precedents established by previous decisions.
Legal systems that rely on common law as precedent are known as "common law jurisdictions". Common law systems are considerably more complicated in practice than in theory. 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.
Many former colonies of the British Empire retain the common law system today. Approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law. Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States.
Common law systems are less prescriptive than civil law systems. Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints. Given that judges need only follow precedent when making decisions in common law systems, court proceedings can be much shorter, thereby saving everyone time and money.
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Common law as 'unwritten law'
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". In other words, common law is largely based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
The concept of common law as unwritten law is important to understand. Unwritten law refers to a set of laws that are not written down as statutes or ordinances but are instead based on customs and traditions. In the context of common law, this means that the authoritative rules derived from case law may not be explicitly written down but are discovered through the use of reason and interpretation. Judges often look beyond the written words of a precedent to understand the underlying principles and reasoning behind it. This allows for flexibility and adaptation to changing circumstances, as the law can be interpreted and applied differently based on the specific circumstances of a case.
The term "judge-made law" was introduced by Jeremy Bentham as a criticism of the legal profession's reliance on unwritten law. Bentham argued that common law, as unwritten law, reaffirmed pre-existing customs but did not create new laws. However, many notable writers, including A.V. Dicey, Oliver Wendell Holmes, and John Austin, eventually adopted the modern definition of common law as "case law" or ratio decidendi, which serves as binding precedent.
In practice, common law systems can be complex. The decisions of a court are binding only in a particular jurisdiction, and even within a jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts, while decisions of lower courts are only non-binding persuasive authority. Additionally, while common law courts are not absolutely bound by precedent, they can reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal, and social philosophy.
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Common law and precedent
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". In other words, common law is largely based on precedent—judicial rulings made in previous similar cases. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then, one must extract the principles, analogies, and statements by various courts to determine how the next court is likely to rule on the facts of the present case. More recent decisions and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts. Finally, one integrates all the lines drawn and reasons given and determines "what the law is". Then, one applies that law to the facts.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law sometimes proves to be the inspiration for new legislation to be enacted. A precedent, known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can apply to a case at hand. The judge presiding over a case determines which precedents apply to that particular case.
In practice, common law systems are considerably more complicated than the simplified system described above. 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.
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Common law marriages
A common-law marriage, also known as a non-ceremonial marriage, is a legal framework that allows couples to be considered married without having formally registered their union as either a civil or religious marriage. Common-law marriages are not common in the US, but a number of states have statutes or allow for common-law marriages if certain requirements are met. These include the legal capacity to marry, the intention to be married, and cohabitation.
In the US, common-law marriage has existed since the colonial days when America was a colony of England. The Clandestine Marriages Act of 1753 ended common-law marriages in England and Wales, requiring couples to be married by the Church of England. However, this did not apply to the American colonies, and common-law marriage survived in colonial America. Today, common-law marriage is recognized in seven states and the District of Columbia, and another nine states recognize it with some restrictions.
In Canada, while couples in marriage-like relationships may be granted many of the rights and responsibilities of a marriage, they are not legally considered married. They may be defined as "unmarried spouses" and treated the same as married spouses for certain purposes such as taxes and financial claims. Similarly, in Scotland, common-law marriage does not exist, but there was a form of irregular marriage called 'marriage by cohabitation with habit and repute' which applied to couples in special circumstances until 2006.
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 or celebrated in a formal civil or religious service. Community recognition of a marriage was largely what qualified it as a marriage, and civil and religious officials typically took no part in marriage ceremonies and did not keep registries. In medieval Europe, marriage fell under canon law, which recognized as valid a marriage in which the parties stated they took each other as husband and wife, even in the absence of any witnesses.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is more prescriptive than common law, which is more flexible and adaptable to unforeseen situations. Civil law is also more widely adopted globally, whereas common law is primarily found in former British colonies or protectorates.
Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and most of the member states of the Commonwealth. In the US, every state except Louisiana has a common law legal system.
