Cecily Zamora
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. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. Common law is deeply rooted in stare decisis, a Latin phrase that means to stand by things decided, where courts follow precedents established by previous decisions. In common law jurisdictions, litigation is 'fact-driven', and lawyers play an active role in establishing the facts and finding the applicable precedent. This article will explore the key principles and considerations for establishing common law jurisdiction in court, including the role of judges, the treatment of evidence, and the interplay between common law and other legal systems.
| Characteristics | Values |
|---|---|
| Basis of common law | Judicial precedent, judge-made law, or case law |
| Common law defined | A body of unwritten laws based on legal precedents established by the courts |
| Common law vs civil law | Common law is deeply rooted in stare decisis, which means "to stand by things decided". Civil law is a comprehensive, codified set of legal statutes created by legislators. |
| Common law jurisdictions | England, US, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom |
| Role of judges | Judges draw on experience and learning from everyday life, from other fields, and from other jurisdictions |
| Role of lawyers | Lawyers play an active role in litigation, which is 'fact-driven' in common law jurisdictions |
| Role of the judge | The judge functions as a neutral arbiter; judges of courts of appeal ultimately decide questions of law |
| Hearsay evidence | Hearsay evidence (assertions of someone other than the witness who is testifying) is inadmissible in court, but there are exceptions |
| Adaptability | Common law is adaptable and can respond to changes in society |
| Flexibility | Common law is flexible since it can address situations not originally predicted by lawmakers |
| Efficiency | Court proceedings can be shorter since judges only need to follow precedent when making decisions |
| Freedom of contract | Common law provides extensive freedom of contract, with few provisions implied into the contract by law |
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What You'll Learn
The role of judges and how cases are conducted
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 deeply rooted in stare decisis, which means "to stand by things decided". Judges play a crucial role in interpreting and applying the law in common law jurisdictions.
The presiding judge in a common law case determines which precedents to apply when deciding a new case. They draw on their experience and learning from everyday life, other fields, and other jurisdictions to interpret the law and establish new precedent when necessary. In a "case of first impression", where there is no clear precedent or legislative guidance, judges are empowered to resolve the issue and set a new precedent. This flexibility allows the common law to adapt to new situations not contemplated by the legislature.
In common law jurisdictions, the decisions of higher courts are typically binding on lower courts. While lower courts generally follow the precedent set by higher courts, they may modify or deviate from these precedents if they are outdated or if the current case significantly differs. However, overturning precedent is rare. The example set by higher courts promotes stability and consistency in the legal system.
The role of judges in common law jurisdictions is to interpret the law and apply it to the specific facts of a case. They rely on the parties to present the issues and act as neutral arbiters, deciding the case based on the arguments and evidence presented. In some jurisdictions, such as the adversarial system, judges generally decide the case as it is framed by the parties, rather than actively investigating or reframing the issues.
The conduct of cases in common law jurisdictions can vary depending on the specific jurisdiction and the type of case. In some jurisdictions, civil law may coexist with common law, providing a comprehensive set of written legal statutes that define the procedures for handling claims and determining punishments for offences. In contrast, common law focuses on applying precedents and institutionalised opinions to reach consistent outcomes.
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The admissibility of evidence
Admissible evidence in a court of law is any testimonial, documentary, or tangible evidence that may be introduced to a fact-finder—usually a judge or jury—to establish or to bolster a point put forth by a party to the proceeding. For evidence to be admissible, it must be relevant and not excluded by the rules of evidence. This means that it should not be unfairly prejudicial and it must have some indicia of reliability. The general rule in evidence is that all relevant evidence is admissible, and all irrelevant evidence is inadmissible.
In the United States, the exclusionary rule proscribes the prosecution from exploiting evidence obtained in violation of constitutional law, thereby rendering relevant evidence inadmissible. In the case of Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court laid out four non-exclusive factors that trial courts may consider when evaluating scientific expert reliability:
- Whether scientific evidence has been tested and the methodology with which it has been tested
- Whether the evidence has been subjected to peer review or publication
- Whether a potential rate of error is known
- Whether the evidence is generally accepted in the scientific community
Demonstrative or illustrative evidence is often presented in the form of objects that aid witness testimony in explaining or highlighting a key fact. Expert witnesses testify on complex issues and use demonstrative evidence to simplify technical terms and concepts. DNA evidence, for example, is so complicated that it requires an expert witness to interpret and explain it to the court. The court will allow expert testimony after establishing the witness's expertise and whether the witness used reliable methods acknowledged within the scientific community.
When one side of a case tries to introduce evidence that isn’t relevant, material, or competent, the other side can ask to suppress the evidence on admissibility grounds before or during the trial. This is commonly raised with chain of custody issues, where a piece of evidence isn’t adequately secured from its collection to trial.
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The influence of external factors
Another external factor is the historical and cultural context in which common law operates. Common law, also known as case law, evolved from English legal traditions and spread to former British colonies and protectorates, including the United States, Canada, Australia, India, and New Zealand. This historical connection influences the legal principles and practices in these countries. For example, the US and UK operate under a dual system of common and civil law, reflecting the interplay between their shared legal history and subsequent developments.
The interaction between common law and civil law is another external factor that shapes jurisdiction. Civil law, prevalent in mainland Europe and countries like Germany and France, provides a comprehensive code of statutes that outline procedures and punishments. In contrast, common law is more flexible and adaptable, allowing for the interpretation of institutionalized opinions and judicial rulings from previous cases. The differences between these systems influence how jurisdictions handle specific legal matters, such as bankruptcy and PPP arrangements.
Public opinion and social change also exert influence as external factors. Common law has been shaped by shifting societal norms and civil rights movements. For example, feminists in the 19th and 20th centuries faced challenges within the common law system when fighting for women's rights, illustrating how external pressures can lead to changes in legal interpretations and new legislation. Additionally, the authority of higher courts and the binding nature of their decisions within a jurisdiction impact lower courts' rulings, demonstrating the hierarchical structure of the legal system.
Furthermore, the specific jurisdiction's approach to precedent influences common law. For instance, Scottish common law historically focused on discovering the underlying principles justifying a law rather than solely relying on previous cases as precedents. This unique blend of customary laws and uncodified civil law sets Scotland apart from other jurisdictions.
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The relationship between common law and civil law
Common law and civil law are two distinct legal systems that have influenced the laws of many countries around the world. Common law, also known as case law or judge-made law, originated in medieval England and is characterised by its reliance on judicial precedent and unwritten laws. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. Common law gives judges more freedom to interpret the law and adapt it to new situations, and it is influenced by institutionalised opinions and interpretations from judicial authorities and public juries.
On the other hand, civil law takes the form of legal codes and is derived from the Corpus Juris Civilis, overlaid with Napoleonic, Germanic, canonical, feudal, and local practices. Civil law is a comprehensive, codified set of legal statutes created by legislators, which clearly define the cases that can be brought to court, the procedures for handling claims, and the punishments for offences. While civil law is regularly updated, the goal of standardised codes is to create order and reduce bias in the legal system. Civil law holds case law secondary and subordinate to statutory law and gives less weight to judicial precedent.
The differences between common law and civil law also have practical implications for areas such as infrastructure projects and security interests. For example, certain terms and structures in infrastructure projects may be well-defined in civil law jurisdictions but not understood or applied in common law countries. Additionally, civil law does not have the concept of trusts, which are used in common law systems to enable security interests to be held by a trustee without the need for formal transfer or re-registration when new lenders are involved.
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The history of common law jurisdiction
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 the principle of stare decisis, which means "to stand by things decided". This means that judges need to follow previous rulings when dealing with similar cases later. Common law systems place great weight on precedent, while civil law judges tend to give less weight to judicial precedent.
The history of common law can be traced back to the 12th century in England, with the reign of King Henry II (1154-1189). During this period, there was a shift from local, informal power arrangements to a more formal and centralised system of royal justice. Henry II established permanent royal courts, such as the Courts of the King's Bench and of Common Pleas, in Westminster. This expansion of royal justice aimed to create a uniform system of law throughout the country, incorporating customary norms related to crime, family, property, and inheritance.
The development of common law was influenced by various factors, including the legacy of Anglo-Saxon institutions and the influence of Norman invaders. Elements of the Anglo-Saxon system that survived included the jury, ordeals or trials by combat, the practice of outlawry, and writs or royal orders. The use of writs played a significant role in extending the king's jurisdiction over property disputes and establishing a monopoly on legitimate violence.
Over time, common law evolved and spread beyond England. It became the foundation of the legal traditions in English-speaking countries and influenced the legal systems of former British colonies, including the United States, Australia, and many Commonwealth countries. Today, common law systems are used in various parts of the world, alongside civil law systems.
Common law has been described as flexible and adaptable, as it can respond to changes in society without requiring formal changes to statutes and codes. It promotes stability and consistency in legal systems and allows for the efficient resolution of disputes by following established precedents.
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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 is largely based on precedent—judicial rulings made in previous similar cases.
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 offence. Common law, on the other hand, draws from institutionalized opinions and interpretations from judicial authorities and public juries. It emphasizes precedent while allowing some freedom for interpretation.
In common law jurisdictions, litigation is 'fact-driven'. The facts of the case need to be established, and then the applicable precedent is found. The role of the lawyers is very active, while the judge functions as a neutral arbiter. Judges of courts of appeal ultimately decide questions of law.
