Gavin Howe
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. Common law originated in England during the Middle Ages and was spread to its colonies; today, approximately one-third of the world's population lives in common law jurisdictions. Common law systems are less prescriptive than civil law systems and are more flexible, as they can respond to changes in society. In practice, common law systems can be more efficient and adaptable, as they do not require lawmakers to pass changes in statutes and codes. However, they are also more complicated, as the decisions of a court are only binding in a particular jurisdiction, and even within a jurisdiction, some courts have more power than others.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| 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 | More flexible than civil law as it can respond to changes in society |
| Efficiency | Court proceedings can be shorter, saving time and money |
| Judicial decisions | Binding – 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 |
| Current usage | The US, Canada, India, Australia, Hong Kong, New Zealand, and the UK |
| Previous usage | Spread by the British Empire to its colonies, including those in North America during the 17th and 18th centuries |
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What You'll Learn
Common law vs civil law
Common law and civil law are the two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems. 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 the principle of stare decisis, which means "to stand by things decided". Common law systems give judges an active role in developing rules and are more flexible, as they can respond to changes in society.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It centres around a comprehensive code of statutes that outline the procedures for handling claims and the punishment for offences. Civil law systems are more prescriptive, and judges have a more limited role of applying the law to the case at hand. There are roughly 150 countries that have civil law systems, while there are about 80 common law countries.
The common law tradition emerged in England during the Middle Ages and was spread to British colonies across continents, including the United States. It established a unified legal system, gradually supplanting local folk courts and manorial courts. Many former colonies retain the common law system today, including Canada, Australia, India, and New Zealand. Civil law, meanwhile, developed in continental Europe and was applied in the colonies of European imperial powers such as Spain and Portugal. In the 19th and 20th centuries, it was also adopted by countries with distinctive legal traditions, such as Russia and Japan, seeking to reform their legal systems.
In a common law system, judicial decisions are binding and can only generally be overturned by the same court or through legislation. There is extensive freedom of contract, with few provisions implied into the contract by law. Everything is generally permitted unless expressly prohibited by law. In contrast, civil law systems may have separate administrative laws that govern certain arrangements, and contracts are enforced by administrative courts unless the contract specifies arbitration. Civil law systems also imply more provisions into a contract, giving less importance to setting out all the terms in the contract itself.
What Defines Common Law?
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs when two people who are legally capable of being married and who intend to be married, live together as a married couple and hold themselves out to the world as a married couple. It is worth noting that the term "common-law marriage" is often used incorrectly to describe cohabitation or other legally formalized relations.
In the United States, common-law marriage has existed since colonial times and is still recognized in several states and the District of Columbia, albeit with varying requirements. These states include:
- Texas
- Oklahoma
- New Hampshire (for probate purposes only)
- Utah (only if validated in a judicial proceeding)
In Texas, couples can register their common-law marriage by filing a declaration with the county clerk. If no declaration is filed, documents such as lease agreements, tax returns, and insurance policies may be requested to prove the marriage.
To meet the requirements of a common-law marriage, couples generally need to live together for a period of time (cohabitation) and hold themselves out as married to friends, family, and the community. However, there is no statutory requirement for the length of time a couple needs to live together, and the court considers each case individually.
In conclusion, while common-law marriage is not recognized in all jurisdictions, it is a valid and legal way for couples to marry in certain states, provided they meet the specific requirements of that state.
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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. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law originated in England during the Middle Ages and spread to the British Isles, and later to the colonies of the British Empire. Many former colonies, including the United States, Canada, India, and Australia, continue to rely heavily on common law when resolving legal disputes.
Common law is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In practice, this means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later. This is done to establish consistent outcomes by applying the same standards of interpretation. However, it is important to note that common law courts are not absolutely bound by precedent. In certain situations, judges can reinterpret and revise the law to adapt to new trends in political, legal, and social philosophy.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This includes ascertaining the facts, locating relevant statutes and cases, extracting principles, analogies, and statements from various courts, and then integrating all the information to determine the applicable law. Decisions of higher courts or legislatures carry more weight than those of lower courts.
The value of a common-law system is its adaptability and flexibility. It can address situations that were not contemplated by the legislature and respond to changes in society. Common law can also inspire new legislation to be enacted. However, the traditions of common law have also led to the marginalization and disempowerment of certain groups due to outdated or biased past decisions.
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Common law and contract law
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 originated in England during the Middle Ages and spread to the British Isles, North America, and other colonies. Today, approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law.
Contract law, on the other hand, is a branch of law that deals specifically with contracts, which are promises enforceable by law. Contract law strives to give legal expression to the varying desires and purposes of individuals who assume legal obligations. In common law jurisdictions, contract law has developed a set of default rules that courts use to fill gaps in otherwise incomplete contracts. These rules can be applied almost independently of context, such as the market damages rule, which requires courts to know the difference between market and contract prices.
In the United States, two primary sources of law govern contracts: the common law and the Uniform Commercial Code (UCC). The UCC contains two sets of rules: one for everyone and one for merchants. Common law governs contracts for services and contracts not otherwise governed by the UCC. The elements of common-law contract formation include offer, acceptance, and consideration. Offer and acceptance together form mutual assent. For acceptance to be valid, it must be a mirror image of the offer, and both parties must incur new legal obligations as a result of the contract.
While common law systems rely on case law and legal precedent to guide their decisions, civil law systems rely primarily on codes and statutes. Civil law provides a comprehensive set of legal statutes that outline the procedures for handling claims and punishments for offenses. Unlike common law, civil law court decisions are not binding in other cases, even if the facts are similar. Common law is more flexible than civil law, as it can adapt to new trends in political, legal, and social philosophy without legislative intervention.
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Common law in former colonies
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 originated in England during the Middle Ages, following the Norman Conquest in 1066, and gradually spread across the British Isles to Wales, Ireland, and eventually overseas colonies. 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.
Many former colonies, including the United States, Canada, India, Australia, and Hong Kong, continue to retain the common law system. These legal systems give significant weight to judicial precedent and the style of reasoning inherited from the English legal system. For example, in the United States, every state except Louisiana has a common law legal system, and American corporations often include a Delaware choice of law clause in their contracts due to the deep body of law in Delaware on corporate issues.
In the context of former colonies, the transplantation of common law by the British to their colonial territories provided the institutional foundation for promoting strong development outcomes. However, the actual impact of colonial rule on the contemporary rule of law in these countries varied. For instance, an examination of eight formerly British-controlled territories (Barbados, Jamaica, Botswana, Nigeria, Kenya, India, Burma, and Singapore) revealed diverse modern rule of law indicators, suggesting that other dynamics of the colonial institutional environment may have influenced their legal development.
Furthermore, the degree of representation of the indigenous population in legislative bodies and the integration of indigenous and British common law courts and values played a role in shaping the legal landscape of former colonies. This integration fostered the development of localized common law jurisprudence, which influenced the subsequent rule of law outcomes in these countries.
In conclusion, while many former colonies continue to adhere to the common law system, the specific legal developments and outcomes in these countries are shaped by a complex interplay of historical, cultural, and institutional factors. The legacy of colonialism and the adoption of common law have had varying impacts on the legal frameworks of these nations, reflecting the complexities of their colonial experiences and post-colonial trajectories.
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Frequently asked questions
Common law is a body of law based on legal precedents established by the courts. It is also known as case law.
Civil law is a comprehensive, codified set of legal statutes created by legislators. Common law, on the other hand, is more flexible and adaptable to unforeseen situations as it is not bound by precedent.
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 locate any relevant statutes and cases, and finally, apply the relevant law to the facts.
The common law system as we know it started in England during the Middle Ages and was spread to its colonies. Many former colonies, including the US, Canada, India, and Australia, continue to rely heavily on common law.
Common law provides efficiency as judges only need to follow precedent when making decisions, saving time and money. It also offers adaptability and flexibility as it can respond to changes in society without requiring lawmakers to pass changes in statutes.
