Keith Mack
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, where courts adhere to precedents established by previous rulings. Common law originated in England after the Norman Conquest in 1066, as a unified legal system that supplanted local folk and manorial courts. Over time, it spread to various parts of the world, including North America, Australia, Canada, Hong Kong, India, New Zealand, and the British Empire's 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. When referencing common law, it is important to cite official sources such as European Court Reports (ECR) or reputable law reports, providing relevant case details, court information, dates, and pinpoint citations for specific paragraphs or pages.
| Characteristics | Values |
|---|---|
| Name of the case | In italics |
| Case number | In brackets |
| Commission Decision number | Where available |
| OJ report | Alcatel/Telettra (Case IV/M.042) Commission Decision 91/251/EEC [1991] OJ L122/48 |
| Court of First Instance | Give the case registration number in roman and then the name of the case in italics, with no punctuation between them |
| Official European Court Reports | Cited as ECR |
| Common Market Law Reports | CMLR |
| Advocate General | Add the words 'Opinion of AG [name]' after the case citation and a comma, and before any pinpoint |
| Precedent | Stare decisis |
| Court Decisions | Rules of law developed by the courts as opposed to statutes |
| Court | Give the court and the date of the judgment in brackets after the name of the case |
| Judgement | Refer to a specific paragraph of a judgement or page of a report |
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What You'll Learn
Precedent and stare decisis
Common law, also known as case law or judge-made law, is deeply rooted in the principle of stare decisis, which translates from Latin to "let the decision stand" or "to stand by things decided". This means that common law is primarily developed through judicial decisions and rulings made in previous similar cases, rather than statutes.
Stare decisis is a foundational concept in the American legal system, requiring that courts and judges honour precedent, or the decisions, rulings, and opinions from prior cases. This gives the law consistency and makes interpretations of the law more predictable. There are two types of stare decisis: vertical and horizontal. Vertical stare decisis dictates that the decisions of higher courts take precedence over the decisions of lower courts, while horizontal stare decisis holds that prior decisions made by courts at the same appellate level should provide precedent for future cases heard by similar courts.
In common law, precedent can be either binding or persuasive. Binding precedent, based on the legal principle of stare decisis, requires lower courts to follow the decisions of appellate courts in the same jurisdiction. When an appellate court resolves a legal question, its determination becomes a binding precedent that lower courts are required to apply in similar cases. On the other hand, persuasive precedent is something that courts can consider but do not have to follow.
While stare decisis is a critical principle in common law, there are nuances and limits to its application. For example, judges may choose to depart from precedent if they believe that following it would lead to an unjust outcome. In such cases, judges must provide reasons for their decision to overturn or avoid following precedential rulings. Additionally, in cases of first impression where no binding precedent exists, judges are empowered to establish new precedent.
The concept of stare decisis is not limited to common law. Civil law systems, such as the French Cassation Court and the Council of State, also recognise the importance of predictability and consistency in judicial decisions. While civil law is based on comprehensive codes and detailed statutes rather than precedent, the doctrine of jurisprudence constante dictates that previous decisions that have consistently arrived at the same holdings using sound reasoning are highly persuasive, even if they are not controlling.
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The role of judges
In common law, judges play a pivotal role in shaping the legal landscape. Also known as judicial precedent, judge-made law, or case law, common law is a body of unwritten laws primarily shaped by judicial decisions rather than statutes. This means that judges' rulings in previous cases serve as precedents for future similar cases, a principle known as stare decisis ("to stand by things decided"). Judges are tasked with determining which precedents to apply when deciding new cases, ensuring consistency and stability in the legal system.
The path to becoming a judge in common-law countries differs from other legal traditions. Typically, individuals undergo formal legal education and then spend considerable time in private law practice or, less frequently, in law teaching or governmental legal service. Judges are appointed or elected, and there is no competitive examination. In England, an appointive system is prevalent for all judicial levels, including lay magistrates, with a Judicial Appointments Commission controlling appointments.
Judges in common-law countries enjoy greater independence compared to their civil-law counterparts. They are generally free from party politics and external supervision or inspection by a council of judges or a minister of justice. They cannot be transferred from court to court or from place to place based on the decisions they make. This independence allows judges to act as neutral arbiters, deciding cases presented to them based on the evidence and arguments put forth by the opposing sides.
Additionally, common law judges have a unique role in inspiring new legislation. The decisions and interpretations of judges in common law can influence and shape future laws, contributing to the dynamic nature of the legal system. Overall, the role of judges in common law is crucial in upholding the principles of stare decisis, ensuring consistency in legal reasoning, and adapting the law to address new and complex issues.
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Common law jurisdictions
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 draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is deeply rooted in stare decisis, which is a Latin phrase that roughly means "to stand by things decided". In other words, courts follow precedents established by previous decisions.
Many countries continue to rely on common law legal systems, including the United States, Canada, Australia, Hong Kong, India, New Zealand, and the United Kingdom. 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.
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. Relevant statutes may be found in law reports published by government or private-sector publishers. Private-sector publishers often add indexing, including references to the key principles of the common law involved, editorial analysis, and similar finding aids. 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. 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 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 in the US
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". In the US, common law is derived from judicial decisions rather than statutes, with prior court decisions interpreting a statute taking precedence and being binding.
The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions, which newer states often looked to for authoritative precedents as a basis for their own common law.
Today, the US federal courts and many US states continue to operate under a common law system, although none of these systems are technically pure common law systems. This is because, in addition to common law, there are countless codified statutes that courts must also take into consideration. Statutes generally supersede common law and may codify existing common law, create new causes of action, or legislatively overrule the common law.
At the state level, legislatures often subsequently codify common law rules from the courts of their state. For example, in 2018, the California Supreme Court issued a ruling that articulated a three-part test for determining whether California workers were independent contractors or employees. The California Legislature responded by creating a new section of the Labor Code, which codified and expanded on the holding and went into effect on January 1, 2020.
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Common law in the UK
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is a system that gives great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law is practised in several countries besides the UK, including Australia, Canada, Hong Kong, India, and New Zealand, and the United States.
The UK's legal system is comprised of three major legal systems: England and Wales, Scotland, and Northern Ireland. The common law system in England has directly influenced that of Wales and Ireland, but only partially influenced the distinct legal system in Scotland. Civil cases in England and Wales usually start in the County Court, with appeals going to the High Court and then the Court of Appeal.
English criminal law draws its main principles from common law. The main elements of a crime are the actus reus (doing something criminally prohibited) and mens rea (having the criminal state of mind). Common law crimes in the UK include murder, manslaughter, theft, and robbery.
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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 also known as judicial precedent, judge-made law, or case law.
When referencing common law, or case law, you should refer to official reports, such as the European Court Reports (ECR) or the Common Market Law Reports (CMLR). If a case is reported in this series, it should be cited in preference to any other report. If a judgment is not reported in the Law Reports, cite the Weekly Law Reports or the All England Law Reports.
If a judgment is not reported in one of these general series, you should refer to a specialist series, such as the Lloyd's Law Reports or the Family Law Reports. If a case is unreported but has a neutral citation, give that.
If the judgment has numbered paragraphs, pinpoint to a particular paragraph by putting the relevant paragraph number in square brackets. If you are citing multiple paragraphs, separate the paragraph numbers in square brackets with a comma. If citing spans of paragraphs, insert a dash between the first and last paragraph being cited.
