Keith Mack
Common law systems are used in several countries around the world, including the United States and Canada. Common law, also known as case law, relies on the principle of stare decisis, which means that judges and courts must follow previous rulings and decisions when dealing with similar cases. In a common-law trial, the attorneys for the plaintiff and defendant present their cases to a neutral judge, who decides what evidence can be shown to the jury. The jury is selected at random and is responsible for listening to the facts of the case and determining the guilt or innocence of the defendant. The judge oversees the trial and ensures that the process is fair, making rulings on objections and ultimately informing the jury of the appropriate law and what they need to do to reach a verdict.
| Characteristics | Values |
|---|---|
| Definition | A "body of law" based on court decisions rather than codes or statutes |
| Basis | Legal precedents established by the courts |
| Sources | Institutionalized opinions and interpretations from judicial authorities and public juries |
| Nature of laws | Unwritten |
| Nature of court system | Adversarial |
| Nature of judge | Neutral |
| Nature of prosecutor | Separate from the adjudicator |
| Nature of criminal proceedings | Inquisitorial |
| Nature of magistrate | Dual-role |
| Nature of dossier | Contains evidence and arguments for both sides |
| Nature of trial | The magistrate is not neutral and may be biased |
| Jury selection | 12 jurors selected randomly from the jury pool |
| Jury decision | Unanimous decision to convict the defendant |
| Jury deliberation | No outside contact during deliberation |
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What You'll Learn
- Common law is a body of unwritten laws based on legal precedents
- Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries
- Common law is also known as case law
- Common law is distinct from civil law, which is a comprehensive, codified set of legal statutes
- Common law systems use an adversarial system, with two sides presenting their cases to a neutral judge
Common law is a body of unwritten laws based on legal precedents
Common law differs from civil law, which originated in mainland Europe and is a comprehensive, codified set of statutes that outline the procedures for handling claims and the punishments for offences. In contrast, common law systems do not have an official legal code, and judges must rely on previous precedents and records of similar situations to determine the appropriate standards of interpretation and evaluation for a given case. This means that common law is based on institutionalized opinions and interpretations from judicial authorities and public juries, with the goal of establishing consistent outcomes across similar cases.
The trial process in a common law system typically involves the presentation of facts and evidence to a jury, who then decide on the guilt or innocence of the defendant. The prosecutor and defence attorney play crucial roles in selecting jurors and presenting their respective cases, while the judge acts as an impartial referee, ensuring a fair process and ruling on objections and the admissibility of evidence.
In some jurisdictions, such as Canada, common law coexists with other legal systems. For example, within Canada, each province and territory is considered a separate jurisdiction with its own procedural laws in civil matters. While most Canadian provinces use a common law system for civil matters, Quebec follows a civil law system for issues within provincial jurisdiction.
The common law system and its reliance on legal precedents play a significant role in shaping the trial process and outcomes in countries that adhere to this legal framework. The unwritten nature of common law allows for flexibility and the incorporation of institutionalized opinions and interpretations, contributing to a dynamic and evolving legal landscape.
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Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that originated in England during the Middle Ages and spread to North America during the colonial period. Today, common law is used in several countries, including the US, Canada, India, and Australia.
At the heart of common law is the principle of stare decisis, a Latin phrase that means "to stand by things decided". This means that judges in common law systems are required to follow previous decisions and rulings, or case law, when dealing with similar cases. For example, if a court has previously made a decision based on a specific set of facts, that decision is binding on future cases that involve the same or closely related issues. The decisions of higher courts, such as a supreme court, are also typically binding on lower courts within the same jurisdiction.
Juries play a crucial role in common law trials. In criminal cases, the jury listens to the facts of the case and determines whether the defendant is guilty or not guilty based on the evidence presented by the prosecution and the defence. In the US, the Seventh Amendment guarantees the right to a trial by jury in certain cases, particularly in matters of private right. The amendment does not apply to cases in admiralty and maritime jurisdiction, nor to statutory proceedings unknown to common law, such as applications to a court of equity.
In civil cases, juries are also sometimes required, as in suits by a landlord to recover possession of real property or in cases of alleged racial discrimination in housing. The presence or absence of a jury can depend on whether the case involves "public rights" or "private rights". Public rights relate to the relationship between the government and persons subject to its authority, while private rights concern the liability of one individual to another.
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Common law is also known as case 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 originated in England during the Middle Ages and spread to North America during the 17th and 18th centuries. Today, several countries continue to rely heavily on common law to resolve legal disputes, including the United States, Canada, India, Australia, and New Zealand.
Case law, or common law, is used interchangeably and refers to law based on precedents or judicial decisions from previous cases rather than laws based on constitutions, statutes, or regulations. It uses the detailed facts of a legal case that has been resolved by courts or similar tribunals. These past decisions are referred to as "case law" or "precedent," and judges are bound to them by the principle of stare decisis, which means "let the decision stand." This means that judges must follow previous rulings when dealing with similar cases later.
The two main legal systems used today are common law systems and civil law systems. Civil law, in contrast to common law, is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the procedures for handling claims, the conditions for bringing cases to court, and the punishments for offenses. Civil law systems aim to create order and reduce bias by providing clear rules for judges to follow in specific disputes.
While civil law systems have a central role in creating consistent legal outcomes, common law systems also strive for consistency by applying the same standards of interpretation. Common law courts generally provide detailed explanations of their decisions, including citations of legislation and previous relevant judgments, often interpreting wider legal principles. This analysis, known as ratio decidendi, becomes a precedent binding on other courts.
In summary, common law, or case law, is a legal system that relies on judicial precedents and interpretations rather than written codes or statutes. It is a dynamic system that evolves through the application of past decisions to new cases, with judges playing a pivotal role in shaping the law.
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Common law is distinct from civil law, which is a comprehensive, codified set of legal statutes
Common law and civil law are the two main legal systems used throughout the world today. 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, also known as case 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 presiding judge determines which precedents apply to a particular case.
At the center of common law is a legal principle known as stare decisis, a Latin phrase that roughly 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. For example, decisions made by higher courts are typically binding on lower courts in the same jurisdiction.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It originated in mainland Europe and takes its roots from Roman law. Civil law has a written constitution based on specific codes that clearly outline everything from the procedures for handling claims to the punishment for offenses. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. Civil law clearly defines the cases that can be brought to court, whereas common law does not.
While civil law is regularly updated, the goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case. Common law, while less prescriptive, shares the goal of establishing consistent outcomes by applying the same standards of interpretation. In some instances, common law precedent depends on the case-by-case traditions of individual jurisdictions, which can result in elements of common law differing between districts.
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Common law systems use an adversarial system, with two sides presenting their cases to a neutral judge
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system that can be traced back to England during the Middle Ages and is still used today in several countries, including the US, Canada, India, and Australia. The common law system is centred around the principle of stare decisis, which means that judges need to follow earlier decisions and rulings when dealing with similar cases later on.
In a trial within a common law system, an adversarial approach is taken, with two sides presenting their cases to a neutral judge. This is different from civil law systems, where criminal proceedings follow an inquisitorial system. In the inquisitorial system, an examining magistrate plays a dual role by first developing the evidence and arguments for one side and then the other during the investigation phase. The magistrate then presents their findings to the president of the bench, who may not remain neutral when conducting the trial.
In a common law trial, the prosecutor and defence attorney work together to select jurors for the case. These jurors are responsible for listening to the facts of the case and determining whether the defendant is guilty or not guilty. During the trial, the prosecutor uses witnesses and evidence to prove to the jury that the defendant committed the crime. The defendant, represented by an attorney, also has the opportunity to present their side of the story using their own witnesses and evidence.
The judge in a common law trial acts as an impartial referee, ensuring that the process is fair for both sides. They decide what evidence can be shown to the jury and make rulings on objections raised by the attorneys. After hearing the testimonies and examining the evidence, the jury goes into deliberation, where they discuss and decide on the verdict. In federal criminal trials, the jury must unanimously agree on a verdict to convict the defendant.
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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 courts usually use an adversarial system, in which two sides present their cases to a neutral judge. In criminal cases, the prosecutor and adjudicator are two separate people. The prosecutor presents the evidence to a neutral adjudicator, who makes a decision.
A trial is a structured process where the facts of a case are presented to a jury, who decide if the defendant is guilty or not guilty of the charge offered. The prosecutor uses witnesses and evidence to prove to the jury that the defendant committed the crime. The defendant, represented by an attorney, also tells their side of the story using witnesses and evidence.
Civil law is a comprehensive, codified set of legal statutes created by legislators. A civil system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Unlike common law systems, civil law court decisions are not binding in other cases, even if the facts are similar.
