Gavin Howe
Common law is a body of unwritten laws based on legal precedents established by courts. It is a system of law that originated in England during the Middle Ages and has since spread to several other countries, including the United States, Canada, India, Australia, and New Zealand. Common law, also known as case law, draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is often contrasted with civil law, which is based on comprehensive legal codes and leaves judges with less discretion in deciding cases. The influence of common law can be seen in the legal systems of former British colonies, such as the United States and Commonwealth countries, as well as in the development of human rights and the role of courts in creating and reviewing laws.
| Characteristics | Values |
|---|---|
| Based on judicial decisions | Decisions made by higher courts are typically binding on lower courts in the same jurisdiction |
| Influenced by Roman Law | The first common law scholars were well-acquainted with Roman Law |
| Influence of old maxims | "One cannot be a judge in one's own cause" |
| Influence on legal systems in the United States, Commonwealth countries, Canada, India, Australia, New Zealand, and the United Kingdom | The U.S. common-law system evolved from British tradition |
| Unwritten laws | Based on legal precedents |
| Adaptable and flexible | Can respond to changes in society |
| Influence on property law | Based on the use of royal writs |
| Influence on human rights | Influenced by the European Convention on Human Rights (1950) |
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What You'll Learn
Influence of common law on the US
The influence of common law on the US legal system is profound. Common law, a body of customary law or unwritten laws based on legal precedents established by the courts, has its roots in England and can be traced back to the Middle Ages. The English common law system was largely created in the period after the Norman Conquest of 1066, with local customs and the church governing most matters. Over time, the English common law developed and, during the 17th and 18th centuries, it spread to the American colonies, influencing the legal system that evolved in what became the United States.
The US common-law system is a direct descendant of English common law, which was imposed on the colonies. For example, in the colony of New York, after the English regained control, they imposed their variant of common law on all the colonists, including those of Dutch origin who had previously followed Dutch customary law. This action highlights how common law, as imposed by the British, became the dominant legal system in the colonies and, later, the early United States.
The influence of English common law on the US legal system continued well into the 19th century, with ancient maxims playing a significant role in common-law adjudication. Many of these maxims, such as "one cannot be a judge in one's own cause", originated in Roman Law and migrated to England before the introduction of Christianity. Judicial decisions, such as those of Lord Chief Justice Edward Coke, further reinforced the reliance on old maxims and rigid adherence to precedent.
The adaptability and flexibility of common law have also influenced the US legal system. Common law allows courts to address situations not originally predicted or covered by existing statutes. Higher courts in common-law systems can overrule prior decisions as "bad law" without waiting for lawmakers to act, which gives the system a certain dynamism. This flexibility enables the legal system to respond to changes in society and has contributed to the evolution of the US legal system over time.
In conclusion, the influence of common law on the US is significant and has helped shape the country's legal framework. The US common-law system, with its roots in English legal traditions, has been adapted and moulded to fit the needs and context of the United States, contributing to the unique legal landscape of the country.
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Common law in the Commonwealth
Common law, also known as judicial precedent, judge-made law, or case law, is a legal system that originated in England after the Norman Conquest of 1066. It is a body of customary law based on judicial decisions and administered by the common-law courts of England since the Middle Ages. Common law stands in contrast to civil law, which is widespread in continental Europe and elsewhere.
The English legal system spread across the British Isles to Wales and Ireland, and then to overseas colonies, and later throughout the British Empire. Many former colonies, including most Commonwealth countries, retain the common law system today. These common law systems give significant weight to judicial precedent and the style of reasoning inherited from the English legal system.
Common law countries have developed distinctive variations over time. For example, in the area of divorce law, most common-law countries follow the English model that allows judges to use their discretion in reallocating the property and income of spouses, while some American states adhere to the principle of equal distribution. In the area of public law, England and the United States have notable differences. England lacks a written constitution and restricts judicial review, while every court in the United States can rule on the conformity of legislation and official actions to constitutional norms.
In the context of international contracts, parties in different jurisdictions often choose the law of England and Wales, particularly when they are each in former British colonies and members of the Commonwealth. This choice is driven by the commercial parties' desire for predictability and simplicity in their contractual relations.
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Common law in the UK
English common law was influenced by Roman Law, which had already been established on the continent, and by clerics trained in Roman canon law. One of the most significant treatises of common law, Bracton's *De Legibus et Consuetudinibus Angliae* (On the Laws and Customs of England), was heavily influenced by the division of law in Justinian's Institutes. Common law in England and Wales has also directly influenced the legal system in Ireland, and partially influenced the distinct legal system in Scotland.
English criminal law derives its main principles from common law. The two main elements of a crime are the actus reus (doing something prohibited) and the mens rea (having the criminal state of mind). Common law also covers a range of crimes, from manslaughter and murder to theft and robbery, as well as regulatory and statutory offences. While statutory legislation is the most authoritative law, common law forms the basis in the absence of statutory law, with its principle of stare decisis, or the reliance on precedent.
The UK's legal system was integrated into the European Union (EU) law in 1973, which influenced the domestic law of its constituent states. However, the UK exited the EU in 2020. The European Convention on Human Rights (1950) has also influenced UK law since the passage of the Human Rights Act 1998.
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Common law in Israel
The core of Israeli law is based on a common-law legal system, established by the British during their military administration of Palestine from 1917 to 1920. This system was derived from English law, though it did not include jury trials and included a codified criminal law, similar to that used in British India.
The Israeli Declaration of Independence, signed on 14 May 1948, asserted that a formal constitution would be written, but this has been continuously postponed since 1950. Instead, the Basic Laws of Israel function as the country's constitutional laws. These laws are influenced by the individual liberties outlined in the Declaration of Independence and are subject to interpretation by the judicial system.
The Israeli legal system has its own unique characteristics, reflecting the diverse history of the territory. It is influenced by Ottoman, British, and Israeli law, as well as the legal systems of its major religious communities. The system is structured around three main levels of courts: the Magistrate Courts, the District Courts, and the Supreme Court.
During the 1960s, there was a push to codify common law in areas of contracts and torts, blending common law, local case-law, and new ideas. In 1977, the Knesset codified the penal code, and since the 1990s, there has been work towards a complete recodification of civil laws.
While the Israeli Supreme Court has rejected the idea that the Declaration of Independence serves as the nation's constitution, it has acknowledged the influence of the Basic Laws, which now form a written constitution that can be upheld via judicial review.
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Historical influence of Roman law
The Roman Empire, at its height, stretched across three continents and encompassed a diverse range of cultures and legal traditions. As the empire expanded, it brought with it a legal system that would form the basis of modern civil law. This Roman law, developed in ancient Rome, was characterised by its systematic organisation of legal principles and emphasis on legislation. It was founded on the concept of ius scriptum, or written law, with legal experts known as jurists or jurisconsults offering their interpretations to the public. These legal commentaries formed the basis of the law, and over time, Roman law came to be codified in works such as Justinian's Corpus Juris Civilis.
As the Roman Empire split and declined, its legal influence remained strong in continental Europe and spread to other parts of the world through colonisation. In Western Europe, the legal traditions of the Romans merged with local customs and evolved into what became known as civil law. This civil law system spread to colonies in Central and South America, as well as Central and Eastern Europe, and East Asia. The French Civil Code, for example, mirrored Justinian's Civil Code, and was spread to other colonies through Napoleon's conquests.
In contrast to the civil law system, common law developed in England and emphasised judicial precedent and flexibility. Common law is governed by formal orders known as precedents or past judicial decisions, allowing for gradual evolution through court decisions. While England adopted the common law system, its former colonies, including the United States, Canada, India, and Australia, also adopted variations of it, adapting it to their own contexts.
Despite their differences, both Roman and common law share some similarities. Both systems, for instance, divide legal actions into two stages: the first devoted to identifying the legal issue and the second to its proof and decision, which is assigned to a lay tribunal. Additionally, both systems recognise two distinct bodies of law: traditional rules that are rigid and difficult to change, and a more flexible set of rules based on fairness and justice.
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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 case law or customary law.
Common law has influenced the legal systems of many countries, particularly those that were once colonies of England or other Commonwealth countries. For example, the United States, Canada, India, Australia, New Zealand, and Hong Kong.
Common law is flexible and adaptable, allowing courts to address situations not originally predicted by lawmakers. It relies on caselaw and legal precedent to guide decisions, with higher courts sometimes overruling prior decisions as "bad law".
