Cecily Zamora
The terms 'law' and 'act' are often used interchangeably, but there are key differences between the two. An act is a piece of legislation passed by a legislative body, such as a parliament, to address a specific issue or area. It is drafted as a proposal, discussed, and then voted on. On the other hand, a law is a general term encompassing the entire legal system, including rules, regulations, principles, and precedents that govern a society. Common law, in particular, is a body of unwritten laws based on legal precedents established by the courts. It is derived from medieval England but is still in effect in the US and other countries today. The value of common law lies in its adaptability to situations not contemplated by the legislature.
| Characteristics | Values |
|---|---|
| Definition | A body of unwritten laws based on legal precedents established by the courts |
| Origin | Medieval England |
| Current use | Still in effect in the US and elsewhere |
| Examples | Common-law marriage; the Voyeurism (Offences) Act |
| Strengths | The reliance on judicial opinion; the ability to predict whether an action is likely to be lawful or unlawful |
| Weaknesses | Rigidity; unfairness |
| Comparison with Acts | Common law is more open to interpretation; Acts are specific pieces of legislation |
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What You'll Learn
Common law is a body of unwritten laws
The term "common law" refers to a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England, but it is still in effect in the US and other countries today. Common law is sometimes referred to as “case law” or "judge-made law". It is a system of law that is based on judicial decisions rather than statutes or constitutions.
The reliance on judicial opinion is a strength of common law systems, as it provides guidance on various issues, allowing parties to predict whether a proposed course of action is likely to be lawful or unlawful. This predictability is especially beneficial in commercial contracts, creating greater wealth. Common law is also flexible, allowing for interpretation and adaptation to new situations.
The doctrine of precedent in common law developed during the 12th and 13th centuries, influenced by tradition, custom, and precedent. Common law was widely considered to derive its authority from ancient Anglo-Saxon customs until the early 20th century. The form of reasoning used in common law is known as casuistry or case-based reasoning, and it involves drawing on institutionalized opinions and interpretations from judicial authorities and public juries.
While common law is a significant legal system, it is not the only one. Many countries use another system called civil law, which differs from common law in its reliance on codes and statutes rather than case law and legal precedent. Civil law provides clear rules for judges to follow in specific disputes, reducing bias and creating standardized codes. However, civil law systems may lack the flexibility and adaptability of common law.
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Common law is based on legal precedents
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law, also known as case law, draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. The presiding judge determines which precedents to apply in deciding each new case.
The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions that were based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. Common law decisions today reflect both precedent and policy judgment drawn from economics, the social sciences, business, decisions of foreign courts, and other factors.
Common law is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law is based on previous rulings in similar cases, and it allows for interpretation and adaptation to new situations. The value of a common-law system is that the law can be adapted to situations that were not contemplated at the time by the legislature. Common law may also prove to be the inspiration for new legislation.
The United States operates under a dual system of both common and civil law. Common law is also practiced in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. The law of India, Pakistan, and Bangladesh are largely based on English common law due to the long period of British colonial influence during the British Raj. Ancient India had a distinct tradition of law, with influential treatises such as the Arthashastra and Manusmriti considered authoritative legal guidance.
While common law is not common in the United States, some states have statutes or allow for common-law marriage if certain requirements are met. Common-law marriage acknowledges similar rights as those with a marriage license to couples who are not officially married.
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Common law is adaptable to new situations
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England, but it is still very much in effect in the US, UK, Canada, India, Australia, and elsewhere today. Common law is adaptable to new situations in several ways.
Firstly, common law emphasizes precedent while allowing some freedom for interpretation. This flexibility allows the law to be adapted to situations that were not contemplated at the time by the legislature. For example, the UK has long had a common-law offence of "outraging public decency". In recent years, authorities have used this precedent to prosecute a new intrusive activity called "upskirting". In 2019, the UK Parliament passed the Voyeurism (Offences) Act, officially making upskirting a crime. This demonstrates how common law can adapt to new situations by interpreting and applying existing precedents to new contexts.
Secondly, common law is adaptable because it is deeply rooted in stare decisis, which means "to stand by things decided". This principle promotes stability and consistency in the legal system, as courts typically follow precedents established by previous decisions. However, in cases without clear legislative guidance, judges are empowered to resolve the issue and establish new precedents. This adaptability allows common law to evolve and address situations not originally predicted by lawmakers.
Thirdly, common law is adaptable due to its reliance on judicial opinion and case-based reasoning. This allows for efficiency, as judges can quickly refer to previous rulings and make decisions based on established precedents. It also enables parties, especially commercial parties, to predict the legality of proposed actions and operate with greater assurance of consistency. This predictability can lead to more economically efficient contracts and greater wealth creation.
Lastly, common law is adaptable because it can respond to changes in society. For example, Ghana follows the English common law tradition inherited during colonization. Over time, Ghana's legal system has adapted to changing socio-economic and political realities, demonstrating how common law can evolve to fit the specific needs and contexts of different societies.
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Common law is derived from medieval England
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that gives great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law is derived from its original appearance in medieval England, and it has been administered by the common-law courts of England since the Middle Ages.
The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government. Crimes were treated as wrongs for which compensation was made to the victim. The Norman Conquest did not bring an immediate end to Anglo-Saxon law, but a period of colonial rule by the mainly Norman conquerors produced change. Land was allocated to the king's feudal vassals, and serious wrongs were regarded mainly as public crimes punishable by death and forfeiture of property.
The doctrine of precedent developed during the 12th and 13th centuries as collective judicial decisions based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases, was devised as a means of compensating someone for wrongful acts known as torts, including intentional torts and torts caused by negligence, and developing the body of law recognizing and regulating contracts. The type of procedure practised in common law courts is known as the adversarial system, which is also a development of common law.
In 1154, Henry II became the first Plantagenet king. Among his many achievements, Henry II institutionalized common law by creating a unified system of law "common" to the country. He did this by incorporating and elevating local customs to the national level, ending local control and eliminating arbitrary remedies. The early development of case law in the 13th century has been traced to Bracton's "On the Laws and Customs of England," which led to the yearly compilations of court cases known as Year Books. The Year Books are known as the law reports of medieval England and are a principal source of knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when common law developed into a recognizable form.
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Common law is in effect in the US and elsewhere
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England, but it is still very much in effect in the US and elsewhere today. The US federal courts relied on private publishers until after the Civil War, and only began publishing as a government function in 1874. The largest private-sector publisher of law reports in the US is West Publishing in Minnesota.
Common law is also in effect in the UK, where it contributes to robust commercial systems. The UK Parliament passed the Voyeurism (Offences) Act in 2019, officially making upskirting a crime. This is an example of common law in action, as it is a body of unwritten laws based on legal precedents.
Common law also has a presence in India. When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were supplanted by common law. As a result, the present judicial system in India largely derives from the British system.
Common law is more malleable than statutory law. Common law courts are not bound by precedent, but can, for an extraordinarily good reason, reinterpret and revise the law without legislative intervention. This ability to leave the legal code open for interpretation will become increasingly important as technology continues to evolve and grow in importance in our lives.
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Frequently asked questions
An Act is a specific piece of legislation enacted by a legislative body, such as a parliament, that addresses a particular issue or area. A Law is a broader term that includes Acts, regulations, and judicial decisions that collectively form the legal framework of a jurisdiction.
Common law is a body of unwritten laws based on legal precedents established by the courts. An Act is a formal decision made by a legislative body, so it is not common law. However, an Act may change or abolish a common law rule.
Common law first appeared in medieval England and is still in effect in the US and other countries today. It was institutionalised by Henry II in 1154, who created a unified system of law "common" to the country.
