Cecily Zamora
Common law, also known as case law, is a legal system that is deeply rooted in stare decisis, which means to stand by things decided. It is a system that relies on judicial decisions and precedents to guide future rulings, rather than codes or statutes. Common law originated in England following the Norman Conquest in 1066 and has since spread to various parts of the world, especially former British colonies, including the United States, Canada, Australia, and India. This system is known for its stability, consistency, and flexibility, as it allows courts to address situations not originally predicted by lawmakers and adapt to changing societal trends and philosophies. While common law is one of the two main legal systems in use today, alongside civil law, it is important to note that some countries, like the United Kingdom, have multiple legal systems within their jurisdiction.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Origin | Common law originated in the early Middle Ages in the King's Court (Curia Regis) in England. |
| Basis | Common law is based on stare decisis, which means "to stand by things decided". |
| Judicial Decisions | In common law, judicial decisions are binding and are based on previous rulings and caselaw. |
| Flexibility | Common law is flexible and adaptable to changes in society, allowing courts to address unforeseen situations. |
| Precedent | Precedents are maintained over time through court records and are historically documented in collections of case law (yearbooks and law reports). |
| Influence | Common law is influenced by institutionalized opinions and interpretations from judicial authorities and public juries. |
| Stability and Consistency | Common law promotes stability and consistency by ensuring outcomes are based on previous caselaw rather than subjective viewpoints. |
| Efficiency | Common law can lead to shorter court proceedings as judges only need to follow precedent, saving time and money. |
| Contract Implications | Common law systems have fewer implied provisions in contracts, requiring more detailed terms to be set out in the contract itself. |
| Jurisdictions | Common law jurisdictions include former British colonies such as the United States, Australia, Canada, India, and Hong Kong. |
| Comparison to Civil Law | Common law is less prescriptive than civil law, providing more freedom of contract and allowing for everything that is not expressly prohibited. |
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What You'll Learn
Common law's origins
The common law, so named because it was common to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually supplanting the local folk courts and manorial courts.
The expanded system of royal justice that emerged in the late 1100s and the norms it upheld came to be called the ‘Common Law’, which at first meant simply the law that was the same, or ‘common’, throughout the country, as opposed to the diversity of regional or local law. The degree to which common law drew from earlier Anglo-Saxon traditions such as the jury, ordeals, the penalty of outlawry, and writs – all of which were incorporated into the Norman common law – is still a subject of much discussion.
In the 12th century, there was a shift across northwestern Europe from predominantly local, informal power arrangements typical of customary law to formal government organized along bureaucratic lines. In England, the key reign was that of Henry II (1154-1189), when the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King’s Bench and of Common Pleas) became established in Westminster, London. Previously, the king's court had been itinerant, meeting wherever the king happened to be. The creation of these permanent institutions was part of Henry's thorough reorganization of royal justice, which expanded geographically throughout the country and socially across all classes.
Common law 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. However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent.
The common law is more malleable than statutory law. Common law courts are not absolutely bound by precedent, but can, when an extraordinarily good reason is shown, reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy.
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Common law vs civil law
Legal systems in countries around the world are generally divided into two traditions: the Anglo-Saxon tradition of common law and the Latin/Roman tradition of civil law. There are about 150 countries that have civil law systems, while there are about 80 common law countries. Common law countries include the US and the UK, while civil law countries include Germany and France.
Common law was originally developed in England during the Middle Ages and was applied within British colonies across continents. It is based on the judicial principle of 'stare decisis', or the binding aspect of precedent. This means that past rulings are taken into consideration when deciding new cases. Common law systems make extensive use of statutes, but judicial cases are regarded as the most important source of law, giving judges an active role in developing rules. Common law is also less prescriptive than civil law, with extensive freedom of contract and a general principle that everything is permitted unless expressly prohibited by law.
Civil law, on the other hand, is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with notable examples including France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law systems rely on legal codes as the primary source of law, with judges applying the law to specific cases. Civil law is generally more prescriptive than common law, with more importance placed on legislation than on judicial opinions. In civil law, there is less emphasis on setting out all the terms of a contract, as ambiguities can be resolved by operation of law.
In terms of the appointment of judges, common law systems typically appoint judges after successful legal careers, while civil law jurisdictions tend to appoint recent university graduates.
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Common law in former colonies
Common law is deeply rooted in stare decisis, which means "to stand by things decided". It originated in the practices of the courts of the English kings following the Norman Conquest in 1066. England spread its legal system across the British Isles to Wales, Ireland and overseas colonies, which was continued by the later British Empire.
Many former colonies retain the common law system today, including the United States (both the federal system and individual states and territories, with some exceptions), and many other English-speaking or Commonwealth countries. 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. For example, Guyana and Saint Lucia have mixed common law and civil law systems.
The common law systems that former colonies have retained are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system. A reception statute is a statutory law that is often adopted by a former colony when it becomes independent, by which the new nation adopts pre-independence common law, unless explicitly rejected by the new nation.
However, the British transplantation of common law to its colonies did not have uniform outcomes. For example, in some former colonies, the civil law system was retained to respect the civil rights of local colonists, such as in Quebec, South Africa, and Sri Lanka.
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Common law in the US
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. It is deeply rooted in stare decisis, which means "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.
In the US, common law evolved from a British tradition that spread to North America during the 17th and 18th centuries. Common law is more malleable than statutory law. Common law courts are not absolutely bound by precedent but can, with good reason, reinterpret and revise the law without legislative intervention. This flexibility allows the law to adapt to new trends in political, legal, and social philosophy.
In the US, common law is found primarily at the state level, with a limited body of federal common law. At the state level, legislatures may subsequently codify common law rules from the courts of their state, either to give the rule the permanence of a statute or to modify or replace it. 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 that codified and expanded on the holding, which went into effect on January 1, 2020.
While common law is not widespread in the US, several states have statutes or allow for common law marriage if certain requirements are met. However, some states, such as Alabama, have recently abolished these statutes.
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Common law marriages
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is deeply rooted in stare decisis, where courts follow precedents established by previous decisions. Common law originated in the practices of the courts of English kings following the Norman Conquest in 1066, establishing a unified legal system. Many former colonies, including the United States, retain the common law system today.
The requirements for a common-law marriage vary by jurisdiction, but generally include cohabitation and the intention to be married. In some states, common-law marriages are recognised with the same rights as a formal marriage. For example, in the United States, common-law marriages have existed since colonial times and are still recognised in some states today. However, other states, such as Alabama, have abolished the statutes allowing for common-law marriage.
In Canada, while couples in marriage-like relationships may be granted many of the rights and responsibilities of a marriage, they are not legally considered married. Similarly, in Scotland, common-law marriage does not exist, although there was a form of irregular marriage called 'marriage by cohabitation with habit and repute' until 2006.
It is important to note that the term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation or other legally formalized relations. These interpersonal relationships may have parallel interpersonal statuses, such as domestic partnerships or civil unions, but they are not legally recognised as marriages.
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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.
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. 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 information gathered and applies the law to the facts.
Civil law is a comprehensive, codified set of legal statutes created by legislators. A civil law system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Common law, on the other hand, is more flexible and adaptable to unforeseen situations. It promotes stability and consistency in the legal system and is generally less prescriptive than civil law.
Common law originated in England and has been adopted by many former British colonies or protectorates, including the United States, Australia, Canada, India, and most Commonwealth countries. 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.
