Cecily Zamora
Common law, also known as case law or judge-made law, is a body of law based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later. Common law is primarily developed through judicial decisions rather than statutes, with judges empowered to resolve issues and establish new precedents in cases of first impression. It is a legal system used in several countries, particularly those that were former British colonies or protectorates, such as the United States.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of law derived from judicial decisions, rather than statutes. |
| Other names | Judge-made law, case law, judicial precedent |
| Basis | Common law is based on precedent—judicial rulings made in previous similar cases. |
| History | Common law operated as the primary source of law for several hundred years before parliaments acquired legislative powers to create statutory law. |
| Sources | Common law is deeply rooted in stare decisis, which means that courts follow precedents established by previous decisions. |
| Applicability | Common law is used in several countries, including the United States and most Commonwealth countries. |
| Flexibility | Common law allows judges to modify or deviate from precedents if they are outdated or if the current case differs substantially from the precedent case. |
| Critics | Jeremy Bentham criticised the concept of common law, coining the term "judge-made law". |
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What You'll Learn
- Common law is deeply rooted in stare decisis, meaning to stand by things decided
- Common law is also known as case law
- Common law is derived from judicial decisions, not statutes or constitutions
- Common law is based on precedent—judicial rulings made in previous similar cases
- Common law is a body of unwritten laws
Common law is deeply rooted in stare decisis, meaning to stand by things decided
Common law, also known as case law, is a body of law primarily developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which means "to stand by things decided".
Stare decisis is a precedent, or a history of judicial decisions, that forms the basis of evaluation for future cases. In other words, stare decisis is a doctrine that prioritises consistency by requiring courts to 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 role of judges in common law is crucial. Judges present the precedents that apply to a case, and they can significantly influence the criteria that a jury uses to interpret a case. The presiding judge determines which precedents to apply when deciding each new case. 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 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. These Year Books are known as the law reports of medieval England and are a principal source of knowledge for the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when common law developed into a recognisable form.
In the United States, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This means that they can interpret statutes and constitutions and engage in common-law judging, or the development of common-law doctrines.
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Common law is also known as case law
Common law, also known as case law, is a body of law primarily developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. This means that common law is based on the rulings made in previous similar cases. The judge presiding over a case determines which precedents apply to that particular case.
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. These Year Books are known as the law reports of medieval England and are a principal source of knowledge for the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when common law developed into a recognisable form.
The term "judge-made law" was introduced by Jeremy Bentham as a criticism of the pretense of the legal profession. Common law is generally understood to mean law that is made by judges, rather than declaratory statutes. This is in contrast to civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law systems clearly define the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence.
Common law, or case law, is used in common law jurisdictions, where judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. The goal of common law is to establish consistent outcomes by applying the same standards of interpretation. However, elements of common law may differ between districts, as precedent may depend on the case-by-case traditions of individual jurisdictions.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Common law is derived from judicial decisions, not statutes or constitutions
Common law, also known as case law, is a body of law that is primarily developed through judicial decisions and precedent rather than statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, common law is based on the idea that courts should follow precedents established by previous judicial decisions when deciding new cases. This is in contrast to civil law, which originated in mainland Europe and is a comprehensive, codified set of legal statutes created by legislators.
The development of common law can be traced back to the early Middle Ages in England, specifically to the King's Court (Curia Regis) set up in Westminster, near London. At this time, common law did not consist of substantive rights but rather procedural remedies. Over time, these remedies have evolved into the modern system in which rights are primary. The early development of case law in the thirteenth century has also been attributed to Bracton's On the Laws and Customs of England, which led to the yearly compilations of court cases known as Year Books. These Year Books are a principal source of knowledge for the developing legal doctrines, concepts, and methods of the time.
Common law is often associated with the legal systems of former British colonies or protectorates, such as the United States. It is important to note that while common law may incorporate certain statutes, it is primarily based on judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply when deciding a new case. This can significantly influence the criteria that a jury uses to interpret a case.
In summary, common law is derived from judicial decisions and precedent, making it distinct from civil law, which relies on a comprehensive code of statutes. Common law has evolved over centuries, shaping the legal systems of many countries and influencing how judges interpret and apply the law today.
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Common law is based on precedent—judicial rulings made in previous similar cases
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, common law is based on the idea that courts and judges should follow previous rulings when dealing with similar cases. This is in contrast to civil law, which centres around a comprehensive code of statutes that outline the procedures for handling claims and punishments for offences.
The common law system is less prescriptive than civil law, and it is primarily developed through judicial decisions rather than statutes. This means that judges play a crucial role in interpreting and applying the law, and their rulings can have a significant influence on future cases. While common law may incorporate certain statutes, it is not bound by them and is instead based on the precedent set by previous rulings.
The early development of common law can be traced back to the 13th century with Bracton's "On the Laws and Customs of England", which led to the yearly compilations of court cases known as Year Books. These Year Books are considered the law reports of medieval England and provide valuable insights into the developing legal doctrines, concepts, and methods of that time.
In the modern era, common law continues to be a prominent legal system in several countries, particularly those that were former British colonies or protectorates, such as the United States. The U.S. state of California, for example, has a legal system based on common law, which has been adapted to include certain aspects of civil law.
While common law promotes stability and consistency by relying on previous rulings, it has also been criticised for its potential to marginalise or disempower certain groups. Past decisions can shape future rulings until societal changes prompt a judicial body to overturn the precedent. This dynamic can make it challenging for marginalised groups to achieve favourable rulings until societal or legislative changes update the interpretation of common law.
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Common law is a body of unwritten laws
Common law, also known as case 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 other words, common law is primarily developed through judicial decisions rather than statutes.
The term "judge-made law" was introduced by Jeremy Bentham as a criticism of the pretense of the legal profession. This term is used to describe common law because it is generally understood to mean law that is made by judges, not the declaratory statutes of Blackstone's era. In modern usage, common law is independent of statutes.
The United States Supreme Court in Levy v. McCartee affirmed this interpretation of common law as "the unwritten law of the land, independent of statutory enactments". This case illustrates how common law is based on judicial decisions rather than written statutes.
Common law originated in England and has since spread to other countries, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. It is one of the two main legal systems used today, alongside civil law. Unlike common law, civil law is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the procedures for handling claims and the punishment for offenses, whereas common law emphasizes precedent while allowing some freedom for interpretation.
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Frequently asked questions
Common law, also known as case 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".
Common law relies on detailed records of similar situations and statutes as there is no official legal code that can be applied to a case at hand. The presiding judge determines which precedents to apply in each case.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is a clear system that defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Civil law is typically found in countries that were former French, Dutch, German, Spanish, or Portuguese colonies.
Yes, common law is considered a judge-made law. It is primarily developed through judicial decisions and has been administered by the courts of England since the Middle Ages. The term "judge-made law" was introduced by Jeremy Bentham as a criticism of the legal profession.
