Gavin Howe
Common law, also known as judge-made law, is a primary source of law. It is deeply rooted in stare decisis, meaning to stand by things decided. Common law is primarily developed through judicial decisions rather than statutes, with judges empowered to resolve issues and establish new precedents. It has developed incrementally and pragmatically over the centuries, with the basic principles of civil wrongs, contracts, land law, agency, and commercial law evolving as common-law principles laid down by judges. The primary source of common law is the written judgments of higher courts, which are published in law reports and cited with reference to the year, series of volume, and page or case number. While common law is a primary source of law, it can be overridden by constitutional law, as seen in countries with written constitutions such as Ireland and the United States.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of law developed through judicial decisions rather than statutes. |
| History | Common law was initially developed in England after the Norman Conquest. |
| Primary Sources | The primary sources of common law are written judgments of higher courts, such as the High Court and the Supreme Court. |
| Secondary Sources | Secondary sources include textbooks, law reports, legal encyclopedias, and journals. |
| Precedent | Common law is based on stare decisis, where courts follow precedents established by previous decisions. |
| Flexibility | Common law allows judges some discretion in interpreting and applying the law to the facts of a case. |
| Relationship with Statute Law | Common law and statute law (legislation) are the two principal sources of law in Ireland. While common law is judge-made law, statute law is created by the Oireachtas (legislature). |
| Evolution | Common law has evolved incrementally over time, adapting to changing circumstances and societal needs. |
| Influence | Common law principles form the basis of many important areas of law, including contract law, property law, and tort law. |
| Variation | Common law varies between jurisdictions, with differences between English, Irish, and US common law. |
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What You'll Learn
Common law is judge-made law
Common law is a primary source of law, with its roots in the practices of the courts of English kings following the Norman Conquest. It is also known as judge-made law, judicial precedent, or case law. Common law is deeply rooted in stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous decisions.
The primary source of common law is the written judgements of higher courts, such as the High Court and the Supreme Court. Common law is developed incrementally and pragmatically, existing as principles of law that have been developed by courts over the centuries. It is based on precedent, or judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
In the case of a first impression with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent. Judges shape the law by interpreting statutes and filling gaps where legislation is silent or ambiguous. Judicial lawmaking operates under constraints such as precedent and statutory interpretation. Common law evolves incrementally through case decisions, with courts balancing consistency and adaptation to social needs.
The term "judge-made law" was introduced by Jeremy Bentham as a criticism of the pretense of the legal profession. In modern usage, it is generally understood to mean law that is made by judges, independent of statutes.
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Common law is deeply rooted in stare decisis
Common law is a primary source of law, with its roots traced back to England after the Norman Conquest. It is a system of law that has been developed by judges in courts over the centuries. The basic principles of civil wrongs, contracts, land law, agency, and commercial law are examples of areas where common law has laid down the foundational principles.
In common law jurisdictions, judges are required to interpret statutes and constitutions, as well as develop common-law doctrines. This dual role of interpretation and law creation calls for a nuanced approach to stare decisis. For example, in the United States, state supreme courts have the power to interpret state constitutions and statutes, as well as develop common-law doctrines. When interpreting statutes and constitutions, a text-based approach to stare decisis is often employed, focusing on the specific wording and context of the law. On the other hand, when resolving common-law disputes, state supreme courts should adhere to traditional stare decisis formulations due to the doctrine's deep roots and significance in common law.
The application of stare decisis in common law ensures consistency and predictability in the legal system. Judges rely on past decisions to guide their rulings, creating a body of law that evolves incrementally. This process allows for the development of legal principles that are adaptable to changing circumstances while maintaining stability and continuity.
In conclusion, common law is indeed a primary source of law, and its development is intimately tied to the doctrine of stare decisis. The application of stare decisis in common law jurisdictions ensures that judges respect precedent while also allowing for the evolution of legal principles to meet the needs of a dynamic society.
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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 vs civil law
There are two main types of legal systems in the world: Common Law and Civil Law. About 150 countries have civil law systems, while there are about 80 common law countries. Common law, also known as the Anglo-Saxon tradition, is the primary legal system in countries that were formerly British colonies or protectorates, including the United States. On the other hand, civil law, or the Latin/Roman tradition, is prevalent in continental European countries and the colonies of European powers like Spain and Portugal.
The main difference between common and civil law lies in their sources. Common law systems rely extensively on statutes, but judicial cases are considered the most important source of law, giving judges an active role in developing rules. Common law evolved through custom before laws were written down and is generally uncodified, relying heavily on precedent. Precedents are past rulings that are considered when deciding new cases. In contrast, civil law systems use codes to cover all possible scenarios, and judges have a more limited role of applying these codes to specific cases. Civil law is generally more prescriptive, implying various provisions into contracts, while common law is more flexible, requiring all terms to be explicitly stated in the contract.
In common law, judicial decisions are binding and can only be overturned by the same court or through legislation. This system values extensive freedom of contract, allowing everything that is not expressly prohibited. Common law rules are more rigid and prescriptive than those of equity, which allows more discretion and flexibility in decision-making. Over time, equity evolved into a distinct body of law with its own principles, separate from common law.
In civil law, a separate administrative law often governs PPP arrangements, and contracts are typically enforced by administrative courts unless arbitration is specified. Civil law is generally more concise, as it does not require all terms to be explicitly stated, relying on the operation of law to remedy ambiguities.
While common law originated in England during the Middle Ages, it has evolved and diversified over time, influenced by local contexts and constitutional frameworks. For example, Irish common law has been significantly shaped by its written Constitution and strong human rights principles, leading to differences from English common law.
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Common law vs statute law
Common law and statute law are two primary sources of law in Ireland. Common law, also known as case law, is a judge-made law that has developed incrementally over the centuries. It is based on past judicial opinions and precedents, where judges use decisions made in previous similar cases to inform their rulings. Common law covers areas such as contract law, restitution, the law of civil wrongs, and personal property. It is flexible and allows for interpretation, but it is not as rigidly applied as statute law.
Statute law, on the other hand, is based on written laws created by legislative bodies. It is also known as civil law and includes laws passed at the local, state, or federal level. Examples include traffic laws and drug laws. Statute law is codified, which means it is compiled and written down, and it is generally stricter in its application than common law. Statute law always overrides common law, and if a statute is found to be unconstitutional, it can be overturned or changed.
The Irish Constitution, introduced in 1937, is of overriding legal effect, and any laws—common or statute—that are inconsistent with it are void. The Constitution has resulted in some differences between Irish and English common law, particularly in the area of constitutional law, which does not exist in the same way in England and Wales. The Irish courts have looked to US constitutional law and the European Convention on Human Rights to inform their interpretation of human rights provisions.
Both common law and statute law have their own distinct sources and applications, and they often interact and overlap. While statute law takes precedence, common law fills in the gaps where specific statutes do not exist, providing a flexible and adaptable framework for the legal system.
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Common law in Ireland vs England
Common law in England and Ireland has many similarities, but there are also some key differences.
History
The spread of English common law to Ireland is described as the "first adventure of the common law". In England, the creation of common law was largely the result of the assimilation of existing customary law. In Ireland, however, common law was imported from England, gradually supplanting Irish customary law. This process began with the Statutes of Kilkenny in 1366, which asserted the supremacy of English law and parliament over any Irish legislation. This was followed by Poyning's Law in 1494, which required the assent of the King's Privy Council for any legislation passed by an Irish parliament. Despite these measures, English law was confined to an area known as the Pale until the mid-16th century when Henry VIII extended it further through a scheme of 'surrender and re-grant' of land held by native nobles. The dominance of English law was consolidated by Cromwell's military campaign, which ended in 1653 and marked the end of the Brehon Laws, an ancient Celtic legal tradition.
Current Status
The law of the Republic of Ireland consists of constitutional, statutory, and common law. The highest law in the state is the Constitution of Ireland, which was introduced in 1937 and replaced the 1922 Constitution. The Republic has a common-law legal system with a written constitution based on the British parliamentary system, but with some key differences, including a popularly elected president and a separation of powers. The two principal sources of law in Ireland are common law and Statute law. Common law, or judge-made law, has developed incrementally over time and exists as principles developed by the courts. Statute law, on the other hand, is made by the Oireachtas (the Irish parliament) and its predecessor parliaments.
In England and Wales, common law is also a key source of law, with many important principles rooted in common law. However, there are some differences between English and Irish common law, particularly in the area of constitutional law, which has no parallel in England and Wales. The adoption of a written constitution in Ireland, with its strong human rights principles, has led to significant differences in some cases. Irish courts have also looked to US constitutional law and the European Convention on Human Rights to inform their decisions.
Similarities
Despite these differences, there are many similarities between the laws of Ireland and England, particularly in key areas such as contract law, civil wrongs, restitution, property law, and agency. This is due to the shared history of the two countries, having once shared a single parliament. Even in areas where there is no common legislation, Irish law may still be based broadly on UK legislation. The systems of national and local government regulation and judicial review in the Republic of Ireland also follow a similar pattern to those in England and Wales.
Northern Ireland
It is worth noting that Northern Ireland is a separate jurisdiction with significant law-making powers. While there are considerable similarities between the laws of the Republic of Ireland and Northern Ireland, there are also some differences. For example, Northern Ireland has recently reformed its land law, and it is likely that the Republic of Ireland will follow suit.
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Frequently asked questions
Common law is a body of law that is primarily developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which means that courts follow precedents established by previous decisions. Common law is also known as judicial precedent, judge-made law, or case law.
Common law operates as the primary source of law by placing great weight on precedent. This means that judicial rulings made in previous similar cases are followed and applied to new cases. The presiding judge determines which precedents to apply when deciding on a new case.
The primary sources of common law are the written judgments of higher courts, such as the High Court and the Supreme Court. These judgments are published in hardback volumes of law reports, which are cited using the year, a reference to the series of volumes, and the page or case number.
