Cameron Miranda
The legal materials used for research are divided into two categories: primary sources and secondary sources. Primary sources are considered the actual law, including constitutions, court cases, statutes, and administrative rules and regulations. Common law, a body of law based on court decisions, has been the primary source of law for several hundred years. It is a system that relies on caselaw and legal precedent to guide decisions, and is currently used in several countries, including the US, Canada, India, and Australia.
| Characteristics | Values |
|---|---|
| Definition | Common law is a "body of law" based on court decisions rather than codes or statutes. |
| History | Common law systems can trace their roots back many centuries. The system started in England during the Middle Ages, after the Magna Carta in 1215. |
| Current usage | Several countries around the world, including the U.S., Canada, India, and Australia, continue to rely heavily on common law when resolving legal disputes. |
| Comparison with civil law | Common law systems rely on caselaw and legal precedent to guide their decisions, while civil law systems rely primarily on codes and statutes. |
| Benefits | Common law promotes stability and consistency, as outcomes are based on previous caselaw rather than subjective viewpoints. It also promotes efficiency, as judges only need to follow precedent. |
| Sources | Common law sources include constitutions, court cases, statutes, and administrative rules and regulations. |
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What You'll Learn
Common law vs civil law
There are two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems: Common Law and Civil Law. The primary contrast between the two systems is the role of written decisions and precedent as a source of law.
Common Law
Common law, also known as the Anglo-Saxon tradition, can be traced back to England during the Middle Ages. It was developed through custom, before laws were written down, and applied within British colonies across continents. Common law systems rely on caselaw and legal precedent to guide their decisions. Judicial cases are regarded as the most important source of law, which gives judges an active role in developing rules. Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints. Common law systems include the United States, Canada, India, Australia, and Ghana.
Civil Law
Civil law, also known as the Latin or Roman tradition, originated in mainland Europe and was applied in the colonies of European imperial powers such as Spain and Portugal. It is generally more prescriptive than common law, relying primarily on codes and statutes. Civil law systems centre around a comprehensive code of statutes that clearly outlines everything from the procedures for handling claims to the punishment for offences. Civil law judges tend to give less weight to judicial precedent and their decisions are not binding in other cases, even if the facts are similar. There are roughly 150 countries that have civil law systems.
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Common law and legal precedent
Common law is a primary source of legal authority in several countries, including the United States, Canada, India, and Australia. It is a "body of law" based on court decisions rather than codes or statutes. The common law system places great weight on legal precedent and stare decisis, a Latin phrase that means "to stand by things decided". This means that judges in common law systems need to follow previous rulings and court decisions when dealing with similar cases. For example, in the United States, the ALI Restatements are often cited by courts and lawyers for propositions of uncodified common law and are considered highly persuasive authority.
In contrast, civil law systems, which originated in mainland Europe, rely primarily on codes and statutes. In these systems, court decisions are not binding in other cases, even if the facts are similar. For instance, the Napoleonic Code expressly forbade French judges from pronouncing general principles of law. Some civil law jurisdictions do not empower the judiciary to invalidate legislative provisions.
Primary sources of law include constitutions, court cases, statutes, and administrative rules and regulations. These sources are mandatory or binding in a given jurisdiction. Common law, as a form of case law, falls under this category as it is created by courts through assembled, published appellate decisions of a jurisdiction. It is binding law on the lower courts in that jurisdiction.
Secondary sources, on the other hand, analyse, editorialise, summarise, or comment on the law. While these sources do not have the force of law, they can be persuasive and help legal researchers understand the area of law they are studying. They can also be cited for persuasive value. Examples of secondary sources include legal dictionaries, encyclopaedias, law reviews, and legal treatises.
In summary, common law is a primary source of legal authority that is based on court decisions and legal precedent. It is a key feature of the legal systems in several countries and provides stability, consistency, and efficiency in the legal process.
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Common law in the US
Common law is a system of jurisprudence that originated in England and was later adopted in the US. It is based on precedent instead of statutory laws. Common law is primarily based on judicial decisions and precedents, whereas civil law relies on codified statutes enacted by legislative bodies. In the US, common law is used in all states except Louisiana, which is based on the French civil code.
Common law has no statutory basis; judges establish it through written opinions that are binding on future decisions of lower courts in the same jurisdiction. Broad areas of the law, most notably relating to property, contracts, and torts, are traditionally part of common law. These areas of the law are mostly within the jurisdiction of the states, and thus state courts are the primary source of common law. Thus, 'common law' is used to fill in gaps in statutory law.
The role of federal common law is limited and applies primarily to interstate disputes where state laws conflict, federal government interests, and specific areas like securities fraud and antitrust regulations. When Congress enacts legislation covering a legal area, federal common law is overridden. Common law relies on stare decisis, meaning courts follow previously established rulings when deciding cases.
In the US, the Restatements of various subject matter areas, edited by the American Law Institute, collect the common law for the area. The ALI Restatements are often cited by American courts and lawyers for propositions of uncodified common law and are considered highly persuasive authority, just below binding precedential decisions.
The US Constitution is the supreme law of the land and the source of executive, legislative, and judicial government powers. It is the most fundamental source of law for systems that enact constitutions. Federal statutes, state statutes, judicial opinions, and administrative laws must all comply with the Constitution's rules. Statutes are considered highly valuable primary authority because they must pass through a legislature to become law.
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Common law in the UK
Common law is a legal system that is based on custom and precedent. It originated with the legal reforms of King Henry II in the 12th century and was called "common" because it applied equally across the whole country. The doctrine of binding precedent, also known as stare decisis, is a key principle of common law, whereby courts follow and apply the principles declared in previous cases decided by more senior courts. Common law includes both substantive rules, such as the offence of murder, and procedural ones, such as court procedure rules derived from the inherent jurisdiction of the court.
In the United Kingdom, common law is a primary source of legal authority, particularly in England and Wales, which comprise the English legal system. It is characterised by the importance of case law in shaping legal principles and the role of judges in interpreting laws. Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions. This system allows for the evolution of the law while respecting past rulings and promoting consistency and predictability.
However, it is important to note that common law is not the only source of legal authority in the UK. The UK has a dualist relationship with international law, which means that international treaties must be formally ratified by Parliament and incorporated into statute before becoming binding. Additionally, legislative changes can influence common law, especially when statutes clarify or alter existing legal principles. For example, the original penalties for murder in common law were replaced by statutes such as the Homicide Act 1957.
The balance between common law and statutory law is crucial in the UK legal system. While statutes provide clear guidelines, common law offers flexibility and adaptability to address unique legal situations that statutes might not effectively cover. This balance ensures that the law can evolve with changing societal values and needs.
In conclusion, common law is a primary source of legal authority in the UK, particularly in England and Wales, shaping legal principles and allowing for the interpretation and evolution of the law. However, it exists in conjunction with other sources of legal authority, such as statutory law and international treaties, contributing to a complex and dynamic legal system.
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Common law in other countries
Common law is one of the two main legal systems used in the world today, the other being civil law. Common law systems rely on caselaw and legal precedent to guide their decisions, while civil law systems rely primarily on codes and statutes. Common law is often contrasted with civil law, which originated in mainland Europe and centres around a comprehensive code of statutes that outline everything from procedures for handling claims to the punishment for offences.
Common law was developed in England during the Middle Ages and is still practised today in several countries that were formerly English colonies, including the United States, Canada, Australia, India, and New Zealand. Many other countries also use common law, including Ghana, which inherited the system from the British during colonisation and has since enshrined it in its 1992 Constitution. The laws of Ghana are mostly a modified version of imported law that is continuously adapting to the country's changing socio-economic and political realities.
Roman Dutch common law is practised in South Africa and Sri Lanka. It relies on legal principles set out in Roman law sources such as Justinian's Institutes and Digest, as well as the writings of 17th-century Dutch jurists such as Grotius and Voet. In practice, most decisions are based on recent precedent. Scots law combines elements of uncodified civil law dating back to the Corpus Juris Civilis with its own common law, which long predates the Treaty of Union with England in 1707.
In the United States, common law is considered highly persuasive authority, just below binding precedential decisions. The ALI Restatements, or the American Law Institute's Restatements of various subject matter areas, are often cited by American courts and lawyers for propositions of uncodified common law. Several other countries have also adapted the common law system into a mixed system; for example, Nigeria operates largely on a common law system in the southern states and at the federal level, but also incorporates religious law in the northern states.
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Frequently asked questions
Common law is a "body of law" based on court decisions rather than codes or statutes. It relies on caselaw and legal precedent to guide decisions.
Some examples of common law include the US, which originally based its common law rules on English common law, Canada, India, Australia, and Ghana.
Common law systems place great weight on precedent and caselaw, while civil law systems rely primarily on codes and statutes. Civil law court decisions are not binding in other cases, even with similar facts.
Sources of common law include constitutions, court cases, statutes, and administrative rules and regulations.
Common law promotes stability and consistency, as outcomes are based on previous caselaw rather than subjective viewpoints. It also allows for efficiency, as judges only need to follow precedent when making decisions.
