Keith Mack
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, a Latin phrase that means to stand by things decided. Common law is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. Common law systems are used in several countries today, including Australia, Canada, the United Kingdom, and the United States. It is one of the two main legal systems used today, the other being civil law.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Basis | Common law is derived from judicial decisions, not statutes. |
| Flexibility | Common law is flexible as it can respond to changes in society. |
| Stability and Consistency | Common law promotes stability and consistency as the outcome is based on previous caselaw, not subjective viewpoints. |
| Jurisdiction | Common law systems are used in many countries, including Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. |
| Recognition | Common law is recognised in some U.S. states as a form of irregular marriage. |
| Dissolution | There is no such thing as a "common law divorce"; divorce must be done by statutory law in all jurisdictions. |
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What You'll Learn
Common law is a body of unwritten laws
The United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom are some of the countries that practice common law. It originated from medieval England and was spread to North America during the 17th and 18th centuries through British colonialism. Common law is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the procedures for handling claims and the punishments for offenses, aiming to create order and reduce bias.
While common law is generally uncodified, it may incorporate scattered statutes and legislative decisions. This means that there is no comprehensive compilation of legal rules, and the law can adapt to situations not contemplated at the time by the legislature. The value of a common-law system is its flexibility and ability to establish consistent outcomes by applying the same standards of interpretation. However, this system can also lead to the marginalization or disempowerment of certain groups, as past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
In a common law jurisdiction, determining "what the law is" in a given situation involves several stages of research and analysis. It includes ascertaining the facts, locating relevant statutes and cases, extracting principles and statements from various courts, and then integrating this information to guide the decision-making process. Common law influences decisions in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law.
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Common law is deeply rooted in stare decisis
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It is largely based on precedent—judicial rulings made in previous similar cases. Common law originated in England and was spread to various parts of the world, including North America, Australia, Canada, Hong Kong, India, New Zealand, and other former British colonies.
Stare decisis, a Latin term meaning "to stand by things decided", is a fundamental principle of common law. It refers to the doctrine that courts will adhere to precedent in their decision-making. In other words, when a court faces a legal argument, it will rule in alignment with previous rulings on the same or similar issues. This ensures consistency and predictability in the law, preventing arbitrary decision-making.
There are two types of stare decisis: horizontal and vertical. Horizontal stare decisis refers to a court adhering to its own precedent or the precedent of another court at the same appellate level. For example, if the Seventh Circuit Court of Appeals follows the ruling of a previous Seventh Circuit Court of Appeals case, it is engaging in horizontal stare decisis. Vertical stare decisis, on the other hand, occurs when a court applies precedent from a higher court. For instance, if the Seventh Circuit Court of Appeals follows a previous ruling from the U.S. Supreme Court, it is engaging in vertical stare decisis. Vertical stare decisis is deeply entrenched in the American legal system and gives higher courts, such as the Supreme Court, more authority over the decisions of lower courts.
While stare decisis is a crucial aspect of common law, it is not absolute. Courts may depart from precedent in certain situations, such as when prior decisions are deemed \"unworkable or badly reasoned\", particularly in constitutional cases. Additionally, as society evolves, interpretations of prior decisions may change, leading judges to overturn past precedents to avoid unjust outcomes.
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Common law vs civil law
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It is largely based on stare decisis, which means "to stand by things decided" in Latin. Common law originated in England during the Middle Ages and was spread across the British Isles, then to British colonies worldwide. Many former colonies, such as the United States, Canada, Australia, and India, retain the common law system today, with approximately one-third of the world's population living in common law jurisdictions.
Common law systems are generally less prescriptive than civil law systems. They are deeply rooted in stare decisis, where courts follow precedents established by previous judicial decisions. When resolving a case, judges determine which precedents to apply and may also be influenced by institutionalized opinions and interpretations from judicial authorities and public juries. Common law may incorporate certain statutes, but it is primarily based on these precedents and judicial rulings rather than a comprehensive compilation of legal rules.
In contrast, civil law is a comprehensive, codified set of legal statutes created by legislators. It is characterized by a clear set of written legal codes derived from fundamental normative principles, which judges apply to specific cases. Civil law systems are more prescriptive, aiming to create order and reduce bias by standardizing the application of laws. These systems define the cases that can be brought to court, the procedures for handling claims, and the punishments for offenses. While civil law is regularly updated, the goal of standardized codes is to ensure consistent outcomes by applying the same standards of interpretation.
The primary difference between common law and civil law lies in their main sources of authority. Common law systems give greater authority to judicial decisions, allowing judges an active role in developing rules and influencing criteria for interpreting cases. In contrast, civil law systems rely primarily on written codes, giving judges a more limited role of applying the law to specific cases. While civil law judges establish the facts of a case, common law judges have more discretion in determining the precedents that shape their decisions.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, is a legal framework that may allow couples to be considered married without having formally registered their union as either a civil or religious marriage. Common-law marriage is not common in the US, but a few states do have statutes or allow for common-law marriage if certain requirements are met. In states that allow common-law marriage, couples in a common-law marriage may have the same rights as a married couple who went through a formal marriage process.
The original concept of a "common-law" marriage is one considered valid by both partners but not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. The act of the couple representing themselves to others as being married and organizing their relationship as if they were married, means they are married. Generally, a married couple is considered common-law married when they live together for a period of time (cohabitation), and hold themselves out to friends, family, and the community as "married". There is no statutory requirement for the length of time a couple needs to live together, and the court considers the amount of time a couple lives together on a case-by-case basis.
In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may be legally defined as "unmarried spouses" and treated the same as married spouses for many purposes, such as taxes and financial claims. In Scotland, common-law marriage does not exist, although there was a type of irregular marriage called 'marriage by cohabitation with habit and repute' which could apply to couples in special circumstances until 2006.
In medieval Europe, marriage came under the jurisdiction of canon law, which recognized as a valid marriage one in which the parties stated that they took one another as wife and husband, even in the absence of any witnesses. The Catholic Church forbade clandestine marriage at the Fourth Lateran Council in 1215, which required all marriages to be announced in a church by a priest. England abolished clandestine or common-law marriages in the Marriage Act of 1753, requiring marriages to be performed by a priest of the Church of England. However, this did not apply to American colonies, and common-law marriage survived in colonial America and is still recognized in some states today.
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Common law in former British colonies
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. Common law originated in England and was spread to the British colonies in North America, South Africa, Asia, Australia, and Africa.
The British East India Company brought English law to its trading posts and factories in India. English common law was also brought to settlement colonies in North America, South Africa, and Australia, where it became the legal foundation of all British colonies. Many former colonies, such as India, Pakistan, Bangladesh, Barbados, Jamaica, Botswana, Nigeria, Kenya, India, Burma, and Singapore, retain the common law system today.
Common law systems are legal systems that give great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes. However, it may incorporate certain statutes and is largely based on precedent, with judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply when deciding a new case.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This includes ascertaining the facts, locating relevant statutes and cases, and extracting principles, analogies, and statements by various courts. Recent decisions and those of higher courts carry more weight in influencing future rulings.
The adoption of common law in the newly independent United States was controversial due to widespread distrust and hostility towards anything British. However, the Federalists believed that common law was the birthright of Independence, as the natural rights to "life, liberty, and the pursuit of happiness" were protected by common law.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law or judge-made law. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common law is practiced in several countries including Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. 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.
A common law marriage, also known as a non-ceremonial marriage, is a legal framework that allows couples to be considered married without having formally registered their union. Common law marriage is recognized in nine U.S. jurisdictions: Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, the District of Columbia, and Utah.
