Cameron Miranda
Common law is a legal system that is deeply rooted in stare decisis, a Latin term that translates to to stand by things decided. It is a body of unwritten laws based on legal precedents established by the courts, where judges are required to follow previous rulings when dealing with similar cases. Common law originated in England after the Norman Conquest in 1066 and was spread to colonies of the British Empire, including the United States, Canada, Australia, and India, among others. While common law is not as prevalent in the US as in the past, it continues to be practised in many states and influences the decision-making process in unusual cases where existing statutes do not apply.
| Characteristics | Values |
|---|---|
| Definition | A "body of law" based on court decisions rather than codes or statutes |
| Basis | Stare decisis, a Latin phrase meaning "to stand by things decided" |
| Practice | Judges follow previous decisions and rulings, or caselaw, when dealing with similar cases |
| Example | If a court makes a decision based on a specific set of facts, that decision is required when ruling on the same or closely related issues |
| Hierarchy | Decisions of higher courts are typically binding on lower courts in the same jurisdiction |
| Jurisdiction | Decisions are binding only in a particular jurisdiction |
| Complexity | Interactions between common law, constitutional law, statutory law, and regulatory law give rise to considerable complexity |
| Pros and Cons | The law can be adapted to situations not contemplated by the legislature |
| Geographic Relevance | Common law is practiced in Australia, Canada, Ghana, Hong Kong, India, New Zealand, the United Kingdom, and the United States |
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What You'll Learn
Common law origins
The common law is a “body of law" based on court decisions rather than codes or statutes. It is deeply rooted in stare decisis ("to stand by things decided"), which means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later.
The common law, so-called 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 12th century saw a shift across northwestern Europe from predominantly local, informal power arrangements typical of customary law to formal government organised along bureaucratic lines. In England, this shift occurred during the reign of Henry II (1154-89), when the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas) were established in Westminster, London. Henry II institutionalised common law by creating a unified system of law "common" to the country, ending local control and eliminating arbitrary remedies.
The common law was later spread by the British Empire to its colonies, including Ghana, which inherited English common law during colonisation. Many former colonies, such as Canada, Hong Kong, and all U.S. states except Louisiana, have retained or implemented reception statutes or adopted the common law by judicial opinion.
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Common law in the US
Common law is a body of law based on court decisions and precedents rather than statutes or codes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, common law dictates that judges' rulings must be followed in similar cases in the future, and higher courts' rulings are binding in lower courts in the same jurisdiction.
Common law is distinct from civil law, which is based on a comprehensive code of statutes that outline how judges need to rule in specific disputes. Civil law decisions are not binding in other cases, even if the facts are similar.
The common law system is used in several countries, including the United States, which based its common law rules on English common law. Every US state except Louisiana has a common law legal system. Louisiana's legal system is based on the French civil code that was in place before the US was established.
While the US has many codified statutes that courts must consider, the principle of stare decisis remains constant in its common law legal systems. This means that even when interpreting a statute, a court's ruling will be based on previous interpretations of that statute, and these will be binding.
In the US, common law is found primarily at the state level, with legislatures codifying common law rules from their state courts. However, there is also a limited body of federal common law, which consists of rules created and applied by federal courts in the absence of a controlling federal statute.
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Common law in other countries
Common law is a “body of law” based on court decisions rather than codes or statutes. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law is based on the principle that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later.
Several countries continue to rely on common law legal systems. Common law countries are increasingly adopting codes similar to civil law systems in areas such as bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law.
The United States, for example, has a common law system. Every U.S. state except Louisiana has a common law legal system. The states that were formerly colonized by other nations, such as Quebec, South Africa, and Sri Lanka, follow a civil law system. Ghana, another former British colony, retained the common law system after independence, and it has been enshrined in the 1992 Constitution of the country.
Australia, the Caribbean jurisdictions of Antigua and Barbuda, Barbados, the Bahamas, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, Trinidad and Tobago, and many other generally English-speaking countries or Commonwealth countries also use common law.
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Common law marriage
Common law is a legal system that is based on court decisions and precedents, rather than statutes or codes. It originated in England after the Norman Conquest in 1066, when King Henry II established a unified system of law common to the country. Common law is deeply rooted in the principle of stare decisis, which means that courts and judges need to follow earlier decisions and rulings, also known as case law, when dealing with similar cases. This means that common law is constantly evolving and adapting to new situations and contexts.
Now, moving on to the concept of common-law marriage. Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a type of marriage that does not involve a formal wedding ceremony, marriage license, or marriage certificate. Instead, it is based on the agreement between two people who are legally capable of being married and their intention to be married, followed by cohabitation and holding themselves out to the world as a married couple. In other words, it is a marriage that takes legal effect through the actions and intentions of the couple rather than through a statutorily defined process.
Common-law marriage is recognized in some jurisdictions, such as seven states and the District of Columbia in the United States, while other jurisdictions may respect the validity of such marriages lawfully entered into in other states or countries. The requirements for common-law marriage can vary, but generally include factors such as cohabitation for a period of time, both partners being of legal age and sound mind, and the intention to be considered married by both partners and the community.
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 domestic partnerships, that may not have the same legal recognition as a valid common-law marriage. The concept of common-law marriage has evolved over time, with England abolishing clandestine or common-law marriages in the Marriage Act of 1753, which required marriages to be performed by a priest of the Church of England. However, common-law marriage survived in colonial America and continues to be recognized in some parts of the United States today.
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Common law vs civil law
Common law and civil law are the 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 is a "body of law" based on court decisions rather than codes or statutes. It originated in England during the Middle Ages and was applied within British colonies across continents. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". This means that courts follow precedents established by previous decisions. When similar cases arise, courts align their reasoning with the precedent set in the previous decision. Common law is less prescriptive than civil law, and it is more malleable than statutory law.
Civil law, on the other hand, originated in mainland Europe and was applied in the colonies of European imperial powers such as Spain and Portugal. It centres around a comprehensive code of statutes that outline everything from the procedures for handling claims to the punishment for offences. Civil law systems are more prescriptive than common law systems, and they have clear rules for how judges need to rule for specific disputes. In civil law systems, judges have a more limited role of applying the law to the case at hand, whereas in common law systems, judicial cases are regarded as the most important source of law, giving judges an active role in developing rules.
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 locate any relevant statutes and cases, and then 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. Decisions of higher courts or legislatures carry more weight than those of lower courts. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others.
Common law systems are used in around 80 countries, including the United States (except Louisiana, which is a civil law state), and countries that were former British colonies or protectorates, such as Ghana. Civil law systems, on the other hand, are used in around 150 countries worldwide.
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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 deeply rooted in stare decisis, which means "to stand by things decided".
Common law originated in the practices of the courts of English kings following the Norman Conquest in 1066. Henry II became the first Plantagenet king in 1154 and institutionalised common law by creating a unified system of law "common" to the country.
Common law is used in several countries today, including the United States, Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and Ghana.
Common law is based on the principle of stare decisis, where courts follow precedents established by previous decisions. When a similar case arises, courts typically align their reasoning with the precedent set in that previous decision.
