Kara Sears
Common law is a body of unwritten laws based on legal precedents established by the courts. It originated in England in the early Middle Ages and has been the primary source of law for several hundred years. Common law is made by sitting judges who apply statutory law and established principles derived from earlier decisions. While common law is not created by Parliament, it can be amended or repealed by it.
| Characteristics | Values |
|---|---|
| Basis of common law | Legal precedents established by the courts |
| Common law vs civil law | Common law is unwritten, civil law is codified |
| Common law in practice | Judges apply both statutory law and established principles derived from earlier decisions |
| Common law and Parliament | Common law can be amended or repealed by Parliament |
| Common law and legislation | Common law may be superseded or replaced by legislation |
| Common law and the jury system | Juries reach verdicts through evaluating common local knowledge |
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What You'll Learn
Common law is a body of unwritten laws based on legal precedents
Common law is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Common law, on the other hand, relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a specific case. The judge presiding over a case determines which precedents apply to that particular case.
In the United Kingdom, common law has sometimes served as the basis for new legislation. For example, the ancient common-law offence of "outraging public decency" was used to prosecute a new intrusive activity called "upskirting". In 2019, the U.K. Parliament passed the Voyeurism (Offences) Act, which officially made upskirting a crime.
While common law is a significant source of law, it can be superseded or replaced by legislation created by Parliament. For example, the offence of theft was originally based on the common law offence of larceny, but it is now governed by the Theft Acts of 1968 and 1978. Similarly, the original penalties for murder were replaced by statutes such as the Homicide Act of 1957.
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Common law is made by sitting judges
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law, and it draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law originated in England in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London.
In England, judges have devised a number of rules to deal with precedent decisions. The early development of case law in the thirteenth 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 are the law reports of medieval England and are a principal source of knowledge of the developing legal doctrines, concepts, and methods from the 13th to the 16th centuries, when common law developed into a recognizable form.
Over time, Parliamentary legislation gradually overtook judicial law-making, and today, judges can innovate only in certain, narrowly defined areas. Common law rules may be superseded or replaced by legislation, which is said to "trump" or take precedence over common law. For example, the old common-law offence of larceny is now governed by the Theft Acts 1968 and 1978. In such circumstances, only Parliament can change the law. An Act of Parliament creates a new law or changes an existing law. An Act is a Bill that has been approved by both the House of Commons and the House of Lords and been given Royal Assent by the Monarch.
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Common law can be amended or repealed by Parliament
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that has been used in England since the Middle Ages, with origins in the legal reforms of King Henry II in the 12th century. Over time, common law has been the basis for new legislation, such as the Voyeurism (Offences) Act, which criminalised upskirting.
Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case. The judge presiding over a case determines which precedents apply to that particular case. The decisions of higher courts are binding on cases tried in lower courts, although lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different.
Parliamentary committees examine UK laws and recommend the removal of outdated legislation. An Act of Parliament creates a new law or changes an existing law. An Act is a Bill that has been approved by both the House of Commons and the House of Lords and has received Royal Assent from the Monarch. An Act of Parliament can also be repealed so that its provisions no longer apply.
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Common law may be superseded or replaced by legislation
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that has been administered by the courts of England since the Middle Ages. The term "common law" is often used in contrast to Roman-derived "civil law", with the two employing fundamentally different forms of reasoning. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is also known as case law, relying on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case.
In the United Kingdom, the Human Rights Act 1998, passed by Parliament, has influenced the regime of human rights represented by the European Convention on Human Rights (1950). In another instance, the U.K. Parliament passed the Voyeurism (Offences) Act in 2019, which officially criminalized the act of "upskirting", which was earlier prosecuted under the ancient common law offence of "outraging public decency".
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Common law guides court rulings when the outcome is undetermined
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law and is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law originated in England and has been exported to many parts of the world, including the United States, Canada, Australia, New Zealand, India, and Hong Kong.
In a common law system, there is no official legal code that can be applied to a specific case. Instead, judges rely on detailed records of similar situations and statutes to determine which precedents apply to a particular case. This promotes stability and consistency in the legal system, as everyone involved knows that the outcome will be based on previous case law rather than subjective viewpoints. Additionally, court proceedings can be shorter, saving time and money.
Common law is particularly valuable when the outcome of a case is undetermined based on written rules of law. In such cases, judges can refer to previous cases and established principles to guide their rulings. This adaptability allows common law to address situations that were not contemplated by lawmakers when creating statutes and rules. For example, in the United Kingdom, the common-law offence of "outraging public decency" was used as the basis for prosecuting "upskirting", a new intrusive activity that involved taking non-consensual photos or videos of private parts. This eventually led to the passing of the Voyeurism (Offences) Act in 2019, which officially criminalized upskirting.
However, the reliance on judicial precedent in common law systems can also lead to regional variability in the application of laws, as precedents may differ between jurisdictions. Additionally, while lower courts generally follow the precedents set by higher courts, they have the flexibility to modify or deviate from these precedents if they are outdated or if the current case differs significantly from previous cases.
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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 originated in England in the Middle Ages and has been the foundation and prime source of English law.
Common law is made by sitting judges who apply both statutory law and established principles. It can be amended or repealed by parliament, but there is a limit to the extent to which common law judges can reform an out-of-date law, especially if it is derived from a statute. In such cases, only parliament can change the law.
Common law may guide court rulings when the outcome is undetermined based on written rules of law. The judge presiding over a case determines which precedents apply to that particular case.
