Cecily Zamora
Common 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. This means that courts follow precedents established by previous decisions. Common law originated in England and is now practiced in several countries, including the United States, Australia, Canada, and India. It is often contrasted with civil law, which relies on written codes and statutes. Common law provides stability and consistency by ensuring that similar cases are decided based on previous rulings, and it allows for adaptability to new situations not contemplated by the legislature.
| Characteristics | Values |
|---|---|
| Nature | A body of unwritten laws based on legal precedents established by the courts |
| Basis | Draws from institutionalized opinions and interpretations from judicial authorities and public juries |
| Purpose | Establishes consistent outcomes by applying the same standards of interpretation |
| Type of Law | Customary law |
| Origin | The King's Court (Curia Regis) in medieval England |
| Current Usage | Practiced in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States |
| Court Decisions | Binding in common law systems, but not in civil law systems |
| Pros | Stability and consistency |
| Cons | Past decisions can lead to unfair marginalization or disempowerment of certain groups |
| Notable Cases | Marbury v. Madison, Espinoza v. Montana Department of Revenue, Counterman v. Colorado |
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What You'll Learn
Common law is a body of unwritten laws
Common law originated in England and has been administered by its common-law courts since the Middle Ages. It was first established in the King's Court (Curia Regis) in Westminster, London, after the Norman Conquest in 1066. Over time, it spread to Wales, Ireland, and the British colonies, including the American colonies during the 17th and 18th centuries. Today, common law is practiced in the United States, the United Kingdom, Canada, Australia, New Zealand, India, and Hong Kong.
In a common-law system, judges play a crucial role in shaping the law. They interpret laws, establish precedents, and, in some cases, create new laws. For example, in a "case of first impression" with no clear legislative guidance, judges have the power to resolve the issue and set a new precedent. This process of judicial lawmaking has been criticised by some, such as Jeremy Bentham, who argued for narrow judicial decisions and the codification of laws.
Common law is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law systems, prevalent in mainland Europe and derived from the Code Civil or Napoleonic Code, provide clear rules and procedures for judges to follow. In contrast, common law systems emphasise precedent while allowing some freedom for interpretation. This flexibility enables the law to adapt to new situations not contemplated by the legislature.
The value of a common-law system lies in its ability to promote stability and consistency. By relying on past precedents, the law is based on established principles rather than subjective viewpoints. However, it is important to recognise that past decisions can shape future rulings, potentially leading to the marginalisation or disempowerment of certain groups. Therefore, societal changes may prompt a judicial body to overturn a precedent and create new case law.
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Common law is deeply rooted in stare decisis
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that originated in England and is now used in many countries, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
At its core, common law is deeply rooted in the principle of stare decisis, which means "to stand by things decided". Stare decisis dictates that courts must follow past decisions and rulings, also known as case law or precedent, when dealing with similar cases in the future. This means that when a court makes a decision based on a specific set of facts, that decision becomes binding for future cases with the same or similar issues. For example, in the United States, the Supreme Court is a common-law court that often adheres to stare decisis.
The principle of stare decisis is essential to the stability and consistency of common law systems. It ensures that the law is applied fairly and uniformly, as everyone involved knows that the outcome of a case will be based on previous case law rather than subjective viewpoints. This is in contrast to civil law systems, which are based on legal codes and statutes. In civil law, judges' decisions are not binding in future cases, even if the facts are similar, and there is no doctrine of stare decisis in the French civil law tradition.
The common law system, with its reliance on stare decisis, has played a significant role in shaping constitutional law and both civil and criminal cases in the United States. For example, the landmark case of Marbury v. Madison in 1803 established the federal court's power to declare laws void and has had a lasting impact on the theory and practice of the US government. Other cases such as Espinoza v. Montana Department of Revenue and Counterman v. Colorado have also illustrated the importance of common law and its interaction with the Bill of Rights in influencing judicial outcomes on critical issues like education, religious freedom, and free speech.
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Common law vs civil law
Common law and civil law are the two main legal systems used throughout the world today. 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 during the Middle Ages and was spread to North America, Australia, India, and other places through colonisation and the British Empire. Common law is deeply rooted in the principle of stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. Common law is less prescriptive than civil law, and it allows for freedom of interpretation.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. Civil law systems rely primarily on codes and statutes, with clear rules for how judges need to rule for specific disputes. Civil law originated in mainland Europe and was spread through the colonies of European powers such as Spain and Portugal. It is generally more prescriptive than common law and places more importance on having all the terms of a contract explicitly stated in the contract itself.
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. 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. However, past decisions in common law systems can lead to the marginalisation or disempowerment of certain groups, and these outdated or biased decisions continue to shape future rulings until they are overturned.
While common law is deeply rooted in stare decisis, there is no doctrine of stare decisis in the French civil law tradition. This means that court decisions in civil law are not binding in other cases, even if the facts are similar, and civil law codes must be constantly changed. In contrast, in common law, decisions made by higher courts are typically binding on lower courts in the same jurisdiction.
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Common law marriages
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", where courts follow precedents established by previous decisions. Common law is practised in the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand.
The requirements for common-law marriages vary, but they generally include cohabitation for a period of time, the legal right or "capacity" to marry, and the intention to be married. Both partners must hold themselves out to friends, family, and the public as being married, and behave as a married couple. The length of time a couple lives together is considered on a case-by-case basis, but longer cohabitation generally strengthens the case for a common-law marriage.
The history of common-law marriages can be traced back to ancient Greece and Rome, where marriages were private agreements between individuals and estates. In medieval Europe, marriage came under the jurisdiction of canon law, which recognised marriages even in the absence of any witnesses. The Catholic Church later forbade clandestine marriages at the Fourth Lateran Council in 1215, requiring all marriages to be announced in a church by a priest. England abolished common-law marriages in 1753 with the Marriage Act, requiring marriages to be performed by a priest of the Church of England. However, this did not apply to the American colonies, and common-law marriages survived in colonial America and still exist in some states today.
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Common law in the US
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, common law is established through court decisions in legal cases.
In the US, common law plays a significant role, particularly in the Supreme Court, which interprets laws and constitutional provisions while adhering to previous rulings. The Supreme Court is a common-law court that generally follows stare decisis. The US common-law system evolved from British tradition during the 17th and 18th centuries, and by 1776, colonial courts routinely used common law. After the American Revolution, decisions made in US courts further contributed to the body of common law. Today, the US operates under a dual system of both common and civil law. Every US state except Louisiana has a common law legal system.
Common law is particularly relevant in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. In such cases, judges are empowered to resolve the issue and establish new precedents. This was exemplified in the landmark case of *Marbury v. Madison*, where Chief Justice John Marshall's decision established the federal court's power to declare laws void. This decision, made in accordance with the common law obligation to apply all relevant laws, has had a lasting impact on the theory and practice of the US government.
Common law also influences the concept of common-law marriage, which grants similar rights to couples who are not officially married if certain conditions are met. While common law marriage is not common in the US, several states have statutes allowing for it, although some states, such as Alabama, have recently abolished these statutes.
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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.
Civil law is a comprehensive, codified set of legal statutes created by legislators. Civil law systems have clear rules for how judges need to rule for specific disputes. Common law, on the other hand, relies on caselaw and legal precedent to guide their decisions.
Stare decisis is a Latin phrase that means "to stand by things decided". It is a principle in common law that mandates that courts follow established precedents in making rulings.
Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. It promotes stability and consistency in the legal system.
