Anaya Nolan
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, which means to stand by things decided. Common law is largely based on precedent and judicial rulings made in previous similar cases. It is primarily developed through judicial decisions rather than statutes. However, common law may incorporate certain statutes and can be reinterpreted by judges. Common law is practised in several countries, including the US, Canada, India, and Australia.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of law based on legal precedents established by the courts. |
| Basis | Common law is based on precedent and judicial rulings made in previous similar cases. |
| Jurisdiction | Common law is found in many countries, including the US, Canada, India, the UK, Australia, and many former British colonies. |
| Flexibility | Common law is flexible and can respond to changes in society without requiring lawmakers to pass new statutes or codes. |
| Efficiency | Common law can lead to shorter court proceedings, saving time and money. |
| Adaptability | Common law can address situations not originally predicted by lawmakers. |
| Consistency | Common law promotes stability and consistency in the legal system by applying the same standards of interpretation. |
| Codification | Common law is uncodified and is not written in statutes or books. |
| Sources | Common law draws from institutionalized opinions and interpretations of judicial authorities and public juries. |
| Influence | Common law influences the decision-making process in unusual cases where existing statutes do not provide clear guidance. |
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What You'll Learn
Common law is a body of unwritten laws
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, which means "to stand by things decided". In other words, common law is largely based on precedent—judicial rulings made in previous similar cases.
Common law originated in England during the Middle Ages and was spread to Wales, Ireland, and overseas colonies by the British Empire. Many former colonies, including the United States, Canada, India, and Australia, continue to rely heavily on common law when resolving legal disputes. In the US, every state except Louisiana has a common law legal system.
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 the principles, analogies, and statements by various 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 is flexible and adaptable to unforeseen situations, as it is not bound by written statutes. It allows for the interpretation of the law to change over time as societal norms evolve. However, this flexibility can also lead to inconsistencies in the application of the law, as the decisions of past judges may influence future rulings, potentially perpetuating biases and marginalization of certain groups.
While common law is a body of unwritten laws, it can incorporate certain statutes and may sometimes inspire the creation of new legislation. The decisions made in common law courts can also establish new precedents, influencing future rulings.
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Common law is based on precedent
Common law, also known as case law or judge-made law, is a body of law based on legal precedents established by the courts. It is primarily developed through judicial decisions rather than statutes. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is deeply rooted in stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.
Common law originated in England during the Middle Ages, in the practices of the courts of the English kings in the centuries following the Norman Conquest. It was spread throughout the British Isles and the world by the British Empire, and many former colonies retain the common law system today. 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. Common law is also practiced in Australia, Canada, India, New Zealand, Hong Kong, and the United Kingdom.
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 the principles, analogies, and statements by various 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.
While common law is based on precedent, it may also incorporate certain statutes. In a case of first impression with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent. Common law is adaptable to unforeseen situations and flexible, as it can respond to changes in society without requiring lawmakers to pass changes in statutes and codes.
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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 largely based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case. Common law is deeply rooted in stare decisis, which means "to stand by things decided" in Latin. Stare decisis is a precedent or a history of judicial decisions that form the basis of evaluation for future cases. It is a doctrine that courts will adhere to precedent in making their decisions.
Stare decisis assures that the law won't change randomly and allows society to assume that fundamental beliefs are based on the law rather than on people's preferences. It fosters predictable, unbiased, and consistent development and application of legal principles. It also increases reliance on judicial decisions and adds to the actual and perceived integrity of the judicial process.
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, one must locate any relevant statutes and cases. Then, one must extract the principles, analogies, and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. More recent decisions and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts. Finally, one integrates all the lines drawn and reasons given and determines "what the law is". Then, one applies that law to the facts.
Stare decisis can be horizontal or vertical. Horizontal stare decisis refers to a court adhering to its own precedent. For example, if the Seventh Circuit Court of Appeals adheres to the ruling of a previous Seventh Circuit Court of Appeals case, that would be horizontal stare decisis. Vertical stare decisis holds that the decisions of higher courts take precedence over the decisions of lower courts. For example, if the Seventh Circuit Court of Appeals adhered to a previous ruling from the U.S. Supreme Court, that would be vertical stare decisis.
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Common law is flexible
Common law is a body of law 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 is flexible because it can respond to changes in society and adapt to new developments and situations.
The flexibility of common law also lies in its ability to address unforeseen cases, situations, and facts that were not anticipated by legislators. Parliament cannot predict and legislate for every possible scenario that may arise. Common law fills this gap by treating each case individually and creating outcomes that are fair for everyone involved.
In addition, common law is flexible because it allows for the distinguishing of cases and the setting aside of outdated precedents. Lower courts can modify or deviate from precedents if they are outdated or if the current case differs significantly from the precedent case. This flexibility enables common law to evolve and adapt to changing circumstances and societal needs.
Furthermore, common law provides stability and consistency in the legal system. It promotes trust and predictability as it is based on stare decisis, following past decisions and rulings. This consistency in legal reasoning ensures that similar cases are resolved in a similar manner, providing a framework for future decisions.
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Common law is not as rigid as statutory law
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, which means "to stand by things decided". Common law is primarily developed through judicial decisions rather than statutes. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is not rigid, as it can be reinterpreted and revised by judges without legislative intervention. It evolves gradually over time, reducing disruptive effects.
Statutory law, on the other hand, is applied as written and tends to be more rigid. It is created by legislators and can be amended or repealed by lawmakers. Civil law systems, which rely primarily on statutory law, have clear rules for how judges need to rule in specific disputes. In contrast, common law systems are more flexible as they can respond to changes in society. They can address situations not originally predicted by lawmakers and are not bound to follow precedent in the same way.
The flexibility of common law can be seen in its ability to adapt to new trends and changes in political, legal, and social philosophy. For example, in the United States, common law has been used to prosecute a new intrusive activity called "upskirting", even though there was no specific statute in place to address this modern issue. Additionally, in some cases, common law has furnished the basis for new legislation to be written, such as in the UK's common-law offence of "outraging public decency".
While common law is more malleable than statutory law, it is important to note that statutes can supersede common law. They may codify existing common law, create new causes of action, or legislatively overrule the common law. In practice, common law systems are considerably more complicated than a simplified definition may suggest. 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.
In summary, common law is not as rigid as statutory law because it allows for more flexibility and adaptability. It can be reinterpreted and revised by judges to address new trends and situations, whereas statutory law requires legislative intervention to be amended or repealed. Common law draws from judicial precedents and opinions, while statutory law relies on written codes and statutes created by legislators.
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Frequently asked questions
Common law is a body of law based on legal precedents established by the courts. It is also known as case law, judge-made law, or judicial precedent.
Common law is interpretive and evolves through court decisions, whereas statutes are written and codified. Common law is based on precedent and relies on past cases to interpret the law, while statutes are applied as written and are more rigid.
Yes, common law and statutes can coexist. In some jurisdictions, common law rules from courts are subsequently codified into statutes by legislatures. Additionally, while common law is based on precedent, judges may also refer to statutes when determining which precedents apply to a particular case.
Common law forms the basis of evaluation for future cases and influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. Common law promotes stability and consistency in the legal system and allows for adaptability to unforeseen situations.
