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 derived from judicial decisions, rather than from statutes or constitutions. Common law promotes stability and consistency in legal systems as it is based on previous caselaw, and not on subjective viewpoints. It is flexible, adaptable, and efficient, as judges need only follow precedent when making decisions. Common law is one of the two main legal systems used today, the other being civil law, which relies on codes and statutes. Common law has its roots in England during the Middle Ages and is still used in several countries today, including the US, Canada, India, and Australia.
| Characteristics | Values |
|---|---|
| Definition | "The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts." |
| "The body of law derived from judicial decisions, rather than from statutes or constitutions." | |
| "The unwritten law of the land, independent of statutory enactments." | |
| "Case law" or "ratio decidendi" | |
| "A body of unwritten laws based on legal precedents established by the courts." | |
| "Stare decisis" | |
| "Judge-made law" | |
| "A reception statute" | |
| Origin | England during the Middle Ages |
| The United States common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. | |
| Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. | |
| Pros | Stability and consistency |
| Efficiency | |
| Adaptability to the unforeseen | |
| Flexibility | |
| Cons | Past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent, which can make it difficult for marginalized parties to pursue favorable rulings. |
| Common law may reduce social and income stability and widen income disparities. |
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What You'll Learn
Common law jurisdictions
Common law, also known as case law, is a body of law derived from judicial decisions, rather than from statutes or constitutions. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law is derived from the Latin phrase 'stare decisis', which means "to stand by things decided". This means that courts and judges need to follow previous decisions and rulings, or caselaw, when dealing with similar cases.
Common law systems are legal systems that rely on common law as precedent and are known as "common law jurisdictions". Common law jurisdictions promote stability and consistency because everyone involved knows that the outcome will be based on previous caselaw, not subjective personal viewpoints. Common law systems are flexible and adaptable to the unforeseen, as they can respond to changes in society and address situations not originally predicted by lawmakers.
Many former colonies, such as the United States, Canada, India, Australia, and Hong Kong, retain the common law system today. The United States federal courts relied on private publishers for law reports until after the Civil War. 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.
In common law jurisdictions, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts, locate relevant statutes and cases, and extract the principles, analogies, and statements by various courts. More recent decisions and decisions of higher courts carry more weight. Finally, one integrates all the lines drawn and reasons given and determines "what the law is", applying that law to the facts.
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Common law vs civil law
There are two main types of legal system in the world, with most countries adopting features from one or the other: Common Law and Civil Law. There are around 150 countries that have civil law systems, while there are about 80 common law countries.
Common Law
Common law, also known as the Anglo-Saxon tradition, is primarily contrasted with civil law. It emerged in England during the Middle Ages and was applied within British colonies across continents. Common law was originally developed through custom, before laws were written down. It is generally uncodified, meaning there is no comprehensive compilation of legal rules. Instead, it is largely based on precedent, created by judicial decisions, which means that past rulings are taken into consideration when cases are decided (case law). Common law systems make extensive use of statutes, but judicial cases are regarded as the most important source of law, giving judges an active role in developing rules.
Civil Law
Civil law, also known as the Latin or Roman tradition, is generally more prescriptive than common law. It is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law systems rely on legal codes that function as the primary source of law, with judges applying the law to the case at hand. Civil law is often more concise than common law, as it does not require all the terms governing the relationship between the parties to be set out in the contract itself.
Key Differences
In common law countries, judges can make laws in certain areas, whereas civil law countries have more detailed laws passed by legislatures that do not rely as much on the opinions of judges. Common law countries tend to have extensive freedom of contract, with few provisions implied into the contract by law. In civil law countries, there are more provisions implied into a contract, and the government may wish to include specific legislation to limit the scope of a restriction to allow a successful infrastructure project.
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Common law in modern times
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. It is derived from the ancient law of England, based on societal customs and enforced by the judgments and decrees of the courts. While the precise meaning of common law may have evolved since the time of William Blackstone, it is generally understood in modern usage to refer to law made by judges, rather than declaratory statutes.
Common law is one of the two main legal systems used today, the other being civil law. Common law systems rely on case law and legal precedent to guide their decisions, while civil law systems primarily rely on codes and statutes. Common law is practised in several countries around the world, including the US, Canada, India, Australia, Hong Kong, New Zealand, and the United Kingdom.
Common law promotes stability and consistency in the legal system because everyone involved knows that the outcome will be based on previous case law, rather than subjective viewpoints. It also allows for adaptability and flexibility, as courts can address situations not originally predicted or accounted for by lawmakers. Common law can also be more efficient, as judges only need to follow precedent when making decisions, saving time and money.
However, common law has been criticised for its potential to perpetuate unfair marginalisation or disempowerment of certain groups. Past decisions can continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent, which can make it difficult for marginalised parties to achieve favourable rulings.
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Common law and its origins
Common law, also known as case law, is a body of unwritten laws based on societal customs and legal precedents established by the courts. It is deeply rooted in the Latin term stare decisis, which means "to stand by things decided". In other words, common law relies on the principle that judges in courts must follow previous rulings, decisions, and interpretations of the law when dealing with similar cases.
The common law system as we know it today originated in England during the Middle Ages, in the centuries following the Norman Conquest in 1066. Prior to the Norman Conquest, England's legal business was largely governed by local folk courts, urban boroughs, and merchant fairs, which held their own courts. The Norman Conquest did not immediately replace Anglo-Saxon law, but a period of colonial rule by the mainly Norman conquerors produced change. The English common law established a unified legal system, gradually supplanting the local folk courts and manorial courts.
England spread its common law system across the British Isles, first to Wales, then to Ireland, and eventually to its overseas colonies, including the United States, Canada, India, Australia, New Zealand, and Hong Kong. Today, many countries continue to rely heavily on common law when resolving legal disputes.
The first attempt at a comprehensive compilation of centuries of common law was made by Lord Chief Justice Edward Coke in the 17th century. In his treatise, Institutes of the Lawes of England, Coke described "the grounds of our common laws" as being "beyond the memory or register of any beginning". Common law was widely considered to derive its authority from ancient Anglo-Saxon customs until the late 19th century, when it was recognised that this view did not accurately reflect the origin and growth of the law.
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Common law in the US
Common law, also known as case law, is a body of law derived from judicial decisions, rather than from statutes or the constitution. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. Common law is not very common in the US, but several states have statutes or allow for common-law marriage if certain requirements are met. While common law marriage is recognized in many states, some states, such as Alabama, have abolished it.
In the US, common law is used in conjunction with statutory law. Statutes may codify existing common law, create new causes of action, or overrule the common law. Common law still has practical applications in some areas of law, such as contract law and the law of torts.
Common law promotes stability and consistency in the US legal system because everyone involved knows that the outcome will be based on previous caselaw rather than subjective viewpoints. It also allows for adaptability and flexibility as it can address situations not predicted or accounted for by lawmakers.
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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.
Common 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.
Common law systems rely on caselaw and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Civil law is a comprehensive, codified set of legal statutes created by legislators.
Common law promotes stability and consistency as everyone involved knows that the ultimate outcome will be based on previous caselaw. It is also flexible and adaptable to unforeseen situations.
Common law is used in several countries around the world, including the US, Canada, India, Australia, Hong Kong, New Zealand, and the United Kingdom.
