Keith Mack
The common law system is a legal system that has been adopted by several countries, including those in the Commonwealth. The term common law is often used in contrast with civil law, with the fundamental processes and forms of reasoning in the two being quite different. Common law, which stands in contrast to the civil law system now widespread in continental Europe, is the primary legal system in the United States and most member states of the Commonwealth. The English common law, which originated in the early Middle Ages, has evolved over time, with legal approaches differing between common-law countries. The Commonwealth, on the other hand, is a term used to refer to a political community founded for the common good, and it carries no legal or political significance.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of customary law based on judicial decisions and reports of decided cases. |
| Commonwealth refers to a political community founded for the common good. | |
| Origin | Common law originated in England in the Middle Ages. |
| The term commonwealth is derived from the Latin term res publica. | |
| Influence | Common law has influenced the legal systems of many countries, including those in the Commonwealth. |
| The term commonwealth is used in some U.S. states, such as Kentucky, Virginia, and Vermont, due to their historical connection to British colonial possessions. | |
| Features | Common law allows judges to use their discretion in interpreting and applying the law, creating precedents. |
| Commonwealth, as a term, carries no legal or political significance but emphasizes the concept of a government based on the common consent of the people. | |
| Examples | Common law examples include tort law, contract law, and succession on intestacy. |
| Commonwealth countries include England, Canada, Australia, and other former British colonies. |
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What You'll Learn
Common law and Commonwealth countries
The common law of England was largely created in the period after the Norman Conquest of 1066. It is a body of customary law based on judicial decisions and embodied in reports of decided cases. Common law has been administered by the common-law courts of England since the Middle Ages. It has evolved and spread to the United States and most member states of the Commonwealth.
Common law countries are nations where the legal system is based on judicial decisions and precedents rather than solely on written laws or statutes. The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases, was created as a means of compensating someone for wrongful acts known as torts. The type of procedure practised in common law courts is known as the adversarial system.
The early development of case law in the 13th century led to yearly compilations of court cases known as Year Books. These are known as the law reports of medieval England and are a principal source of knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when common law developed into a recognisable form.
In common-law countries, judges are the "referees" between two adversarial lawyers presenting their versions of the facts. The jury is also a central element, with local citizens joining to weigh the evidence and determine the facts, to which the judge then applies the law. The statutes in a common-law country do not provide the whole answer to a dispute. Judges are on their own in sorting out disputes and determining which party will win. They arrive at a judgment by applying traditional or customary local law, as it developed case by case in the local courts.
Examples of common-law countries include 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. Essentially, every country that was colonised at some time by England, Great Britain, or the United Kingdom uses common law except those that were formerly colonised by other nations, such as Quebec, South Africa, and Sri Lanka.
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The influence of English common law
The English common law, which originated in the early Middle Ages in the King's Court, has had a profound and lasting influence on the legal systems of many countries, particularly those that were formerly British colonies or members of the Commonwealth. The Magna Carta, a fundamental document in the development of common law, placed limits on the power of English monarchs and served as a bill of rights for the aristocracy and judiciary, shaping the legal landscape for centuries to come.
One of the key characteristics of common law is the principle of stare decisis, or precedent, where judges are bound to follow the decisions of earlier judges in similar cases. This has resulted in a body of case law that serves as a source of legal authority, with the Year Books of medieval England providing valuable insights into the evolution of legal doctrines, concepts, and methods during this period.
In addition to its direct influence on the legal systems of specific countries, English common law has also contributed to the development of certain areas of law that are now practised internationally. For instance, contract law is broadly similar across common-law countries, and commercial parties often choose the law of a common-law jurisdiction when resolving contractual disputes due to the predictability and simplicity it offers.
Furthermore, the English common law system has had a significant impact on the legal profession itself. The development of case law and the reliance on judicial precedent have fostered a culture of legal scholarship and analysis, with judges and lawyers playing a pivotal role in interpreting and shaping the law. This has led to the establishment of legal education and training institutions, such as law schools and bar associations, which have further contributed to the evolution of legal systems both domestically and internationally.
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Common law and contract law
Common law, the body of customary law based on judicial decisions and court cases, has been administered by the common-law courts of England since the Middle Ages. It has evolved and spread to the United States and most member states of the Commonwealth.
Contract law, on the other hand, is a system where individuals can voluntarily assume legally binding obligations that are enforceable by law. It is based on the idea that a contract is a promise that is enforceable by law. Contract law is similar in all common-law countries. For example, in common-law countries, contract law is based on the principle of "pacta sunt servanda", which means that contracts are to be honoured.
The formation of a contract under common law involves several elements, including offer, acceptance, and consideration. An offer gives the power of acceptance to another party, and it includes the agreement's essential elements, which must be definite and certain. For instance, an offer to sell a scooter for a specified amount is valid as it contains the price, the person to whom the offer is made, and the object of the offer. Acceptance, to be valid, must be a mirror image of the offer, meaning it must be precisely the same.
Additionally, all common-law contracts must contain valid consideration, which means there must be a bargained-for exchange of acts or promises. Both parties must incur new legal obligations or detriments as a result of the contract. For example, an employment contract may stipulate that an employee agrees to work for a specified period, and the employer agrees to compensate the employee with a specified salary and benefits in exchange for their work.
In the United States, contract law is governed by both common law and the Uniform Commercial Code (UCC). The UCC contains two sets of rules: one for everyone and one for merchants. Common law governs contracts for services and contracts not otherwise governed by the UCC. It is important to meet the elements of common-law contract formation, as they are more stringent than the requirements for formation between merchants under the UCC.
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Common law in former British colonies
Common law is a legal system based on customary law and judicial decisions, rather than statutes or constitutions. It originated in England in the early Middle Ages, following the Norman Conquest of 1066, and gradually supplanted local folk and manorial courts.
The British Empire spread the English legal system to its colonies in the British Isles, such as Wales and Ireland, and later to overseas colonies in North America, South Africa, Australia, Asia, and Africa. Many former colonies, including those that are now members of the Commonwealth, retain the common law system today.
In the colonies, the British adapted the law to local circumstances. For example, in North America, laws were implemented to regulate master-slave relations, and in Australia, colonizers adopted the practice of terra nullius, or "nobody's land," ignoring native land claims. In some cases, the British recognized the need to respect the civil rights of local colonists, as in Quebec, South Africa, and Sri Lanka, which did not adopt common law.
The degree of representation of the indigenous population in legislative bodies and the integration of indigenous and British common law courts and values influenced the long-term stability of the legal system in former colonies. The transplantation of common law to colonial territories provided the institutional tools necessary for strong development outcomes, but there is diversity among former British colonies in terms of modern rule of law indicators.
Today, approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law. Common law countries generally follow the English model of permitting judges to use their discretion in reallocating property and income in a way that seems fair during divorce proceedings.
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Common law and succession on intestacy
Common law is the body of customary law based on judicial decisions and embodied in reports of decided cases. It has been administered by the common-law courts of England since the Middle Ages and has evolved into the legal system found in the United States and most Commonwealth countries.
The rules of succession on intestacy are generally similar across common-law countries, but there are variations in detail. Intestacy statutes can vary widely in how they determine who is entitled to inherit a decedent's estate. Intestate succession, or the law of inheritance, is the succession to property that has not been disposed of by a valid last will or testament.
In most contemporary common-law jurisdictions, the law of intestacy is patterned after the common law of descent. Property goes first or in major part to a spouse, then to children and their descendants. If there are no descendants, the line of inheritance goes back up the family tree to the parents, the siblings, the siblings' descendants, the grandparents, the parents' siblings, and the parents' siblings' descendants, and usually so on further to more remote degrees of kinship.
In England and most Commonwealth countries, the spouse, children, and certain other dependents of the deceased are permitted to petition the court for discretionary financial provision out of an estate if the court judges that the testator did not make reasonable provision for them. In most jurisdictions today, dower and curtesy have been replaced by some type of elective share provision. Under an elective share formula, a surviving spouse can choose whether to force the estate to give a specified share of the estate to the surviving spouse or accept the provisions made in the spouse's will.
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Frequently asked questions
Common law is a legal system that originated 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. It is now found in the United States and most member states of the Commonwealth.
The commonwealth is a term used to refer to four states in the Eastern United States that were historically British colonial possessions. The term is also used for two US territories: Puerto Rico and the Northern Mariana Islands.
No, they are not the same. While common law is a legal system, the term commonwealth is merely stylistic and does not carry any legal or political significance.
Yes, they do. Both concepts are rooted in English law and history. Commonwealth states in the US, for instance, share a strong influence of English common law in some of their laws and institutions.
