Cecily Zamora
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 common law jurisdictions, several stages of research and analysis are required to determine what the law is in a given situation. Common law is more flexible than statutory law, as it can be reinterpreted and revised without legislative intervention. It is also more adaptable than civil law, as it can address situations not originally predicted by lawmakers. Common law has sometimes inspired new legislation, such as in the UK where the ancient common-law offence of outraging public decency was recently used to prosecute a new intrusive activity called upskirting.
| Characteristics | Values |
|---|---|
| Definition | A "body of law" based on court decisions rather than codes or statutes. |
| Basis | Court decisions, legal precedents, institutionalized opinions, and interpretations from judicial authorities and public juries. |
| Flexibility | More flexible than statutory law as it can be reinterpreted and revised without legislative intervention. |
| Efficiency | Court proceedings are shorter as judges only need to follow precedent. |
| Adaptability | Can address situations not originally predicted by lawmakers. |
| Judicial Lawmaking | Critics argue that it leads to judicial overreach. |
| Legislative Intervention | Not required for changes in common law. |
| Binding | Decisions of a court are binding only in a particular jurisdiction. |
| Weightage | Decisions of higher courts or legislatures carry more weight. |
| Unification | Established a unified legal system across the British Isles and colonies. |
| Inspiration for Legislation | Provides the basis for new legislation, e.g., the UK's Voyeurism (Offences) Act. |
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What You'll Learn
Common law vs civil law
There are two main types of legal systems in the world: Common Law and Civil Law. About 150 countries have civil law systems, while there are approximately 80 common law countries. Common law, also known as the Anglo-Saxon tradition, originated in England during the Middle Ages and was spread to British colonies across the world. Civil law, or the Latin/Roman tradition, developed in continental Europe and was applied in the colonies of European empires such as Spain and Portugal.
Common law is deeply rooted in stare decisis, which means "to stand by things decided". This means that past rulings are considered when deciding new cases (case law). Common law is more malleable than statutory law, as it evolves through a series of gradual steps over time. Common law courts are not bound by precedent but can reinterpret and revise the law to adapt to new trends. In common law systems, judicial cases are regarded as the most important source of law, giving judges an active role in developing rules.
Civil law systems, on the other hand, are more prescriptive and rely on codes to cover all eventualities. Judges in civil law systems have a more limited role of applying the law to the case at hand. There are several provisions implied into a contract under civil law, and less importance is placed on setting out all the terms in the contract itself.
In a common law system, there is a greater emphasis on freedom of contract, with few provisions implied into the contract by law. It is important to set out all the terms governing the relationship between the parties in the contract itself. Judicial decisions are binding, and decisions of the highest court can generally only be overturned by that same court or through legislation.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, informal marriage, de facto marriage, or marriage by habit and repute, is a marriage that occurs without a statutorily defined process, marriage license, or ceremony. Instead, it is an agreement between two legally capable individuals who intend to be married, followed by cohabitation and public recognition of their union as a married couple.
The concept of common-law marriage originated from ancient practices where marriages were private agreements between individuals, and community recognition largely determined the legitimacy of a marriage. In medieval Europe, canon law recognised marriages even in the absence of witnesses, provided the individuals stated their intention to be husband and wife. However, the Catholic Church later forbade clandestine marriages, requiring priestly announcement and witnessing.
In modern times, the recognition of common-law marriages varies across jurisdictions. While some provinces in Canada may grant couples in marriage-like relationships similar rights and responsibilities as married spouses, they are not legally considered married. Similarly, in Scotland, common-law marriage does not exist, although a form of irregular marriage called 'marriage by cohabitation with habit and repute' was recognised until 2006.
In the United States, common-law marriage has existed since colonial times and is currently recognised in seven states and the District of Columbia, with varying requirements and restrictions. Generally, common-law marriage requires cohabitation, legal capacity to marry, mutual intention to be married, and public recognition as a married couple. The length of cohabitation may vary, and while there is no statutory requirement, longer periods strengthen the case for common-law marriage.
It is important to note that common-law marriage should not be confused with cohabitation or other legally recognised relationships, such as domestic partnerships or civil unions, which differ in their legal status and rights afforded to the couple.
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Common law and legislation
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law 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. However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent.
Common law is more flexible than statutory law. Common law courts are not absolutely bound by precedent and can reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal, and social philosophy. The common law evolves gradually over time, allowing the law to change substantially without a sharp break, reducing disruptive effects.
In contrast to common law, the legislative process for creating statutes can be lengthy and difficult to initiate. It involves introducing a bill, committee discussions, debates, potential conference committees, voting, and approval from the head of state.
Common law has sometimes served as the basis for new legislation. For example, the U.K. has long had a common-law offence of "outraging public decency". In recent years, this common law was used to prosecute a new intrusive activity called "upskirting". In 2019, the U.K. Parliament passed the Voyeurism (Offences) Act, officially criminalizing upskirting and establishing specific punishments.
Common law and civil law are the two main legal systems used throughout the world. While common law relies on case law and legal precedent, civil law systems primarily rely on codes and statutes. Civil law provides a comprehensive, standardized set of legal statutes that outline procedures for handling claims and punishments for offenses. Unlike common law, civil law systems do not consider court decisions as binding in other cases, even if the facts are similar.
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Common law and judicial lawmaking
Common law, also known as judicial precedent, judge-made law, or case law, is a body of law primarily developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous rulings. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.
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, relevant statutes and cases must be located, followed by extracting the principles, analogies, and statements by various courts. Finally, one integrates all the lines drawn and reasons given and determines "what the law is", which is then applied to the facts. Common law is more malleable than statutory law, as common law courts are not absolutely bound by precedent and can reinterpret and revise the law without legislative intervention. This allows the law to adapt to new trends in political, legal, and social philosophy.
Jeremy Bentham, a famous critic of judicial lawmaking, argued in favor of codification and narrow judicial decisions. He believed that judges were overreaching their authority and that case law should be used to redress certain challenges to established law. However, critics of judicial lawmaking are not always consistent, as they sometimes decry judicial overreach while also being unsatisfied with a narrow interpretation of judicial decisions. Oliver Wendell Holmes once dissented, stating that "judges do and must legislate".
Common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal 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 has practical applications in areas such as contract law and the law of torts, and it allows for efficiency, adaptability, and flexibility in the legal system.
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Common law and statutory law
There are two main types of law within the legal system: common law and statutory law. Both types of law set standards of acceptable behaviour and justice for citizens and the government. However, they come from different origins and are applied in different ways. Understanding the differences between common law and statutory law can help individuals better understand their rights.
Common law, also known as "case law", is uncodified and unwritten. It is not written out in statutes or books but is instead based on precedent, depending on judicial rulings from previous cases. These historical rulings set a precedent for future legal decisions. Common law is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. When similar cases arise, courts typically align their reasoning with the precedent set in the previous decision. However, in a case of first impression with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent. Common law is more malleable than statutory law. Common law courts are not absolutely bound by precedent but can reinterpret and revise the law without legislative intervention to adapt to new trends. The common law evolves through a series of gradual steps, allowing the law to change substantially over time without sharp breaks, reducing disruptive effects.
Statutory law, also called "civil law", is created and codified by legislative bodies such as Congress, state legislative counterparts of Congress, or other such bodies. It is written down and formally passed by a legislative body at the local, state, or federal level. Statutory law is much more rigid in its application and is applied as written. Judges apply the law without relying on past cases to interpret it. Statutory law is subject to change and can be amended or repealed by lawmakers. It can be overturned, modified, or updated, especially if found to be unconstitutional. Some statutes are even written with an expiration date and must be renewed if still deemed necessary. In this way, statutory law is both strict and adaptable, ensuring that the law remains relevant to the people it governs.
In many instances, common law and statutory law are interdependent, although they may appear to function independently. Each jurisdictional entity has governmental bodies that create common, statutory, and regulatory law, although some legal issues are handled more often at the federal level, while others are the domain of the states.
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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 draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Civil law is a comprehensive, codified set of legal statutes created by legislators. Civil law systems rely primarily on codes and statutes, whereas common law systems rely on caselaw and legal precedent to guide their decisions.
Common law can provide the basis for new legislation. For example, the UK has long had a common-law offence of "outraging public decency". In 2019, the UK Parliament passed the Voyeurism (Offences) Act, which made the practice of "upskirting" a crime. This new legislation was based on the ancient common law offence.
