Kara Sears
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, a Latin phrase meaning to stand by things decided, or to stand by decisions, where courts follow precedents established by previous decisions. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is largely based on precedent—judicial rulings made in previous similar cases—and is deeply rooted in stare decisis, which serves as binding precedent.
| Characteristics | Values |
|---|---|
| Other Names | Common law, Judicial precedent, Judge-made law, Interstitial common law |
| Basis | Precedent, Judicial rulings in previous similar cases, Interpretation and application of existing laws to specific situations |
| Nature | Unwritten laws, Body of law |
| Sources | Institutionalized opinions, Interpretations from judicial authorities and public juries |
| Influence | Inspiration for new legislation, Basis for evaluation of future cases |
| Role | Establishes new principles, Redefines existing principles, Resolves ambiguity, Allows for nuance |
| Jurisdiction | Common in federal or multi-jurisdictional law systems, May not be applicable in some civil law jurisdictions |
| Decision-making | Presiding judge determines which precedents to apply, Judges may deviate from precedents if outdated or substantially different |
| Appeal | Only an appeal accepted by the court of last resort will resolve conflicts between lower appellate courts |
| Variation | May vary across jurisdictions, e.g., civil law systems in Nordic countries are considered a separate branch |
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What You'll Learn
Common law
The role of judges in common law is crucial. They have the power to resolve issues and establish new precedents when faced with a "case of first impression" without clear legislative guidance. While common law promotes stability and consistency, it has also been criticized for leading to the marginalization or disempowerment of certain groups due to outdated or biased past decisions. For example, common law in England until the 1970s automatically granted custody of children to fathers during divorce proceedings, effectively trapping women in marriages.
In some civil law jurisdictions, the judiciary may have limited authority to invalidate legislative provisions or act outside established codes. This highlights the differences in the scope of judicial power between common law and civil law systems. The concept of common law, with its emphasis on judicial precedent and interpretation, has been influential in shaping legal traditions and systems globally.
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Civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common law may incorporate certain statutes, but 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.
In some civil law jurisdictions, the judiciary does not have the authority to invalidate legislative provisions. For example, the French civil law tradition does not follow the doctrine of stare decisis, meaning that civil law codes must be constantly changed because the precedent of courts is not binding.
The legal systems of Nordic countries are sometimes included among civil law systems, but as a separate branch. In Sweden, case law arguably plays a more important role than in some of the Continental codified law systems. The two highest courts, the Supreme Court and the Supreme Administrative Court, have the right to set precedent, which is binding in practice but not formally.
Some pluralist systems, such as Scots law in Scotland and types of civil law jurisdictions in Quebec and Louisiana, do not fit neatly into the dual common-civil law system classifications. Their substantive law is rooted in the civil law tradition, but they have also been heavily influenced by the Anglo-American common law tradition. Because of their position between the two main systems of law, these types of legal systems are sometimes referred to as mixed systems of law.
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Judicial decisions
In common law jurisdictions, several stages of research and analysis are required to determine "what the law is" in a given situation. This involves ascertaining the facts, locating relevant statutes and cases, extracting principles, analogies, and statements by various courts, and then integrating all the information to determine "what the law is". The presiding judge determines which precedents to apply in each case, and judges are empowered to establish new precedents in "cases of first impression" with no clear legislative guidance.
While civil law is a comprehensive, codified set of legal statutes created by legislators, common law is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. In civil law jurisdictions, the judiciary may not have the authority to invalidate legislative provisions, and there is no doctrine of stare decisis. Civil law codes must be constantly changed because court precedent is not binding.
Case law plays a significant role in shaping the legal system and ensuring its evolution. It provides clarity and guidance to legal professionals on how laws are interpreted and applied in real-life situations, helping to ensure consistency in court rulings. In some civil law systems, such as Sweden, case law may play a more important role than in some Continental codified law systems. The highest courts in Sweden have the right to set precedent, which is binding in practice but not formally.
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Precedent
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. Common law is deeply rooted in stare decisis ("to stand by things decided"), where 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 new precedent. The presiding judge determines which precedents to apply in deciding each new case.
In federal or multi-jurisdictional law systems, there may exist conflicts between the various lower appellate courts. Sometimes these differences may not be resolved, and it may be necessary to distinguish how the law is applied in one district, province, division, or appellate department. Usually, only an appeal accepted by the court of last resort will resolve such differences, and for many reasons, such appeals are often not granted. Any court may seek to distinguish the present case from that of a binding precedent to reach a different conclusion. The validity of such a distinction may or may not be accepted on appeal of that judgment to a higher court.
In some civil law jurisdictions, the judiciary does not have the authority to invalidate legislative provisions. There is no doctrine of stare decisis in the French civil law tradition. Civil law codes must be changed constantly because the precedent of courts is not binding, and because courts lack the authority to act if there is no statute. In contrast, common law systems give significant discretion to judges to interpret and apply the law, relying on case law and judicial precedent.
The legal systems of the Nordic countries are sometimes included among the civil law systems but as a separate branch and sometimes counted as separate from the civil law tradition. In Sweden, for instance, case law arguably plays a more important role than in some of the Continental codified law systems. The two highest courts, the Supreme Court and the Supreme Administrative Court, have the right to set precedent, which is binding in practice but not formally.
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Court structure
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 deeply rooted in stare decisis, which means "to stand by things decided" or "to stand by decisions". 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. The presiding judge determines which precedents to apply in deciding each new case.
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 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".
In federal or multi-jurisdictional law systems, conflicts between various lower appellate courts may arise. These differences may not always be resolved and may require distinguishing how the law is applied in one district, province, division, or appellate department. Usually, only an appeal accepted by the court of last resort will resolve such differences, and for many reasons, such appeals are often not granted. Any court may seek to distinguish the present case from a binding precedent to reach a different conclusion. The validity of such a distinction may or may not be accepted on appeal to a higher court. An appellate court may also decide on a new analysis that may or may not be bound by its previous decisions.
In some civil law jurisdictions, the judiciary does not have the authority to invalidate legislative provisions. There is no doctrine of stare decisis in the French civil law tradition, and courts lack the authority to act if there is no statute. Civil law codes must be constantly changed because court precedents are not binding. Civil law is a comprehensive, codified set of legal statutes created by legislators, which clearly defines the cases that can be brought to court and the procedures for handling claims. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the goal of standardized codes is to create order and reduce bias in the system.
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Frequently asked questions
Case law is a law established following a decision made by a judge or a group of judges. It is developed by interpreting and applying existing laws to a specific situation and clarifying them when necessary.
Common law is a wider legal system that was developed in medieval England and has evolved since. It relies on case law, using judicial decisions and precedents to change over time.
Judges play a crucial role in case law by interpreting and applying existing laws to specific situations. They also set precedents that guide future rulings and interpretations of a particular law.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court and the procedures for handling claims. In contrast, case law is a body of unwritten laws based on legal precedents established by the courts.
