Gavin Howe
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is primarily developed through judicial decisions rather than statutes, with judges empowered to resolve issues and establish new precedents in cases of first impression. Common law originated in England during the Middle Ages and has since spread to various countries, including the United States, Canada, India, Australia, and other former British colonies. It is characterised by an approach based on precedent and the incremental development of the law through analogy with established authorities. While common law systems provide flexibility and adaptability, civil law systems offer a more prescriptive approach with standardised codes and clear rules for judges to follow.
| Characteristics | Values |
|---|---|
| Basis | Judicial decisions, legal precedent, and stare decisis |
| Sources | Interpretations and opinions of judicial authorities and public juries |
| Nature | Unwritten laws |
| Approach | Based on precedent, incremental development of law, and analogy with established authorities |
| Emphasis | On earlier court decisions and rulings |
| Contractual relations | Commercial parties seek predictability and simplicity |
| Flexibility | Judges are empowered to resolve issues and establish new precedents in "cases of first impression" |
| Scope | More freedom in contracts, fewer provisions are implied by law |
| Comparison with civil law | Less prescriptive, less focus on codes and statutes |
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What You'll Learn
Common law vs civil law
Common law and civil law are the two main legal systems used throughout the world today. Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It originated in England during the Middle Ages and is practised today in several countries that were formerly British colonies or protectorates, including the United States, Canada, India, Australia, and New Zealand. Common law is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that judges in common law systems rely heavily on judicial precedent when making decisions, as prior court decisions are recognised as legally binding.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was disseminated widely in the 19th century, particularly through France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is the most common legal system in the world today, with about 150 countries practising it. Unlike common law, civil law systems rely primarily on legal codes that function as the primary source of law. While civil law is regularly updated, the goal of standardised codes is to create order and reduce bias in the application of laws. Civil law is generally more prescriptive than common law, which means that there are more provisions implied into a contract under a civil law system.
Another key difference between the two systems is that judicial decisions in common law systems are generally binding, whereas civil law court decisions are not binding in other cases, even if the facts are similar. This means that judges in common law systems tend to give more weight to precedent, while civil law judges tend to give less weight to judicial precedent. For example, the Napoleonic Code expressly forbade French judges from pronouncing general principles of law.
In summary, common law and civil law differ in their sources of law, with common law relying on judicial precedent and case law, while civil law relies primarily on codified statutes. Common law systems tend to have more extensive freedom of contract, as contracts are typically less implied by law, whereas civil law systems imply more provisions into contracts and have clearer rules for how judges should rule in specific disputes.
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Common law marriage
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, which means "to stand by things decided". This means that courts follow precedents established by previous decisions.
Common-law marriage, also known as non-ceremonial marriage, is a legal framework that may allow couples to be considered married without having formally registered their union as either a civil or religious marriage. Common-law marriage is not common among the US, but there are a number of states that have statutes or allow for common-law marriage if certain requirements are met. These requirements include the legal right or "capacity" to marry, intent to be married, and behaving as a married couple. Both partners must be at least 18 years old, of sound mind, and cannot already be married to other people. While there is no statutory requirement for the length of time a couple needs to live together, generally, the longer a couple lives together, the stronger their case is for common-law marriage.
In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may be legally defined as "unmarried spouses" and treated the same as married spouses for certain purposes such as taxes and financial claims. In Scotland, common-law marriage does not exist, although there was a type of irregular marriage called 'marriage by cohabitation with habit and repute' which was abolished in 2006.
In medieval Europe, marriage came under the jurisdiction of canon law, which recognized as a valid marriage one in which the parties stated that they took one another as wife and husband, even in the absence of any witnesses. The Catholic Church forbade clandestine marriage at the Fourth Lateran Council in 1215, which required all marriages to be announced in a church by a priest. England abolished clandestine or common-law marriages in the Marriage Act of 1753, which required marriages to be performed by a priest of the Church of England. However, this did not apply to American colonies, and common-law marriage survived in colonial America and is still recognized in some states today.
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Common law and marginalization
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin term that means "to stand by things decided". This means that judges in common law systems rely on past rulings, or case law, to guide their decisions in similar future cases. Common law is practised in several countries, including the US, Canada, India, Australia, the UK, and former British colonies and members of the Commonwealth.
Despite its widespread adoption, common law has been criticised for its role in the marginalisation of certain groups. The very nature of common law, which relies on precedent, means that past decisions, particularly outdated or biased ones, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This can result in the unfair marginalisation or disempowerment of certain groups, as seen in the example of common law marriage. While it is not common in the US, some states allow for common law marriage, which grants couples the legal status of being married without a formal civil or religious ceremony. However, the requirements for such marriages may disproportionately impact marginalised communities, such as those with lower socioeconomic status, racial minorities, or nontraditional family structures.
Furthermore, the indeterminacy and changeability of the law contribute to marginalisation. The 'shoreline' of the law is indistinct, with authorities approving and applying it in some cases while distinguishing or not following it in others. This creates a situation where certain groups or interpretations are inevitably marginalised, even if they are not permanently excluded from the law. For example, in common law appeal judgments, some reasons for a decision are prioritised as key legal points (ratio decidendis), while others are relegated to the position of obiter dicta, or marginalised remarks.
The impact of common law on marginalised communities has been a subject of academic study. Researchers have examined the difficulties faced by marginalised communities in accessing justice and engaging with the formal legal system. For instance, studies have explored the struggles of the landless rural workers' movement in Brazil, indigenous communities in Latin America and Aotearoa New Zealand, and peasants in China. These studies highlight the challenges that marginalised groups encounter when seeking protection and enforcement of their rights within the legal framework.
In conclusion, while common law systems provide predictability and simplicity in contractual relations, they can also contribute to the marginalisation of certain groups through the reliance on precedent, the indeterminacy of the law, and the potential for biased interpretations. Addressing these issues requires a commitment to law reform and ensuring equal access to justice for all communities.
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Common law in former colonies
Common law, which originated in the practices of English king's courts following the Norman Conquest in 1066, was spread to the British colonies. England first spread its legal system to Wales, then Ireland, and later to other colonies, a process continued by the British Empire. Many former colonies, including the United States, retain the common law system today, where judicial precedent and the style of reasoning inherited from English law are given great weight. Approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law.
The transplantation of common law to its colonial territories conferred upon these societies the institutional tools necessary to promote strong development outcomes. However, there is a diversity of modern rule of law indicators among former British colonies, which raises questions about the dynamics of the colonial institutional environment that led to these divergent results. For instance, the degree of representation in legislative bodies afforded to the indigenous population and the integration of indigenous and British common law courts and values played a role in fostering localized common law jurisprudence.
The legal practices of former colonies were influenced by the dynamics of the colonial institutional environment. For example, in French-speaking colonial Africa, there were no law reports, and information on historical cases comes from journal publications. In Guyana and Saint Lucia, which were formerly British colonies, there are mixed common law and civil law systems in place.
A reception statute is a statutory law that a former British colony may adopt upon gaining independence. Through this statute, the new nation receives pre-independence common law to the extent that it is not explicitly rejected by the legislative body or constitution of the new nation. Reception statutes consider pre-independence English common law and its precedent as the default law to govern the conduct of citizens and businesses in the new state.
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Common law in the modern era
Common law, also known as judicial precedent, judge-made law, or 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 based on the idea that judges in new cases should follow the rulings made in previous similar cases.
Common law originated in England during the Middle Ages, in the King's Court (Curia Regis), a single royal court set up near London. It was further developed in the centuries following the Norman Conquest of 1066. In the modern era, several countries continue to rely heavily on common law when resolving legal disputes, including the US, Canada, India, Australia, and the UK.
Common law is often chosen for its predictability and simplicity, particularly in commercial disputes. It is characterised by an approach based on precedent and the incremental development of the law by analogy with established authorities. This means that common law is constantly evolving as judges establish new precedents in "cases of first impression" with no previous precedent or clear legislative guidance.
Common law stands in contrast to civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the procedures for handling claims and the punishments for offences, and it is regularly updated to create order and reduce bias. While common law is based on precedent, civil law provides clear rules for judges to follow in specific disputes.
In conclusion, common law remains a significant legal system in the modern era, influencing the resolution of legal disputes in several countries. It is characterised by its reliance on judicial precedent, its evolution through new precedents, and its contrast with civil law.
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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 deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided".
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is generally more prescriptive than common law, which is less prescriptive and has fewer provisions implied in a contract.
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 practiced in several countries, including the United States, Canada, India, Australia, Hong Kong, New Zealand, and the United Kingdom.
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