Cameron Miranda
Common law, also known as common-law, is a legal system that originated in England during the Middle Ages and has since spread to various parts of the world, including the United States and most members of the Commonwealth. It is a body of law based on custom, general principles, and previous court decisions, often referred to as case law or precedent. The flexibility of common law allows it to adapt to societal changes, and its reliance on precedent promotes stability and efficiency in the legal system. However, the degree to which external factors should influence common law adjudication remains a subject of debate. With its roots in English common law, American common law has evolved to include direct precedent and analogy to decided law. This raises the question: should the term common law be capitalized?
| Characteristics | Values |
|---|---|
| Stability and consistency | Everyone involved knows that the ultimate outcome will be based on previous caselaw, not on subjective, personal viewpoints |
| Efficiency | Court proceedings can be shorter, saving time and money |
| Adaptability to the unforeseen | Courts can address situations not originally predicted by lawmakers |
| Flexibility | Can respond to changes in society |
| Based on custom and general principles | Embodied in case law and serves as precedent |
| Influenced by | Judicial decisions, social customs, and social sciences |
| Applicable to | Situations not covered by statute |
| Origin | England |
| Current use | United States and most member states of the Commonwealth |
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What You'll Learn
Common law's roots in England
The common law is deeply rooted in the English legal system. It is a body of law that is based on custom and general principles and is embodied in case law. It serves as a precedent and is applied to situations not covered by statutes. The common law, or 'common to all the king's courts across England', originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. This conquest introduced a number of legal concepts and institutions from Norman law to England.
The Anglo-Norman legal system replaced Anglo-Saxon law in England following the Battle of Hastings in 1066. The 12th century saw a shift across northwestern Europe from predominantly local, informal power arrangements typical of customary law to formal government organised along bureaucratic lines. In England, this shift was marked by the reign of Henry II (1154-89), when the permanent royal courts (the Courts of the King's Bench and of Common Pleas) were established in Westminster, London. Previously, the king's court had been itinerant, meeting wherever the king happened to be.
Henry II's reorganisation of royal justice was extensive, expanding geographically and socially, across all classes from freemen to the highest-ranking nobles. The reforms that directly concerned property law (known as the possessory assizes) were based on the use of royal writs, brief written orders from the king, to initiate lawsuits. Any freeman could purchase a writ to start a lawsuit against another party, for example, to recover property.
In the early centuries of English common law, justices and judges adapted the system of writs to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law. Over time, common law became the foundation and prime source of English law, though the most authoritative law is statutory legislation, which comprises Acts of Parliament, regulations, and by-laws.
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Common law in the US
In the US, common law is a body of law that is based on custom and general principles and is embodied in case law. It serves as a precedent and is applied to situations not covered by a statute. It is derived from judicial decisions instead of statutes, with American courts originally basing their rules on English common law.
The US common law system is not a pure common law system, as there are codified statutes that courts must consider. However, the principle of stare decisis remains constant, meaning that prior court decisions interpreting a statute are binding. This is in contrast to civil law systems, where a judge's decision is not binding in later cases involving different parties.
The development of common law in the US can be traced back to the early 20th century, with Louis Brandeis, later appointed to the United States Supreme Court, who became noted for his use of policy-driving facts and economics in his briefs. Today, common law decisions reflect both precedent and policy judgment drawn from economics, the social sciences, and business decisions from foreign courts.
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Common law's influence on civil law
When discussing the legal system, "common law" is typically capitalised.
Common law and civil law are two distinct legal systems with contrasting characteristics. Common law is a body of unwritten laws based on legal precedents established by the courts, while civil law is a comprehensive set of codified legal statutes created by legislators. Despite their differences, common law has had a significant influence on the development and practice of civil law in several jurisdictions.
One of the defining features of common law is its reliance on judicial precedent. Judges in common law systems refer to past decisions and traditions to guide their rulings in similar present-day cases. This promotes stability and consistency in the legal system. While civil law systems generally place less weight on judicial precedent, they often generate a large number of reported legal opinions. In some civil law jurisdictions, such as those influenced by Roman law, common law serves as an academic source of authority or a background law that influences public law.
For example, in the French civil law tradition, including French-speaking colonial Africa, there is no doctrine of stare decisis, and judges are expressly forbidden from pronouncing general principles of law. However, due to the influence of common law, regular law reports are published in France, although this is not a consistent practice in many civil law jurisdictions.
In some countries, civil law has been heavily influenced by common law. For instance, the civil law tradition in Scotland borrows heavily from Roman-Dutch law, which is a mix of civil law and common law. Similarly, Quebec's private law is of French civil origin but has been influenced by the public law and judicial system of Canadian common law. Puerto Rico, the Philippines, and Louisiana are examples of jurisdictions where civil law is the background law, but public law is heavily influenced by common law.
Additionally, Chinese laws have absorbed some features of the common law system, particularly in Hong Kong, where common law is ensured by the Basic Law. Even in countries with well-established civil law systems, such as Italy, the Netherlands, Brazil, and Argentina, innovations influenced by common law have been introduced.
In conclusion, while civil law and common law are distinct legal systems, common law has had a notable influence on civil law in various jurisdictions. This influence ranges from the adoption of certain practices and principles to the introduction of hybrid legal systems that combine elements of both traditions.
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Common law's flexibility
Common law is a body of law that is based on custom and general principles and is embodied in case law. It is a group of legal practices and traditions originating in judges' decisions in earlier cases and in social customs. The flexibility of common law can encourage good judgment.
In most "Western" countries, the foundation of judicial decision-making is a written code or legislative enactment. This approach is particularly evident in continental Europe and in the interpretation of EU treaties by the ECJ. In contrast, in common law jurisdictions, past cases, their implications, and inferences heavily influence the outcome of new cases. This flexibility allows judges to consider the reasonableness of applying a particular legal rule in the specific circumstances of a case.
For example, in R (Soma Oil and Gas Ltd) v Director of the SFO [2016] EWHC 2471, the judge considered the economic consequences of putting legal principle before pragmatism. The judge's ability to look beyond the confines of the law and consider the specific circumstances of the case exemplifies the flexibility of the common law system.
The flexibility of common law also allows it to evolve and adapt to changing societal needs and values. For instance, the law of fraud, both civil and criminal, has evolved over time to address contemporary problems. Conspiracy, for example, was invented by courts in the nineteenth century to address perceived issues with fraud allegations.
Additionally, common law is flexible in that it draws on experience and learning from everyday life, other fields, and other jurisdictions. This flexibility enables judges to make decisions that reflect both precedent and policy judgment, incorporating insights from economics, the social sciences, and business.
In summary, the flexibility of common law is evident in its ability to encourage good judgment, adapt to changing societal needs, and incorporate insights from various fields and jurisdictions. This flexibility is a key strength of the common law system, enabling it to better serve the needs of society.
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Common law's pros and cons
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that gives great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions.
Pros of Common Law
One of the advantages of common law is that it promotes stability and consistency in the legal justice system. By relying on past decisions and precedents, common law provides a framework for judges to make informed and consistent rulings. It also allows for flexibility and adaptability, as judges can modify or deviate from precedents if they are outdated or if the current case significantly differs from previous cases. Additionally, common law gives more weight to the separation of powers between the judicial and executive branches, promoting an adversarial system where two sides present their cases to a neutral judge.
Cons of Common Law
One of the main criticisms of common law is that it can be challenging to overturn outdated or biased precedents, particularly for marginalised groups. Past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn them. This can result in a lag between societal progress and legal interpretations, as seen in the example of gender biases in divorce cases in England until the 1970s. Additionally, common law systems can be complex and time-consuming, requiring multiple stages of research and analysis to determine the applicable law in a given situation.
Common law has its advantages and disadvantages. While it promotes stability and flexibility by relying on judicial precedents, it can also be challenging to update or change outdated or biased interpretations. Common law systems also involve intricate processes, which can make them less accessible and lengthen the legal process. Overall, common law is a significant aspect of the legal systems in many countries, particularly those with a historical connection to England and former British colonies.
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Frequently asked questions
Common law is a body of customary law based on previous judicial decisions and social customs.
Common law should be capitalized when referring to the legal system, e.g. "Common Law courts". However, when referring to the concept in a general sense, it should not be capitalized, e.g. "common law traditions".
Common law is known for its stability, consistency, and efficiency. It is also flexible and adaptable to unforeseen situations as it is based on precedent rather than subjective viewpoints.
The common law system is used in England and Wales, and it has influenced the legal systems in the United States, Ireland, and most member states of the Commonwealth.
Common law is based on precedent and social customs, while civil law is derived from statutes and codes. Common law is more flexible and adaptable, while civil law may offer more stability and predictability.
