Cecily Zamora
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 influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. The early development of case law in the 13th century has been traced to Bracton's On the Laws and Customs of England and 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 for the developing legal doctrines, concepts, and methods of the period.
| Characteristics | Values |
|---|---|
| Name | Common law, also known as case law |
| Definition | A body of unwritten laws based on legal precedents established by the courts |
| History | The early development of case-law in the 13th century has been traced to Bracton's On the Laws and Customs of England |
| Examples | The United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand |
| Features | Draws from institutionalized opinions and interpretations from judicial authorities and public juries |
| Purpose | To establish consistent outcomes by applying the same standards of interpretation |
| Benefits | Promotes stability and consistency in the legal justice system |
| Criticism | Historically, the traditions of common law have led to unfair marginalization or disempowerment of certain groups |
| Rule of Law | The foundation for communities of justice, opportunity, and peace |
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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. Common law is a body of unwritten laws based on legal precedents established by the courts. It is often contrasted with civil law, which is rooted in the Roman Empire and relies on legal codes as its primary source of law. Common law is less prescriptive than civil law, with fewer provisions implied into contracts. It is also more flexible, allowing for new issues to be raised and for the legal grounds of a case to be reformulated.
Common law, also known as case law, draws from institutionalized opinions and interpretations of judicial authorities and public juries. It relies on detailed records of similar situations and statutes because there is no official legal code for a particular case. The judge presiding over a case determines which precedents apply. While lower courts generally follow the example set by higher courts, they can deviate from precedents if they are outdated or if the current case is substantially different.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishments for offenses. Civil law systems are generally more prescriptive than common law systems, with more provisions implied into contracts. This can result in shorter contracts, as not all terms need to be explicitly stated.
The primary contrast between the two systems is the role of written decisions and precedent as a source of law. Common law places great weight on precedent, recognizing prior court decisions as legally binding. Civil law judges, however, tend to give less weight to judicial precedent. For example, the Napoleonic Code in France expressly forbade judges from pronouncing general principles of law.
Common law originated in medieval England and is practiced in countries that were former British colonies or protectorates, including the United States, Canada, Australia, New Zealand, India, and Hong Kong. Civil law, the world's most common legal system, is practiced in about 150 countries and was influenced by Roman law, Napoleonic codes, Germanic codes, and feudal law.
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Judicial authorities' role
The judiciary, also known as the judicial system, is the system of courts that interprets, defends, and applies the law in legal cases. It is also responsible for resolving disputes and adjudicating legal disagreements. While the judiciary generally does not make or enforce laws, it plays a crucial role in interpreting and applying the law to specific cases. In some countries, the judiciary does have the power to create common law.
Judicial authorities play a significant role in shaping the law by interpreting and applying it to specific cases. They draw from institutionalized opinions, interpretations, and precedents to guide their decisions. In common law systems, there is no official legal code, so judges determine which precedents apply to a particular case. The decisions made by higher courts are binding on lower courts, promoting stability and consistency in the legal system. However, lower courts can deviate from precedents if they are outdated or if the current case significantly differs.
Judicial activism is a perspective that advocates for judges to go beyond simply upholding precedents. Judicial activists believe that judges should consider social policies and changes when arriving at their decisions, even if it contradicts existing precedents. They see this as an important responsibility of the courts to apply the law to suit current situations. On the other hand, those who argue for judicial restraint believe that law-making is the legislature's role and that judges should not create new laws through their decisions.
The role of judicial authorities in different countries varies. In the United States, the federal court system includes trial courts, appellate courts, and the Supreme Court, which is the final authority on interpreting the Constitution and federal statutes. State courts handle most litigation and may have different structures. In France, the final authority on interpreting the law differs between administrative, civil, and criminal cases, with the Council of State and the Court of Cassation playing these roles, respectively. In Japan, the process of selecting judges is more stringent, requiring assistant judges to serve for several years before qualifying to sit alone.
Judicial authorities are expected to adhere to a code of conduct, ensuring ethical behaviour and impartiality. They are responsible for supervising other judges, taking appropriate action in cases of misconduct, and maintaining a respectful workplace free from harassment and abusive behaviour. The specific powers and responsibilities of judicial authorities can vary across jurisdictions, but their role in interpreting and applying the law remains crucial in shaping the legal landscape.
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Precedent decisions
Cases that lay the foundation for laws are called "common law", also known as "case law". Common 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.
The role of judges in applying precedent decisions is crucial. Judges present the precedents that apply to a specific case, influencing the criteria that juries use to interpret and decide on that case. Judges have the discretion to determine which precedents are relevant and how they should be applied. They can also modify, deviate from, or overturn precedents, especially if they are outdated or if the current case significantly differs from the precedent.
The Year Books, the earliest known law reports from medieval England, provide valuable insights into the development of legal doctrines, concepts, and methods during the formative years of common law, from the 13th to the 16th centuries. These annual compilations of court cases, starting in 1268, showcase the evolution of legal thinking and the establishment of precedent decisions as a cornerstone of the common law system.
While precedent decisions play a pivotal role in maintaining consistency, they have also faced criticism for perpetuating marginalization and disempowerment of certain groups. Historical biases embedded in past decisions can continue to shape future rulings until societal changes prompt a judicial body to overturn those precedents. For example, in England, common law historically favored fathers over mothers in child custody cases during divorce, reflecting a bias that made it challenging for women to leave marriages.
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Unwritten laws
Cases that lay the foundation for laws are called common law, which is a body of unwritten laws based on legal precedents established by the courts. Unwritten law, also known as customary law, is a type of law that is not derived from written rules or a law book. Instead, it is based on customs, traditions, and past court decisions.
Unwritten law is an important part of the legal system, providing flexibility and adaptability. While the specific rules may not be explicitly stated, they are discovered and applied through reason and interpretation. For example, in the common law system, judges may look beyond the written words of a precedent to understand the underlying principles and reasoning. This allows them to derive and apply authoritative rules that are not written down.
Another example is the code of silence that often exists among police officers, which is an unwritten law that shields them from accountability. This type of unwritten law is based on power dynamics and can be used to intimidate or exclude those who challenge it.
In some cases, unwritten laws can lead to unfair marginalization or disempowerment of certain groups. For instance, common law in England previously held that fathers were entitled to custody of children during a divorce, which kept women trapped in marriages. It is important for legal systems to regularly review and update their laws to ensure that they remain fair and unbiased.
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Law reports
The emergence of the modern doctrine of the binding force of judicial precedent is closely tied to the development of good law reporting and a settled judicial hierarchy. The doctrine of precedent dictates that a court is bound by the decisions of a higher court and, usually, by a court of equivalent standing. Superior courts can overrule the decisions of lower courts and, in certain cases, their own decisions. The hierarchy of courts was established by the Judicature Acts of 1873-1875, with the House of Lords serving as the final Court of Appeal until it was replaced by the Supreme Court in 2009.
The process of law reporting has evolved with the advent of the Internet. Courts can now publish their decisions on websites, making them more accessible to the public and reducing the reliance on printed law reports. However, the transition to digital law reports has also raised questions about the need for a uniform and practical citation format.
In the United Kingdom, case law recorded in law reports acts as a significant source of law and provides the bulk of the country's legal framework. The Year Books of medieval England, for instance, are considered the law reports of that era and offer valuable insights into the developing legal doctrines, concepts, and methods of the time.
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Frequently asked questions
Cases that lay the foundation for laws are called common law, also known as case law.
Common 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 influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law.
Civil law is a comprehensive, codified set of legal statutes created by legislators, whereas common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a specific case.
