Cecily Zamora
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law systems are primarily found in countries that were former British colonies or protectorates, including the United States. In contrast, civil law systems, which are more prevalent in former French, Dutch, German, Spanish, and Portuguese colonies, are based on a comprehensive code of statutes that outline specific rules and procedures. Common law relies on stare decisis, a Latin phrase meaning to stand by things decided, where judges refer to previous rulings and decisions to guide their current cases. While civil law provides clear guidelines for judges to follow, common law allows for more flexibility and interpretation.
| Characteristics | Values |
|---|---|
| Basis | Judicial decisions, legal precedents, and previous court rulings |
| Sources | Case law, legal writings, court decisions, and institutionalized opinions |
| Flexibility | More flexible than civil law |
| Judicial independence | Judges have more freedom to interpret the law |
| Precedent | Stare decisis, or following previous decisions, is a key principle |
| Geographic origin | Originated in England and spread to former British colonies |
| Current use | Used in the US (except Louisiana), Ghana, and others |
| Marriage laws | Recognizes common-law marriage in some cases |
| Crime and punishment | Used to prosecute new crimes, such as "upskirting" |
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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. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. In other words, common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand. The judge presiding over a case determines which precedents apply to that particular case. Common law originated in medieval England and is used in many of its former colonies, including the United States.
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 comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Unlike common law, civil law systems rely on legal codes that function as the primary source of law. Civil law is the world's most common legal system, practiced in about 150 countries.
One key difference between the two systems is the role of written decisions and precedent as a source of law. Common law systems place great weight on 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. There is no doctrine of stare decisis in the French civil law tradition.
Another difference lies in the prescriptive nature of the two systems. Civil law is generally more prescriptive than common law. In a civil law system, there are a number of provisions implied into a contract, and less importance is placed on setting out all the terms governing the relationship between the parties in the contract itself. In contrast, a common law system is less prescriptive, with few provisions implied into a contract. Therefore, it is crucial to outline all the terms governing the parties' relationship in the contract itself.
In conclusion, while both common law and civil law systems aim to establish consistent outcomes by applying the same standards of interpretation, they differ in their reliance on legal precedents and the degree of prescription. Common law systems are based on judicial decisions and precedents, while civil law systems rely on comprehensive legal codes created by legislators.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, is a marriage that takes legal effect without a marriage license or ceremony. It occurs when two people who intend to be married live together as a married couple and hold themselves out to the world as a married couple. Common-law marriage is not recognised in all jurisdictions, but those that do will typically respect the validity of such marriages lawfully entered in another state or country.
In the United States, common-law marriage has existed since colonial times and is still recognised in seven states and the District of Columbia. Another nine states recognise it with some restrictions. Common-law marriage is also recognised in Canada, although couples in marriage-like relationships are not legally considered married and may be defined as "unmarried spouses".
In England, common-law marriage was abolished by 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 the American colonies, where common-law marriage survived and is still recognised today in some states.
The requirements for common-law marriage vary by jurisdiction, but generally include living together (with no statutory requirement for the length of time), having the legal right or "capacity" to marry, and intending to be married. Behaving as a married couple, such as referring to each other in public as "partner" or "spouse", is also important.
Overall, common-law marriage is a legal framework that grants similar rights to married couples without the need for a formal marriage license or ceremony, as long as certain conditions are met.
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Common law in the US
Common law is a legal system based on precedents established by the courts and analogous to comparable areas of decided law. It is primarily based on judicial decisions and precedents, in contrast to civil law, which relies on codified statutes enacted by legislative bodies. Common law is a body of unwritten laws based on legal precedents established by the courts.
In the US, common law and civil law are both used. While each state has its own common law traditions, the role of federal common law is limited. It applies primarily to interstate disputes where state laws conflict, federal government interests, and specific areas like securities fraud and antitrust regulations. However, when Congress enacts legislation covering a legal area, federal common law is overridden.
Common law is derived from judicial decisions instead of statutes. American courts originally fashioned common law rules based on English common law until the American legal system was mature enough to create its own common law rules. Although the US is considered a common law country, none of its common law systems are technically pure common law systems due to the many codified statutes that courts must consider.
Common law covers broad areas of the law, most notably relating to property, contracts, and torts, which are traditionally within the jurisdiction of the states. Thus, state courts are the primary source of common law. Common law changes over time, and each state has its own common law on many topics.
An example of common law in action is Roe v. Wade (1973), where the US Supreme Court established a precedent for reproductive rights. Another example is the concept of a common-law marriage, which grants similar rights to married couples without a marriage license if certain conditions are met.
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Common law in other countries
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law and relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand. The two main legal systems used throughout the world are common law systems and civil law systems.
The United States operates under a dual system of both common and civil law. Every US state, except Louisiana, has a common law legal system. The US federal courts are divided into twelve regional circuits, each with a circuit court of appeals. Common law marriage, which grants similar rights to couples without a marriage license, is an example of common law in action.
Ghana follows the English common law tradition inherited from British colonisation. Ghana's laws are, for the most part, a modified version of imported law that is continuously adapting to the changing socio-economic and political realities of the country.
The Kingdom of the Netherlands adopted the French code civil in 1809. However, the Dutch colonies in the Cape of Good Hope and Sri Lanka (then Ceylon) were seized by the British, and Roman Dutch common law was developed by the courts. Roman Dutch common law relies on legal principles set out in Roman law sources and the writings of 17th-century Dutch jurists.
Islamic Sharia law is the most widely used religious law system and is considered one of the three most common legal systems in the world, alongside common and civil law. It is based on divine law derived from the Quran and Sunnah, and the rulings of ulema (jurists). Countries that govern by Sharia law include Saudi Arabia and Iran, though most countries use it to supplement national law.
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Common law and precedents
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 originated in England and was spread to the British colonies in Wales, Ireland, South Africa, and elsewhere. Many former colonies, including the United States, retain the common law system today, and approximately one-third of the world's population lives in common law jurisdictions.
Common law is deeply rooted in stare decisis, a Latin phrase that roughly translates to "'to stand by things decided'. In practice, stare decisis means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later. The decisions made by higher courts are typically binding on lower courts in the same jurisdiction. However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different. While rare, lower courts can also choose to overturn a precedent.
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 and analogies, and determining how the next court is likely to rule based on the decisions of higher courts or legislatures, which carry more weight. Finally, all the information is integrated to determine "what the law is".
The value of a common-law system is its adaptability to situations not contemplated by the legislature. Common law is more malleable than statutory law, as common law courts can reinterpret and revise the law without legislative intervention to adapt to new trends.
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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 also known as case law and relies on detailed records of similar situations and statutes.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It has clear rules for how judges need to rule for specific disputes. Common law systems, on the other hand, are less prescriptive and provide more freedom of contract.
Many countries follow common law systems, especially those that were former British colonies or protectorates, including the United States. Countries that follow civil law include those that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates.
