Keith Mack
Common law is a legal framework that is used in several countries around the world. It is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law, also known as case law, relies on detailed records of similar situations and statutes, as there is no official legal code that can be applied to a specific case. The principle of stare decisis, or precedent, is central to common law, as it requires judges to follow the decisions and rulings made by previous judges in similar cases. This ensures consistency and fairness in legal rulings. Common law is adaptable and flexible, allowing the law to be modified to address new concerns and circumstances. It is influenced by cultural norms and values and can be adjusted to reflect societal changes.
| Characteristics | Values |
|---|---|
| Emphasis on precedent | Precedent, known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases |
| Flexibility | Common law gives some latitude for interpretation |
| Adaptability | Common law can be adapted to situations that were not contemplated at the time by the legislature |
| Consistency | Common law ensures consistency in legal rulings by adhering to established case law |
| Stability | Common law promotes stability in the legal justice system |
| Influence | Common law shapes legal systems and influences judicial decisions globally |
| Binding decisions | Decisions of higher courts are binding on lower courts in the same jurisdiction |
| Country-specific | Common law is present in several countries, including the United States, United Kingdom, Canada, Australia, and India |
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What You'll Learn
Common law vs civil law
Common law, also known as case law, relies on detailed records of similar situations and statutes. It is a system of law that originated in medieval England and is now found in countries such as the United States, which were formerly British colonies or protectorates. Common law is based on the notion of stare decisis, or precedent, where a judge is bound to follow the decision of an earlier judge in similar cases. This means that past decisions shape future rulings until societal changes prompt a judicial body to overturn the precedent. Common law is more malleable than statutory law and allows for freedom of interpretation.
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 and Germany's Bürgerliches Gesetzbuch. Civil law is the most common legal system in the world, practiced in about 150 countries. It is generally more prescriptive than common law and relies on legal codes as the primary source of law. Civil law also clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, the facts of the case must be ascertained. Then, relevant statutes and cases must be located, and the principles, analogies, and statements by various courts must be extracted. The courts with more authority or higher up in the hierarchy carry more weight than lower courts. Finally, all the information is integrated, and the law is applied to the facts.
While common law is based on stare decisis, or precedent, civil law is more focused on written decisions and gives less weight to judicial precedent. Civil law judges are not bound by the general principles of law and can interpret and apply the law as they see fit within the framework of the legal codes. This allows for more flexibility and adaptability in the legal system.
In conclusion, common law and civil law are two distinct legal systems with different approaches to law-making and application. Common law is based on stare decisis and places great weight on precedent, while civil law relies on legal codes and gives less weight to judicial precedent. Common law is more malleable and allows for freedom of interpretation, while civil law is more prescriptive and clearly defines the parameters of the law.
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The role of precedent
Precedent, also known as stare decisis, is a crucial principle in common law systems. Stare decisis is a Latin phrase that roughly translates to "to stand by things decided". In practice, this means that judges are bound to follow the decisions and rulings of previous similar cases, or case law, when interpreting the law and applying it to new instances. This ensures consistency and fairness in legal rulings.
In common law systems, the decisions of higher courts are typically binding on lower courts within the same jurisdiction. For example, the decisions of a jurisdiction's supreme court are generally binding on lower courts within that jurisdiction. However, lower courts may modify or deviate from precedents if they are outdated or if the current case differs substantially from the precedent case. While it is rare, lower courts can also overturn precedents.
The principle of stare decisis allows for the law to be modified over time to reflect shifts in cultural norms and values. This adaptability is a key advantage of common law systems, allowing the law to address circumstances that the legislature may not have previously considered. However, this also means that past decisions, whether outdated or biased, can continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This dynamic can create challenges for marginalised groups seeking favourable rulings until popular thought or civil legislation changes the interpretation of the common law.
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Common law in the US
Common law, also known as case law, is a legal framework in which rulings from courts set precedents that direct similar matters that come before them. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is a system that promotes stability and consistency in the U.S. legal justice system.
Common law differs from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that clearly outlines everything from the procedures for handling claims to the punishment for offences. Civil law systems have clear rules for how judges need to rule for specific disputes. Common law, on the other hand, is more malleable and adaptable to changing circumstances and new concerns.
In the U.S., common law originates from medieval England, and it is still very much in effect today. Every U.S. state, with the exception of Louisiana, has a common law legal system. The U.S. federal courts relied on private publishers for law reports until after the Civil War, only beginning to publish as a government function in 1874. West Publishing in Minnesota is the largest private-sector publisher of law reports in the country.
While common law is not common among U.S. states, several of them have statutes or allow for common law marriage if certain requirements are met. Common law marriage grants couples who are not legally married the same rights as those who possess a marriage license. However, a number of states, including Alabama, have recently abolished the statutes allowing for common law marriage.
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Common law in other countries
Common law, also known as case law, is a system of law that places emphasis on precedent while allowing some freedom for interpretation. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is often contrasted with Roman-derived civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law is regularly updated, and its goal is to create order and reduce bias.
Common law is one of the four major legal traditions, alongside civil law, customary law, and religious law. It is the most widespread legal tradition in the world, employed by the greatest number of people compared to any single civil law system. It is used in many countries alongside civil law, including the US and the UK, which operate under a dual system.
The US federal courts relied on private publishers for law reports until after the Civil War. West Publishing in Minnesota is the largest private-sector publisher of law reports in the US. Many US states have statutes that allow for common-law marriage, although some states, such as Alabama, have recently abolished these statutes.
Outside of the US, common law is used in other English-speaking countries, including the UK. In addition, Islamic law, or Sharia law, is one of the three most common legal systems in the world, alongside common and civil law. It is used in several countries, including Saudi Arabia and Iran, although most countries use it only as a supplement to national law.
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Common law and marriage
Common law, also known as case 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. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. Common law places an emphasis on precedent while allowing some freedom for interpretation.
Common-law marriage, also known as a non-ceremonial marriage, is a legal framework that may allow couples to be considered married without having to go through a statutorily defined process. Common-law marriage is a marriage that takes legal effect without the prerequisites of a marriage license or participation in a marriage ceremony. The marriage occurs when two people who are legally capable of being married, and who intend to be married, live together as a married couple and hold themselves out to the world as a married couple. The original concept of a "common-law" marriage is one considered valid by both partners but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service.
The concept of common-law marriage, which acknowledges similar rights as those that have a marriage license to couples that are not officially married if several conditions are met, is one example of common law in action today. Hundreds of years ago, judges decided that if people cohabited and called themselves married, they should be legally treated as being married. The usual idea of common-law marriage is to protect people who are effectively married in all but name.
Not all jurisdictions permit common-law marriage, but they will typically respect the validity of such a marriage lawfully entered in another state or country. 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. In the United States, a number of states have statutes or allow for common-law marriage if they meet certain requirements. A number of states, including Alabama, recently abolished the statutes allowing for common-law marriage.
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Frequently asked questions
Common law is a legal framework in which rulings from courts set precedents that direct matters that come before them. It differs from civil law systems, which are based on codified legislation, and it has its origins in England.
The main principle of common law is stare decisis, a Latin phrase that means "to stand by things decided". This means that courts and judges need to follow previous rulings when dealing with similar cases.
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 locate any relevant statutes and cases, then extract the principles, analogies and statements by various courts. More recent decisions, and decisions of higher courts, 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", then applies that law to the facts.
Common law gives judges some freedom to interpret the law and apply it to new instances, establishing a framework for the law that is both consistent and flexible. Common law is adaptable to changing circumstances and new concerns, allowing the law to stay effective and relevant.
