Kara Sears
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. It is deeply rooted in stare decisis, a Latin phrase that roughly means to stand by things decided. In practice, this means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later. Common law is used in several countries today, including the United States, which originally based its common law rules on English common law.
| Characteristics | Values |
|---|---|
| Basis | Case law, or casuistry/case-based reasoning |
| Judicial precedent, or stare decisis ("to stand by things decided") | |
| Court rulings, or judge-made law | |
| Institutionalised opinions and interpretations from judicial authorities and public juries | |
| Consistency and stability | |
| Adaptability to unforeseen circumstances | |
| Efficiency | |
| History | Originated in the King's Court (Curia Regis) in medieval England |
| Developed from the practices of the courts of English kings following the Norman Conquest | |
| Influenced by Roman law, canon law, and Norman custom | |
| The doctrine of precedent developed in the 12th and 13th centuries | |
| Historical sources include plea rolls and Year Books from the Middle Ages | |
| Geographic influence | Influenced the legal systems of the United States, the United Kingdom, and most Commonwealth countries |
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What You'll Learn
Common law is based on previous case law, or stare decisis
Common law is a body of unwritten laws based on previous case law or stare decisis, a Latin term that means "to stand by things decided". It is a system of law that relies on judicial decisions and precedents to guide future rulings. This means that judges in common law systems refer to past similar cases and rulings when deciding on new cases. The doctrine of precedent developed during the 12th and 13th centuries, emerging from tradition, custom, and precedent.
Common law is deeply rooted in the principle of stare decisis, which ensures consistency and stability in the legal system. It promotes efficiency by providing a framework for judges to follow when making decisions, saving time and resources. This system of law is adaptable and can address unforeseen situations not covered by existing statutes. The presiding judge determines which precedents to apply when deciding on a new case.
In common law systems, the decisions of higher courts are typically binding on lower courts. For example, a supreme court's ruling on a specific issue will generally be followed by lower courts within the same jurisdiction when faced with similar cases. This hierarchical structure ensures uniformity and predictability in legal outcomes.
However, lower courts may deviate from precedents if they are outdated or if the current case significantly differs from previous cases. This flexibility allows common law to evolve and adapt to changing circumstances and societal values. Common law systems provide judges with some interpretative freedom, allowing them to consider the unique circumstances of each case.
Common law originated in medieval England and has since spread to various parts of the world, including the United States and Commonwealth countries. It is one of the two main legal systems in use today, alongside civil law. Civil law, in contrast to common law, relies primarily on comprehensive codes and statutes enacted by legislators.
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Common law is unwritten, relying on precedent and interpretation
Common law, also known as case 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". In other words, common law relies on the principle that courts and judges should follow previous rulings, or caselaw, when dealing with similar cases in the future. This promotes stability and consistency in the legal system, as it ensures that similar cases are decided in a similar manner, regardless of subjective, personal viewpoints.
While common law is unwritten in the sense that there is no official legal code, it draws from institutionalized opinions and interpretations from judicial authorities and public juries. This means that common law is adaptable and can address unforeseen situations not originally contemplated by lawmakers. For example, in a ""case of first impression" with no clear legislative guidance, judges are empowered to resolve the issue and establish new precedents.
The form of reasoning used in common law is known as casuistry or case-based reasoning. It involves evaluating future cases based on detailed records of similar situations and statutes. The presiding judge determines which precedents to apply in each new case, allowing for some freedom of interpretation. This is in contrast to civil law systems, which rely primarily on codes and statutes created by legislators.
The doctrine of precedent in common law developed during the 12th and 13th centuries, emerging from tradition, custom, and precedent. It has evolved over time, with the legal systems of many countries, particularly those in the United States and the Commonwealth, being influenced by or based on common law. Today, the US operates under a dual system of both common and civil law, showcasing the ongoing relevance of common law principles.
In summary, common law is unwritten in the sense that it is not codified in a formal legal code. Instead, it relies on precedent and interpretation, with judges using past rulings as a guide when deciding similar future cases. This allows for adaptability and consistency in the legal system, ensuring that the law can be applied to a wide range of situations.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Common law is adaptable to unforeseen situations
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the principle of stare decisis, a Latin phrase that means "to stand by things decided". This means that common law relies on previous rulings, or caselaw, to guide future decisions. This promotes stability and consistency in the legal system, as outcomes are based on previous caselaw rather than subjective viewpoints.
While common law systems provide stability, they also offer adaptability to unforeseen situations. When lawmakers create statutes and rules, they cannot predict all the situations in which courts may need to apply the laws. Common law systems allow courts to address these situations by empowering judges to resolve issues and establish new precedents in "cases of first impression" with no clear legislative guidance. This flexibility enables the law to be adapted to situations not contemplated by the legislature at the time the original statutes were created.
For example, in the case of Li v. Yellow Cab Co. (13 Cal.3d 804 (1975)), the California Supreme Court adopted the principle of comparative negligence, establishing a new precedent in California law. This demonstrates how common law allows for the evolution of legal interpretations and the creation of new precedents to address unforeseen situations.
The adaptability of common law is particularly relevant in today's rapidly changing world, where new technologies and social dynamics can give rise to novel legal challenges. By relying on judicial precedent and interpretation, common law provides a flexible framework that can accommodate unforeseen situations and ensure that justice is served even in unprecedented cases.
In conclusion, common law is adaptable to unforeseen situations through its reliance on judicial precedent, interpretation, and the establishment of new precedents. This adaptability ensures that the law can keep pace with societal changes and address novel legal challenges that may arise.
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Common law is rooted in medieval English law
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the medieval English law of the Middle Ages, specifically in the practices of the English king's courts. The doctrine of precedent developed during the 12th and 13th centuries, as collective judicial decisions were based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning.
The main historical sources of common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls were the official court records for the Courts of Common Pleas and King's Bench, written in Latin and deposited in the UK National Archives. The rolls, made up of bundles by law term (Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn), can be viewed online at the Anglo-American Legal Tradition site, offering insight into the early development of common law.
Common law, also known as case law or judge-made law, draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is a flexible system that allows for adaptability to unforeseen situations, as judges are empowered to establish new precedents in "cases of first impression" with no clear legislative guidance. This distinguishes common law from civil law, which relies primarily on codes and statutes.
The United States, with the exception of Louisiana, and many Commonwealth countries have legal systems rooted in English common law. The influence of common law can be traced back to the early English Middle Ages, specifically to the King's Court (Curia Regis) in Westminster, near London. While the United States and the United Kingdom now operate under a dual system of both common and civil law, common law remains a significant legal framework with ongoing relevance in the present day.
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Common law is distinct from civil law
Civil law, on the other hand, is a comprehensive, codified set of legal statutes that clearly outline the procedures for handling claims and the punishment for offences. Civil law systems provide clear rules for judges to follow when ruling on specific disputes. While civil law is regularly updated, the goal of standardized codes is to create order and reduce bias in the legal system.
Another key difference is that common law promotes stability and consistency because everyone involved knows that the outcome will be based on previous case law rather than subjective viewpoints. Common law also allows for adaptability to unforeseen situations as it is not limited to legislated statutes. In contrast, civil law systems may struggle to address situations that were not contemplated by legislators when creating the codes.
Furthermore, common law systems are known for their efficiency as judges only need to follow precedent when making decisions, which can save time and resources. However, lower courts in common law systems can choose to deviate from precedents if they are outdated or if the current case is substantially different. This allows for some flexibility in the application of case law.
Lastly, while common law systems are prevalent in countries like the United States and those in the Commonwealth, civil law has its origins in mainland Europe. The United States, for example, operates under a dual system of both common and civil law, with all states except Louisiana using a common law legal system. Louisiana's civil code is based on principles of law from continental Europe, particularly Roman law transmitted through French and Spanish 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 also known as case law, judge-made law, or judicial precedent.
Common law is based on stare decisis, a Latin term meaning "to stand by things decided". In other words, common law is based on the principle that courts should follow previous rulings when dealing with similar cases.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It provides clear rules for judges to follow when ruling on specific disputes. Common law, on the other hand, is more flexible and allows for interpretation.
Common law promotes stability and consistency because everyone knows that the outcome will be based on previous rulings rather than subjective viewpoints. It also allows for adaptability to unforeseen situations not covered by existing statutes.
Common law originated in England and has been adopted by many countries, including the United States (except Louisiana) and most Commonwealth countries.
