Cameron Miranda
Common law, also known as case law, is a legal system where the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. Common law originated in England following the Norman Conquest of 1066 and spread throughout the world as England built its empire. Today, common law is used almost exclusively by countries that were once British colonies, including the United States, Canada, India, Ghana, and various other countries. Many countries have mixed legal systems, combining common law with other forms of law, such as civil, religious, or customary law.
| Characteristics | Values |
|---|---|
| Countries with common law traditions | United States, Canada, Australia, India, Ghana, Kenya, Nigeria, South Africa, United Kingdom, and more |
| Sources of law | Decisions in cases by judges, also known as case law |
| Legislature | Passes new laws and statutes |
| Judicial decisions | Binding and can generally only be overturned by the same court or through legislation |
| Judicial review | In some countries, the supreme court has the power of judicial review to strike down laws |
| Contracts | Extensive freedom of contract with few provisions implied into the contract by law |
| Business bankruptcy | Emphasis on reorganization rather than liquidation |
| Hybrid systems | Some countries have hybrid legal systems, combining common law with civil law or other traditions |
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What You'll Learn
Common law in former British colonies
Common law, alongside civil law, is one of the two main types of legal systems in the world. It is a system of law whose sources are the decisions in cases by judges. Common law developed in England, influenced by Anglo-Saxon law and the Norman conquest of England, which introduced legal concepts from Norman law. The roots of common law can be traced to the Middle Ages in England, when King Henry II looked to adjudicators, rather than written codes, to make law in newly Norman Britain. This system was called "common" because it was meant to be held in common for all of Britain, rather than particular to certain regions, like the codes that preceded it.
Many countries that were former British colonies or protectorates follow the common law system, including the United States, Canada, Australia, India, Ghana, Kenya, Nigeria, and South Africa. While each of these nations has modified specific legal structures and practices, and many have unique historical nuances, there are general trends within common law nations. For example, in common law jurisdictions, such as England and the US, the emphasis when a business gets into financial trouble is on seeking a reorganization rather than a liquidation to keep the business as a going concern.
In some common-law countries, particularly the USA and countries following its model, the supreme court possesses the power of judicial review to strike down legislation. In contrast, in civil law countries, the supreme judicial power is often divided into three or more distinct institutions, each with a specialized jurisdiction. For example, in France, the Court of Cassation is forbidden from exercising judicial review or challenging legislative or administrative acts.
It has become increasingly common for civil-law systems to adopt traditional features of common-law systems, and vice versa. For example, civil-law countries are beginning to accord judicial decisions precedential authority, and codification is a feature of most common-law systems. As more cases are tried in international tribunals, both civil and common-law procedures may be incorporated into a single proceeding.
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Common law in the US
Common law is law that is derived from judicial decisions instead of from statutes. The roots of common law can be traced back to the Middle Ages in England, when King Henry II preferred adjudicators over written codes to make laws in Norman Britain. This system was called "common" because it was meant to be held in common for all of Britain, instead of being specific to certain regions.
The US is one of the many countries that bases its legal system on common law traditions. The American courts originally fashioned common law rules based on English common law. However, it is important to note that none of the common law systems in the US are purely common law systems. The US and its common law states have numerous codified statutes that courts must consider. Nevertheless, one constant feature of US common law legal systems is the principle of stare decisis. This means that even when interpreting a statute, prior court decisions on that statute are considered precedent and are therefore binding.
At the state level, legislatures often codify common law rules from the courts of their state. They may do this to give the rule permanence through a statute, to modify it, or to replace it entirely with legislation. For example, in 2018, the California Supreme Court issued a decision that articulated a three-part test for determining whether California workers were independent contractors or employees. The California Legislature responded by creating a new section of the Labor Code, which codified and expanded on the holding, and went into effect in 2020.
While common law systems rely on caselaw and legal precedent to guide their decisions, civil law systems primarily rely on codes and statutes. Civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that outline procedures for handling claims and punishments for offences. The civil law tradition is followed by most of Europe, Central and South America, the Middle East, Asia, and some African countries.
Some countries, such as South Africa and Quebec, have hybrid legal systems that incorporate both common and civil law components. It has become increasingly common for civil-law systems to adopt features of common-law systems, and vice versa.
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Common law in Canada
Common law, which is law that is not written down as legislation, is one of the four major legal traditions that contemporary national legal systems are based on. It evolved into a system of rules based on precedent and is found in the United Kingdom and its former colonies, including Canada.
Canada's legal system is based on a combination of common law and civil law. After the Battle of Quebec in 1759, the country fell under English common law, except for Quebec, which follows civil law based on the French Code Napoléon (Napoleonic Code). The rest of Canada uses the common law system.
In Canada, common law status typically refers to a person living with someone who they are not legally married to but are in a conjugal relationship with. Common law relationships are recognised in certain situations, and what constitutes common law status can vary depending on the context. For example, it differs when it comes to taxes, immigration, or estate planning. For federal tax purposes, 'living common-law' refers to couples who have either been living together for 12 continuous months or who share a child by birth or adoption. The 12-month timeline also applies in the context of immigration.
Since family law falls under provincial law, the definition of common law in most other contexts is up to each individual province. Most provinces recognise common-law relationships after 1 to 3 years of continuous cohabitation or if the couple has a child together. In Quebec, common-law relationships are often referred to as de facto unions, and for tax purposes, a couple is considered common law after living together continuously for at least two years.
In the context of intestate succession, common law spouses are generally not treated the same as legally married spouses in Canada, except in certain provinces such as BC, Manitoba, Saskatchewan, and the Northwest Territories. Common law partners may not automatically inherit and may need to file a claim to the estate, which may or may not be approved, depending on the unique circumstances and the judge's discretion.
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Common law in India
Common law, which is based on the decisions in cases by judges, is one of the four major legal traditions that contemporary national legal systems are based on. The other three are civil law, customary law, and religious law. The common law system is found in the United Kingdom and its former colonies, including India.
India is considered a common-law country, but it also has traces of civil law in its legal system. India's Constitution is codified and written, and it is the supreme governing law in the country. The country's legal system is influenced by its unique history and has individual variations. For example, India has different personal laws for different communities based on their religion, faith, and beliefs. These laws govern matters such as marriage, divorce, inheritance, and adoption.
Since gaining independence, there has been a push for a Uniform Civil Code (UCC) or a single personal law for all citizens, regardless of religion, sex, gender, and sexual orientation. However, the idea of a UCC has been resisted by both the country's Hindu majority and the Muslim minority. The complexity of unifying personal laws in a diverse country like India is a significant challenge.
India's legal system also reflects a combination of common law and civil law principles in contract law. While the primary law governing a contract is mentioned in the contract itself (a component of common law), the Indian Contract Act requires overall compliance (a characteristic of civil law).
Examples of Common Law Traditions in Other Countries
In addition to India, several other countries have legal systems based on common law traditions, including:
- United States
- Canada
- Australia
- Ghana
- Kenya
- Nigeria
- South Africa
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Common law in England
Common law, also known as case law or judge-made law, is a legal system that originated in England and is now used in many countries that were formerly British colonies. It is a system of law whose sources are the decisions in cases by judges, as opposed to statutes or legislative enactments, which are considered the primary source of law in civil law systems. Common law in England has a long history that can be traced back to the Middle Ages.
History of Common Law in England
The roots of common law in England can be traced back to the 11th century and the Norman Conquest of England in 1066, which introduced legal concepts and institutions from Norman law, which in turn had its origins in Salic law. This marked the replacement of Anglo-Saxon law with the Anglo-Norman legal system, which would become the foundation of English common law. The influence of Roman law, which had been studied in England since the 12th century, can also be seen in the early treatises on English law, such as Ranulf Glanvil's Tractatus de Legibus et Consuetudinibus Regni Angliae (Treatise on the Laws and Customs of the Kingdom of England), written between 1187 and 1189.
During the Late Medieval Period, English common law was further developed and codified through judge-made laws and precedents created in the proceedings of Royal justices in the Circuit courts. This body of legal scholarship, which included the work of Coke (17th century) and Blackstone (18th century), was first published in the 19th century as The History of English Law before the Time of Edward I. The law developed in England's Court of Common Pleas and other common law courts, which then became the law of the colonies settled under the Crown of England and later the United Kingdom.
Common Law Today
Today, common law in England comprises mainly criminal law and civil law, each branch having its own courts and procedures. The judiciary is independent, and principles such as fairness, equality before the law, and the right to a fair trial are foundational to the system. While statutory legislation, including Acts of Parliament and regulations, is considered the most authoritative law, common law serves as a residual source of law in the absence of any statutory law. This common law is based on stare decisis, or judicial decisions, custom, and usage.
In summary, common law in England has a rich history that has shaped the legal systems of many countries around the world. While England's legal system has evolved over the centuries, common law continues to play a significant role in ensuring fairness and equality before the law.
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