Kara Sears
Common law, also known as case law or judge-made law, is a legal system that primarily relies on judicial decisions, precedents, and litigation initiated by adversaries. It is deeply rooted in stare decisis, which means to stand by things decided, where judges follow precedents from previous similar cases. Common law systems are less prescriptive than civil law systems, with fewer provisions implied into contracts, and greater emphasis on setting out all terms in the contract itself. Countries that follow common law systems include those that were former British colonies or protectorates, such as the United States, where each state except Louisiana adheres to common law.
| Characteristics | Values |
|---|---|
| Type of legal system | Common law is one of the two main types of legal systems in the world, the other being civil law. |
| Sources of law | Common law systems rely on caselaw and legal precedent to guide their decisions. |
| Judicial decisions | Judicial decisions are binding and can generally only be overturned by the same court or through legislation. |
| Freedom of contract | Common law systems have extensive freedom of contract, with few provisions implied into the contract by law. |
| Consistency | Common law promotes stability and consistency as decisions are based on previous caselaw rather than subjective viewpoints. |
| Efficiency | The precedent-based system of common law can lead to efficiency in the legal process. |
| Equity | Equity corrects common law defects and mitigates its harshness, providing remedies such as injunctions, specific performance, and rescission. |
| Country/region | Common law systems are typically found in countries that were former British colonies or protectorates, including the United States. |
| Codification | Common law systems are less prescriptive than civil law systems and do not rely on specific codes or statutes. |
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What You'll Learn
Common law is based on precedent
Common law is a legal system that is distinct from civil law, which is the other main type of legal system in the world. Countries that follow a common law system are typically former British colonies or protectorates, including the United States.
In a common law system, relevant case law is essential. When a court makes a particular decision based on a specific set of facts, that decision is considered binding in future cases with similar issues. The decisions of higher courts are typically binding on lower courts in the same jurisdiction. For example, in the jurisdictions of England and Wales, and of Northern Ireland, the Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts.
The principle of stare decisis is constant in common law systems, even when a court is interpreting a statute and not applying common law. This means that prior court decisions interpreting that same statute are precedent and therefore binding. This is in contrast to civil law systems, which are based on codes and statutes rather than precedent. Civil law systems have a written constitution based on specific codes that outline procedures and punishments.
Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous case law and not on subjective, personal viewpoints. However, a common law system may also uphold bad decisions for long periods, as precedents are to be followed by all other courts.
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Common law is less prescriptive than civil law
Common law is a legal system that is used in many countries around the world, particularly those that were formerly British colonies or protectorates, including the United States. It is based on the concept of stare decisis, which means that decisions of higher courts are generally binding for lower courts in the same jurisdiction. This creates a predictable and consistent body of law.
Common law is considered less prescriptive than civil law. Common law relies heavily on caselaw and legal precedent to guide decisions, whereas civil law systems rely primarily on codes and statutes. Civil law, which is followed in many former French, Dutch, German, Spanish, and Portuguese colonies, as well as in much of Central and South America, East Asia, and Central and Eastern Europe, is a codified system of law that originates from Roman law. It is generally more prescriptive, with many provisions implied into a contract by law and less freedom of contract.
In a common law system, judicial decisions are binding and can only be overturned by the same court or through legislation. There is extensive freedom of contract, with few provisions implied into the contract by law. This means that it is important to set out all the terms governing the relationship between the parties within the contract itself. Common law is also characterised by trial by jury and the doctrine of the supremacy of the law, meaning that acts of governmental agencies are subject to scrutiny in ordinary legal proceedings.
The process of finding relevant caselaw in a common law system can be time-consuming and arduous, often involving long hours of research. However, with modern legal technology, it has become easier to find cases that match the specific facts and legal issues of a particular situation. This efficiency is a benefit of the common law system, as it allows for more predictable outcomes based on previous caselaw rather than subjective viewpoints.
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Common law is judge-made
Common law is a legal system that relies on caselaw and legal precedent to guide decisions, rather than relying on a civil law system's focus on codes and statutes. It is a less prescriptive system, with fewer provisions implied in contracts and greater freedom of contract. This means that all terms governing the relationship between the parties to a contract must be explicitly set out in the contract itself.
Common law is often referred to as "judge-made" law, or case law. Judges decide cases based on precedents provided by past decisions, and courts are required to follow the decisions of higher-level courts within the same jurisdiction. This means that judicial decisions are binding, and can only be overturned by the same court or through legislation. Judges are the final arbiters of the law, and their interpretations of the constitution or federal statutes are stable only so long as they maintain the support of the majority of the court.
In common law systems, relevant caselaw is essential, and prior court decisions interpreting a statute are considered binding. This is a key difference from civil law systems, where a judge's decision is not binding in later cases involving different parties. Common law promotes stability and consistency because everyone knows that the outcome will be based on previous caselaw, rather than subjective viewpoints.
Common law is based on the principle of stare decisis, which means that earlier court rulings and decisions are critical to the court's resolution of a matter. This can be time-consuming and arduous, as it requires searching through countless case reporters and practice guides to find on-point caselaw. However, with modern legal technology, it is now easier than ever to find relevant cases that match the facts and legal issues at hand.
Common law has its origins in the customs and traditions of England before the Norman Conquest, when legal business took place in local folk courts, urban borough courts, merchant fairs, and manorial and seigniorial courts. After the Conquest, judges appointed by the king made decisions in his name, and it is believed that they based at least some of their rulings on common customs.
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Common law is stable and consistent
Common law is a legal system that is used in many countries, particularly former British colonies or protectorates, including the United States. It is characterised by its reliance on caselaw and legal precedent to guide judicial decisions, rather than codes and statutes as in civil law systems. This reliance on precedent is what gives common law its stability and consistency.
In common law systems, judicial decisions are generally binding, and earlier court rulings and decisions are often the first thing considered when approaching a new case. This means that the outcome of a case will be based on previous caselaw, rather than subjective, personal viewpoints, and everyone involved knows what to expect. This consistency is further supported by the principle of stare decisis, which means that courts follow the decisions of higher-level courts within the same jurisdiction. This creates a predictable, consistent body of law that is relatively stable over time.
The use of precedent in common law also allows for the development of new legal principles through incremental changes to existing caselaw, rather than through the creation of new statutes. This can provide a degree of flexibility and adaptability to the legal system, while still maintaining stability and consistency. Additionally, the use of precedent can lead to more efficient legal processes, as similar cases can be resolved in a similar manner, reducing the need for lengthy and costly litigation.
However, it is important to note that common law is not completely static. While judicial decisions are generally binding, they can be overturned by a higher court or through legislation. Additionally, in areas of new technology or significant social change, judges may be more likely to create new precedents or overturn existing ones to reflect the changing needs and values of society. Nonetheless, the inherent conservatism of the common law system, with its emphasis on stability and consistency, means that this process of change occurs gradually and predictably.
In conclusion, the common law system's reliance on precedent, stare decisis, and judicial decision-making results in a legal framework that is stable and consistent while still allowing for incremental change and adaptability. This balance between stability and flexibility is a key characteristic of common law systems and contributes to their enduring appeal in many countries around the world.
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Common law is used in former British colonies
Common law is a legal system that originated in England after the Norman Conquest in 1066. It established a unified legal system, gradually replacing local folk and manorial courts. Common law draws from earlier Anglo-Saxon traditions, such as the jury, ordeals, the penalty of outlawry, and writs. Over time, England spread its legal system to Wales, Ireland, and overseas colonies, which was continued by the later British Empire. As a result, many former British colonies, including the United States, retain the common law system today.
Common law is characterised by its reliance on judicial precedent and caselaw to guide decisions. This means that previous court rulings and interpretations are considered binding, promoting stability and consistency in the legal system. In contrast to civil law systems, common law places less emphasis on written constitutions and codes. While civil law systems have a comprehensive code of statutes outlining procedures and punishments, common law systems give judges more flexibility in interpreting the law based on past cases.
In the context of former British colonies, the adoption of common law has had a lasting impact on their legal frameworks. The transplantation of common law provided these colonies with institutional tools that are believed to have contributed to their subsequent development. However, the suitability of common law for newly independent colonies was questioned, as it faced challenges due to the lack of printed legal materials and widespread anti-British sentiment after the American Revolution.
To address the issue of limited legal resources, lawyers in Massachusetts donated their books to establish a law library in 1803. Additionally, the concept of reception statutes played a role in the adoption of common law in former colonies. Reception statutes consider pre-independence English common law and its precedents as the default law, providing an extensive and predictable legal framework for newly independent states.
Some examples of former British colonies that continue to use common law include Barbados, Jamaica, Botswana, Nigeria, and Kenya. These countries, along with other former colonies, contribute to approximately one-third of the world's population living in common law jurisdictions or mixed legal systems that integrate common law and civil law. The legacy of common law in these countries highlights the enduring influence of colonial legal transplantation and its impact on the institutional development of these nations.
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Frequently asked questions
A common law system is primarily characterised by its reliance on precedent—judicial rulings made in previous similar cases—rather than statutes. Common law systems are deeply rooted in stare decisis, which means "to stand by things decided". Other characteristics include:
- A heavy reliance on the judiciary as a source of law.
- An adversary system for settling disputes.
- Extensive freedom of contract, with few provisions implied by law.
Civil law systems are generally more prescriptive than common law systems and are based on legal codes and statute law. In civil law systems, legal decisions are not applicable in other instances, even when the circumstances are similar. Civil law systems also have a written constitution based on specific codes that enshrine basic rights and duties.
Common law systems are used in countries that were former British colonies or protectorates, including the United States (except Louisiana, which was a French colony and therefore uses a civil law system). Scotland also uses a common law system, which covers matters including murder and theft.
