Cecily Zamora
Common law, also known as case law, is deeply rooted in the Latin phrase stare decisis, which means to stand by things decided. It is a legal system that originated in England during the Middle Ages, specifically after the Norman Conquest in 1066. Common law was established in the King's Court (Curia Regis), a single royal court set up for most of the country near London. This legal system, which is based on judicial decisions and precedent, gradually replaced local folk and manorial courts, creating a unified system. Over time, common law spread beyond England, influencing the legal systems of Wales, Ireland, the British colonies, and later, the United States and other former colonies.
| Characteristics | Values |
|---|---|
| Origin | Common law originated in England in the early Middle Ages, in the King's Court (Curia Regis). |
| Common law was also influenced by the practices of the English kings' courts in the centuries following the Norman Conquest in 1066. | |
| Common law was adopted by the newly formed United States after the American Revolution. | |
| Common law was spread to Wales, Ireland, and overseas colonies by England, and later by the British Empire. | |
| Definition | Common law is "the body of law derived from judicial decisions, rather than from statutes or constitutions." |
| Common law is also known as "case law" or ratio decidendi, serving as binding precedent. | |
| Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. | |
| Common law is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. | |
| Common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system. | |
| Common law allows for some freedom of interpretation, which can be adapted to situations not contemplated at the time by the legislature. | |
| Complexity | Common law systems are considerably more complicated than simplified descriptions suggest, with interactions between constitutional law, statutory law, and regulatory law giving rise to complexity. |
| Common law decisions are binding only in specific jurisdictions, and even within a jurisdiction, some courts have more power than others. | |
| Determining "what the law is" in a common law jurisdiction requires several stages of research and analysis, including ascertaining facts, locating relevant statutes and cases, extracting principles and analogies, and integrating all information to determine the ruling. | |
| Common law precedents can be modified or deviated from by lower courts if they are outdated or substantially different from the current case. | |
| Common law has historically led to the unfair marginalization or disempowerment of certain groups, and past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. |
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What You'll Learn
The influence of Norman Conquest and Anglo-Saxon customs
The roots of common law can be traced back to the Middle Ages in England, specifically after the Norman Conquest in 1066. The Norman Conquest marked a significant turning point in the legal history of England, leading to widespread changes in the political, economic, social, and legal landscape of the country.
Prior to the Norman Conquest, England followed Anglo-Saxon law, which had been in place since the 5th century AD. The Anglo-Saxon legal system was influenced by Germanic law and was relatively free of Roman influence, which was only exerted indirectly through the church. Local customs and the church played a significant role in governing society. Crimes were often treated as wrongs, and compensation was made to the victim. The preservation of peace was an important aspect of Anglo-Saxon law, and the king's legislation formalised regulations to protect individuals.
The Norman Conquest brought about a period of colonial rule and significant legal changes. Land was allocated to the king's feudal vassals, and serious wrongs were regarded as public crimes punishable by death and forfeiture of property. The Norman Court of Curia Regis assumed wide judicial powers, centralising the administration of justice. The influence of Roman law, as embodied in Frankish law, also increased during this period. However, the Anglo-Norman system was already sophisticated, and Norman customs were not simply transplanted but rather evolved based on local conditions.
Elements of the Anglo-Saxon system survived the Norman Conquest, including the jury, ordeals or trials by combat, the practice of outlawry, and writs. The consistent development of common law was promoted by the early dominant position of royal courts, which established precedents that later courts followed, known as stare decisis or "to stand by things decided".
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The role of stare decisis and judicial precedent
Common law is deeply rooted in the doctrine of stare decisis, a Latin term that means "to stand by things decided" or "let the decision stand". Stare decisis holds that courts and judges should adhere to precedent in making their decisions, following previous rulings and opinions from prior cases. This doctrine establishes a strong presumption that judges will follow prior precedents to promote legal stability and consistency in the development of legal principles. It also fosters reliance on judicial decisions and contributes to the integrity of the judicial process.
The weight given to judicial precedent can vary depending on the jurisdiction and the specific court system. In most common law jurisdictions, decisions by higher courts, such as a supreme court, are typically binding on lower courts within the same jurisdiction. On the other hand, decisions of lower courts may only have persuasive authority, meaning they are not binding but can be considered as guidance.
Stare decisis also operates both horizontally and vertically. Vertical stare decisis refers to the idea that the decisions of higher courts take precedence over the decisions of lower courts, while horizontal stare decisis holds that prior decisions made by courts at the same appellate level should provide precedent for future cases at that level.
While stare decisis is a fundamental concept in common law, it is not without its limitations. Judges are not bound by precedent if following it would lead to unjust outcomes. In such cases, judges may offer reasons or legal nuances to deviate from or overturn prior rulings. Additionally, in a "case of first impression" with no precedent or clear legislative guidance, judges have the power to establish new precedent.
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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 in the US and its states
Common law is a "'body of law'" based on court decisions rather than codes or statutes. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law systems rely on caselaw and legal precedent to guide their decisions.
In the US, common law was inherited from English common law, which was in force in British America at the time of the American Revolutionary War. All US states, except Louisiana, have enacted "reception statutes" which generally state that English common law is the law of the state unless it conflicts with domestic law. Louisiana's criminal law is based on English common law, but its private law is based on principles of law from continental Europe, with some common law influences. Louisiana's administrative law is similar to that of the US federal government and other US states.
In the US, common law exists at both the federal and state levels. At the federal level, there is a limited body of federal common law, which consists of rules created and applied by federal courts in the absence of any controlling federal statute. At the state level, common law is more prominent, with state legislatures often codifying common law rules from the courts of their state.
The decisions of a court in a common law system are only binding in a particular jurisdiction, and even within a jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, but decisions of lower courts are only non-binding persuasive authority.
Common law in the US has evolved and diverged from its English ancestor, incorporating civil law innovations and reflecting policy judgments drawn from economics, the social sciences, and business.
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The impact of ecclesiastical laws and courts
Common law systems, which originated in England during the Middle Ages, are legal systems that give significant weight to judicial precedent and the style of reasoning inherited from the English legal system. The common law, so named because it was common to all the king's courts across England, established a unified legal system, gradually replacing local folk courts and manorial courts.
Ecclesiastical law is a body of law derived from canon and civil law and is administered by ecclesiastical courts. Canon law is a set of ordinances and regulations made by ecclesiastical authorities (church leadership) for the governance of a Christian organisation or church and its members. Ecclesiastical law governs the doctrine of a specific church, usually Anglican canon law. Ecclesiastical courts were established to hear matters concerning religion, but their duties and work extended beyond controlling the clergy and doctrines of the Church. Before the Reformation, these courts had significant jurisdiction over matrimonial causes and testate and intestate succession, and their influence continued until the mid-19th century.
The jurisdiction exercised by ecclesiastical courts played a significant role in the development of the English legal system. The canon and civil laws administered by these courts were considered part of the law of England, and their decisions were cited as precedents in common law courts. The influence of common law and its practitioners also contributed to the decline of ecclesiastical courts.
Some common lawyers advocated for the abolition of ecclesiastical courts, which would have required the fusion of common and canon law, a complex task. As a result, the two jurisdictions existed side by side, with common law gaining prominence. The Ecclesiastical Jurisdiction Measure 1963 established the current judicial hierarchy for the provinces of Canterbury and York of the Church of England, with appeals heard by the Court for Ecclesiastical Causes Reserved and, in some cases, the Judicial Committee of the Privy Council.
In conclusion, ecclesiastical laws and courts have had a notable impact on the development of the English legal system, influencing the common law and coexisting within its framework. The decline of ecclesiastical courts and the increasing influence of common law practitioners contributed to the shifting legal landscape.
The Evolution of Traditional Common Law
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The evolution of common law in former colonies
Common law, which originated in England during the Middle Ages, is a "body of law" that is based on court decisions and precedents, rather than statutes or constitutions. It is deeply rooted in the Latin principle of stare decisis, which means "to stand by things decided".
Many former colonies, including the United States, Canada, India, and Australia, continue to retain the common law system today. The British Empire spread the English legal system to its colonies, and this transplantation conferred upon these societies the institutional tools necessary for strong development outcomes. However, the actual outcomes in former colonies have varied, and it is important to examine the dynamics of the colonial institutional environment to understand these differences.
The colonial experiences of eight formerly British-controlled territories—Barbados, Jamaica, Botswana, Nigeria, Kenya, India, Burma, and Singapore—demonstrate the impact of colonial processes and policies on their contemporary rule of law outcomes. One significant factor was the degree of representation of the indigenous population in legislative bodies. Another was the extent to which indigenous and British common law courts and values were integrated, leading to the development of localized common law jurisprudence.
In practice, common law systems are quite complex. While court decisions are binding within a particular jurisdiction, the decisions of higher courts carry more weight, and some courts have more power than others. Common law also interacts with other legal systems, such as constitutional law, statutory law, and regulatory law, adding to the complexity.
Despite these complexities, common law provides a stable foundation for legal systems in many former colonies, influencing the way they resolve legal disputes and make judicial decisions.
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Frequently asked questions
Common law is a "'body of law' based on court decisions and judicial precedent rather than codes or statutes.
Common law originated in England during the Middle Ages, in the King's Court (Curia Regis). It was spread across the British Isles and to colonies of the British Empire.
A key principle of common law is stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous decisions. Common law also allows for freedom of interpretation, which is valuable as the law can be adapted to situations that were not contemplated at the time.
