Gavin Howe
Common law, also known as case law, is a body of unwritten laws based on legal precedents. It is derived from its original appearance in medieval England, and it is still in effect in the US and other countries today. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand. The sources of common law can be classified as primary and secondary sources. Primary sources are the actual law in the form of constitutions, court cases, statutes, and administrative rules and regulations. Secondary sources explain, critique, or discuss the law and help locate primary sources. The main sources for the history of common law in the Middle Ages were the plea rolls and the Year Books.
| Characteristics | Values |
|---|---|
| Sources | Plea rolls, Year Books, custom, precedent, tradition, casuistry, case-based reasoning, judge-made rules, court cases, legal writings, previous court decisions, legal principles, institutionalized opinions, interpretations from judicial authorities and public juries |
| Basis | Unwritten laws, legal precedents, records of similar situations and statutes |
| Application | Court rulings when outcome undetermined based on written rules of law |
| Comparison with Civil Law | Common law focuses on precedent and allows freedom for interpretation; civil law is a comprehensive, codified set of legal statutes created by legislators |
| Examples | The common law of England, US common law, Roman Dutch common law, Scots common law |
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What You'll Learn
Judicial decisions and precedent
In common law, judicial decisions are recorded in reports of decided cases, which serve as precedents for future cases. These reports outline the facts of the case, the legal issues involved, and the court's ruling. The principle of stare decisis, a Latin phrase meaning "to stand by things decided", is central to common law. Stare decisis dictates that courts and judges should follow previous decisions and rulings, or case law, when dealing with similar cases in the future. This ensures consistency and stability in the legal system.
The role of judges in common law is crucial. Judges presiding over cases determine which precedents are applicable to the specific case at hand. While higher court decisions are typically binding on lower courts, lower courts have some flexibility. They can modify, deviate from, or overturn precedents if they are outdated or if the current case significantly differs from the precedent. This allows for adaptability and interpretation within the legal framework.
Common law evolved from the English legal system in the Middle Ages, specifically in the King's Court (Curia Regis). Over time, it spread to other parts of the world, including the United States and Commonwealth countries, influencing their legal systems. Today, the US operates under a dual system of both common and civil law. While civil law provides clear rules for judges to follow, common law allows for interpretation and adaptability to changing circumstances. This distinction is particularly important as technology advances and new situations arise that were not contemplated by the legislature.
The sources of common law include primary and secondary sources. Primary sources are the actual law, including court cases and their rulings, also known as case law. Secondary sources help to understand and locate primary sources and include legal dictionaries, encyclopaedias, law reviews, and legal treatises. These sources contribute to the development and interpretation of common law, ensuring a consistent and adaptable legal framework.
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Roman law and Dutch jurists
Roman-Dutch law is a system of law that emerged from the fusion of early modern Dutch law, largely of Germanic origin, and Roman, or civil, law. It was in force in the Netherlands province of Holland from the 15th century until the early 19th century, when it was superseded by Napoleonic codal law. Roman-Dutch law was carried by Dutch colonists to the Cape of Good Hope, where it became the foundation of modern South African law. It also influenced the legal systems of other former Dutch colonies, such as Guyana, Indonesia, Sri Lanka, and Suriname, as well as the American state of New York.
The development of Roman-Dutch law can be traced back to the 15th century when the Netherlands was associated with the Holy Roman Empire. Italian lawyers (mos italicus) were among the first to contribute to the new Byzantine-based jurisprudence, but it was the French humanistic doctrinal scholars (mos gallicus) in the 16th century who had the most influence. In the 17th and 18th centuries, Dutch jurists became the most influential, merging Roman law with legal concepts from traditional Dutch feudal customary law, particularly from the province of Holland. This hybrid system became known as Roman-Dutch law.
The most renowned Dutch jurist, Hugo Grotius, began his legal studies at Leiden at the age of eleven. While imprisoned for his involvement in a theological and political dispute, Grotius penned the Inleyding, or Introduction to the Jurisprudence of Holland, which was published in 1631. In his work, Grotius treated Dutch law as a distinct system, incorporating both customary law and Roman law. Following the structure of the Institutes, he divided Dutch law into the categories of persons, things, and obligations.
Another significant contributor to Roman-Dutch law was Ulrik Huber (1636-1694), the most famous jurist of the northern province of Friesland. Together with the jurist Johannes van den Sande, Huber represented a Roman-Frisian legal tradition known for its strict adherence to Roman law. Huber's work, Heedensdaegse rechtsgeleertheyt, reflects this commitment: "We adhere to the rule that, save in so far as the position is clearly otherwise under Frisian law, it remains as prescribed by the laws of Rome."
The influence of Roman-Dutch law can still be seen in the legal practices and principles of countries that were once part of the Dutch colonial empire or influenced by former Dutch colonies. In South Africa, for example, modern law is a blend of Roman-Dutch and English law. While constitutional and administrative law have adopted English approaches, criminal law combines elements from both Roman-Dutch and English common-law sources. Similarly, the law of persons, property, contract, and delict in South Africa are predominantly Roman-Dutch, with only mild influence from common law.
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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)
Medieval England
The English common law, which originated in medieval England, was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government.
In the early Middle Ages, the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London, served as the source of common law. The doctrine of precedent developed during the 12th and 13th centuries, as the 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 sources for the history of common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, the official court records for the Courts of Common Pleas and King's Bench, were written in Latin. The rolls were made up in bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn. The Year Books, first published in 1268, are known as the law reports of medieval England and are a principal source for knowledge of the developing legal doctrines, concepts, and methods from the 13th to the 16th centuries.
Judge-made common law operated as the primary source of law for several hundred years before Parliament acquired legislative powers to create statutory law. In England, judges devised rules for dealing with precedent decisions, and the early development of case law in the 13th century has been traced to Bracton's On the Laws and Customs of England.
The common law of medieval England has directly influenced the legal systems of the United States and most Commonwealth countries. US common law originates from medieval England, and while the US now operates under a dual system of common and civil law, it still very much follows the principles of common law.
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US common law
In the US, common law rules were originally fashioned based on English common law until the American legal system was able to create its own common law rules. US common law is not a pure common law system as there are many codified statutes that courts must consider. However, the principle of stare decisis remains constant in US common law legal systems, meaning that prior court decisions interpreting a statute are precedent and therefore binding. Restatements of various subject matter areas, edited by the American Law Institute, collect the common law for the area and are often cited by American courts and lawyers for propositions of uncodified common law.
At the state level, legislatures may subsequently codify common law rules from the courts of their state, either to give the rule the permanence afforded by a statute, to modify it, or to replace the outcome 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 on January 1, 2020.
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Primary and secondary sources
The sources of law are divided into two broad categories: primary sources and secondary sources. Primary sources are the actual laws or legal rules, while secondary sources provide commentary, analysis, and explanations of the laws.
Primary Sources
Primary sources include constitutions, court cases or opinions, statutes, and administrative rules and regulations. These sources establish the law and contain the first and most convincing evidence of the rules and principles of the law. They lay the groundwork for future legal debates, precedents, and conclusions.
In a common law system, the law is expressed in an evolving body of doctrine determined by judges in specific cases, rather than in a group of prescribed abstract principles. Common law is deeply rooted in stare decisis, which means that courts are bound to follow precedents established by previous decisions.
Secondary Sources
Secondary sources include legal dictionaries, encyclopaedias, digests, law reviews, journals, treatises, nutshells, hornbooks, deskbooks, manuals, and guides on how to practice law. These sources may restate the law, but they also provide commentary, analysis, description, explanation, or criticism. They are not binding and do not carry the force of law, but they are critical for understanding the context and interpretation of primary legal sources. They can also influence the creation and interpretation of the law.
Secondary sources are a great place to start legal research as they help locate primary sources of law, define legal words and phrases, and aid in legal research. They can assist in understanding complex legal concepts and provide valuable insights into the law's background, consequences, and intricacies.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents. It is also known as case law.
Sources of common law include previous court rulings and decisions, legal precedent, and stare decisis, a Latin phrase that means "to stand by things decided".
Examples of common law sources include plea rolls, Year Books, and Institutional Texts such as Craig's "Jus Feudale" (1655) and Stair's "The Institutions of the Law of Scotland" (1681).
Civil law is a comprehensive, codified set of legal statutes created by legislators, whereas common law relies on legal precedent and interpretation. Civil law is regularly updated, while common law may differ between jurisdictions.
Many countries use common law legal systems, including the United States, Ghana, and most Commonwealth countries.
