Keith Mack
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin term that means to stand by things decided. This means that judges are required to follow the rulings and decisions made in previous similar cases. Common law originated in the practices of the courts of English kings following the Norman Conquest in 1066 and is still used today in many countries, including the United States. It is often compared with civil law, which is a comprehensive, codified set of legal statutes created by legislators. While civil law provides clear rules for judges to follow in specific disputes, common law is more flexible and adaptable to changes in society as it does not require lawmakers to pass changes in statutes.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Other names | Judicial precedent, judge-made law, or case law |
| Sources of law | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
| Pros | Stability, consistency, efficiency, adaptability to the unforeseen, flexibility |
| Cons | Past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. |
| Common law countries | Common law countries include the United States, the United Kingdom, and other former British colonies or protectorates. |
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What You'll Learn
Common law is a body of unwritten laws
Common law originated in the practices of the courts of English kings following the Norman Conquest in 1066. It was considered the "unwritten law of the land, independent of statutory enactments". Common law was widely considered to derive its authority from ancient Anglo-Saxon customs and was defined as "unwritten law" (lex non scripta) in legal dictionaries until the 19th century.
The modern definition of common law is "case law" or ratio decidendi, which serves as binding precedent. Common law is flexible as it can respond to changes in society. It is also adaptable to unforeseen situations as it is not restricted by statutes and codes. This means that in a “case of first impression”, judges are empowered to establish a new precedent.
Common law is used in many countries around the world, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. It is one of the two main legal systems in use today, alongside civil law. While common law relies on caselaw and legal precedent, civil law relies on codes and statutes.
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Common law is deeply rooted in stare decisis
Common 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, stare decisis is the doctrine that courts will adhere to precedent in making their decisions. It is a principle that promotes stability and consistency in the legal system, as it ensures that similar cases are decided in a similar manner.
The concept of stare decisis is important in common law because it provides a framework for deciding new cases based on previous rulings. When a court faces a legal argument, it will first determine the facts of the case and then locate any relevant statutes and cases. If a previous court has ruled on the same or a closely related issue, the current court will generally align its decision with the previous ruling. This is known as following precedent or caselaw.
There are two types of stare decisis: horizontal and vertical. Horizontal stare decisis refers to a court adhering to its own previous decisions, while vertical stare decisis refers to a court following the precedent set by a higher court. For example, a federal court of appeals in the United States must follow the decisions of the U.S. Supreme Court, which is the highest court in the land.
Stare decisis is not an absolute rule, however. Courts can overrule precedent if they find compelling reasons to do so or if the previous decision is no longer workable or applicable. This flexibility allows common law to adapt to changes in society and address situations that may not have been previously considered by lawmakers.
The benefits of common law and stare decisis include stability, consistency, efficiency, and adaptability. By following precedent, courts can save time and resources by avoiding the need for relitigation and promoting predictable outcomes. Additionally, common law allows for the development of legal principles that reflect societal changes, as judges can establish new precedent in cases of first impression.
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Common law is flexible and adaptable
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that originated in England during the Middle Ages and is still used in many countries today, including the United States, Canada, India, and Australia.
However, common law also allows for flexibility and adaptability. In cases where there is no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent. This is known as a "case of first impression". Additionally, higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers to do so, which allows the law to adapt to changes in society.
The flexibility of common law can be seen in its ability to address situations that were not contemplated or predicted by lawmakers. This is because common law draws from institutionalized opinions and interpretations from judicial authorities and public juries, rather than relying solely on codes and statutes. This allows the law to be interpreted and applied to new and unusual situations, such as the prosecution of "upskirting" in the UK as a form of "outraging public decency".
Overall, the flexibility and adaptability of common law are important advantages of this legal system. It allows the law to respond to changes in society and address unforeseen situations, promoting consistency and stability in the legal system.
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Common law is judge-made law
Common law, also known as judicial precedent, judge-made law, or case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". In other words, common law is largely based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
The common law, so named because it was common to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. Prior to the Norman Conquest, much of England's legal business took place in the local folk courts of its various shires and hundreds. A variety of other individual courts also existed across the land: urban boroughs and merchant fairs held their own courts, and large landholders also held their own manorial and seigniorial courts as needed.
Unlike civil law, common law is not based on a comprehensive code of statutes that outline the procedures for handling claims and the punishment for offences. Instead, common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Similar to civil law, the goal of common law is to establish consistent outcomes by applying the same standards of interpretation.
Judge-made law is created through court decisions, not statutes. Judges shape the law by interpreting statutes and filling gaps where legislation is silent or ambiguous. Judicial lawmaking operates under constraints such as precedent (stare decisis) and statutory interpretation. Common law evolves incrementally through case decisions, with courts balancing consistency and adaptation to social needs.
There is debate about the democratic legitimacy of judge-made law and the appropriate limits of judicial discretion. However, judge-made law, also known as stare decisis or case law, is inherently evolutionary. It develops gradually through the accumulation of decisions in individual cases, allowing the legal system to respond to new problems without waiting for legislative action.
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Common law originated in the practices of the courts of the English kings
Common 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, which means "to stand by things decided". In other words, common law is centred around the idea that past decisions and rulings, or case law, are followed when dealing with similar cases in the future.
Common law originated in the King's Court (Curia Regis) in the centuries following the Norman Conquest of 1066. Prior to this, much of England's legal business took place in local folk courts, with various other individual courts also existing across the land, including those held by large landholders. The Norman Conquest of England brought about a shift from local, informal power arrangements to a more centralised system of formal government.
The reign of King Henry II (1154-1189) saw the establishment of permanent royal courts, including the Court of the King's Bench and the Court of Common Pleas, in Westminster, London. This marked a significant expansion of royal justice, both geographically and socially, as it allowed individuals from all classes, including freemen, to have regular recourse to the king's court. Henry II also established the Grand Jury, which created a coherent system for prosecuting crime based on the cooperation of local communities with royal judges.
The expanded system of royal justice that emerged in the late 1100s came to be known as the 'Common Law'. This term initially referred to the law that was common or the same throughout the country, as opposed to the diversity of regional or local laws. The common law emphasised written documentation, particularly royal writs, which were brief written orders from the king that initiated lawsuits. These writs helped to create something more like modern property rights and undermined lordly power.
The common law, as it developed over time, was largely created by judges rather than legislators. It is important to note that common law is not the only type of legal system in use today. Many countries, particularly in continental Europe, follow a civil law system, which centres around a comprehensive code of statutes that outline procedures and punishments for offences.
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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 deeply rooted in the principle of stare decisis, which means "to stand by things decided".
Civil law is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Common law, on the other hand, draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common law promotes stability and consistency, as outcomes are based on previous caselaw rather than subjective viewpoints. It is also efficient, as judges only need to follow precedent, and adaptable, as it can address situations not predicted by lawmakers.
Common law can lead to the marginalization or disempowerment of certain groups, as past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
Many countries use common law, including the United States, which based its common law rules on English common law. Every US state except Louisiana has a common law legal system. Countries that were former British colonies or protectorates also typically follow common law.
