Kara Sears
The two main legal systems used globally are common law and civil law. Common law, also known as case law or judge-made law, is a body of law based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin term for the concept of standing by past decisions. In common law, judges are bound by previous rulings in similar cases, and they can also overturn past decisions to set new precedents. Civil law, on the other hand, centres on a comprehensive code of statutes that outline procedures and punishments. While common law is flexible and adaptable to societal changes, civil law provides clear and detailed rules for judges to follow.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of law based on legal precedents established by the courts. |
| Basis | Common law is derived from judicial decisions, not statutes or constitutions. |
| History | Common law originated in the practices of the courts of English kings following the Norman Conquest in 1066. |
| Geographic Application | Common law is practiced in the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. |
| Judicial System | Common law systems rely on case law and legal precedent to guide their decisions. |
| Flexibility | Common law is flexible as it can respond to changes in society and higher courts can overrule prior decisions. |
| Pros and Cons | Common law promotes stability and consistency in the legal system. However, it can lead to the marginalization or disempowerment of certain groups due to outdated or biased past decisions. |
| Legislative Role | Common law influences new legislation and can furnish the basis for writing new laws. |
| Research and Citations | Common law research is complex and often involves searching for relevant case law and legal precedent in case reporters and practice guides. |
| Enforcement | Judges in common law systems depend on the executive branch to enforce court decisions. |
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What You'll Learn
Common law is based on judicial precedent, judge-made law, or case 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, a Latin phrase that means "to stand by things decided". In other words, common law is based on the idea that courts and judges should follow previous rulings and decisions when dealing with similar cases in the future. This is in contrast to civil law systems, which rely primarily on codes and statutes created by legislators.
The common law system is flexible and can respond to changes in society. It does not require lawmakers to pass changes in statutes and codes, which can be a lengthy process. Instead, higher courts in common law systems can overrule prior decisions as "bad law" without waiting for lawmakers to act. This flexibility allows common law to adapt to societal changes and overturn outdated or biased precedents. For example, in England, common law held that fathers were entitled to custody of the children in divorce cases, which was a bias that kept women trapped in marriages. This precedent was eventually overturned in the 1970s due to changing societal norms.
Common law originated in the practices of the English king's courts following the Norman Conquest in 1066. It was introduced to North America during the colonial period and is now practiced in countries such as the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. While civil law systems provide clear rules for judges to follow, common law systems offer stability and consistency by ensuring that outcomes are based on previous caselaw rather than subjective viewpoints.
In common law systems, judges play a significant role in interpreting and applying the law. They present the precedents that apply to a case, influencing the criteria used by juries to interpret and decide on cases. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries, aiming to establish consistent outcomes by applying the same standards of interpretation. However, this reliance on precedent can also lead to the marginalization or disempowerment of certain groups if past decisions are outdated or biased.
In summary, common law, as judicial precedent, judge-made law, or case law, is a dynamic and adaptable legal system that prioritizes stability and consistency by relying on judicial precedents and rulings from previous similar cases. While it offers benefits such as flexibility and consistency, it is essential to recognize the potential for perpetuating biases and marginalization if outdated precedents are not addressed through societal change and judicial overturning.
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Common law is flexible and can respond to changes in society
Common law, also known as case 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, common law relies on previous court rulings and decisions to determine future cases. This makes it flexible and able to respond to changes in society.
One of the key advantages of common law is its flexibility. Unlike civil law, common law is not dependent on lawmakers to pass changes in statutes and codes, which can be a lengthy and challenging process. Instead, higher courts in the common law system can overrule prior decisions as "bad law" without waiting for legislative intervention. This allows common law to adapt to new trends and changes in society more swiftly.
For example, in England, common law held that fathers were entitled to custody of the children in cases of divorce, a bias that kept women trapped in marriages. However, societal changes and the efforts of women's rights activists led to a judicial body overturning this precedent in the 1970s. This example illustrates how common law can respond to evolving societal norms and address injustices.
Additionally, common law courts are not absolutely bound by precedent. They can reinterpret and revise the law when presented with extraordinary reasons, allowing for incremental changes over time. This gradual evolution of the law reduces disruptive effects and ensures consistent outcomes by applying the same standards of interpretation.
Furthermore, common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. This means that common law can be influenced by changes in societal thought and civil legislation, which can shape the interpretation and application of the law. As a result, common law can reflect the values and norms of society and adapt to new situations that may not be covered by existing statutes.
In summary, common law's reliance on legal precedent, its flexibility in overruling previous decisions, and its ability to evolve gradually make it responsive to changes in society. It allows for the correction of injustices, the adaptation to new trends, and the reflection of societal values in the legal system.
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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 derived from judicial decisions rather than statutes or constitutions. Common law is practised in several countries, including the United States, Canada, the United Kingdom, and Australia.
Common law, also known as case law or judge-made law, is deeply rooted in the principle of stare decisis. Stare decisis is a Latin phrase that means "to stand by things decided". It is the idea that courts will adhere to precedent in their decisions. In other words, courts follow precedents established by previous decisions, and judges are required to follow existing precedents when dealing with similar cases. This concept promotes stability and consistency in the legal system, as it provides a framework for predictable and unbiased decision-making.
The doctrine of stare decisis has both horizontal and vertical applications. Horizontal stare decisis refers to a court adhering to its own previous decisions, while vertical stare decisis involves lower courts following the rulings of higher courts within the same jurisdiction. For example, a federal court of appeals in the United States must adhere to the decisions of the Supreme Court.
Stare decisis also reduces the need for subsequent litigation, saving time and energy for the judiciary. It prevents judges from acting arbitrarily or with bias by requiring them to follow established precedents. However, stare decisis is not an absolute rule, and courts can overrule previous decisions if they are deemed "bad law" or "unworkable".
In summary, common law is deeply rooted in stare decisis as it relies on judicial precedent to guide its decisions. Stare decisis provides a framework for consistent and unbiased legal decision-making, promoting stability and predictability in the common law system.
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Common law is practised in the UK, US, Canada, Australia, and more
Common law is a body of law derived from judicial decisions, rather than statutes or codes. It is deeply rooted in stare decisis, a Latin term that means "to stand by things decided". This means that judges need to follow earlier decisions and rulings, or case law, when dealing with similar cases later. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries.
Common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It is practised in several countries, including the United States, the United Kingdom, Canada, and Australia.
In the US, common law is practised alongside civil law. US common law rules were originally based on English common law. US common law is also influenced by reception statutes, which are statutory laws adopted by former British colonies upon independence. All US states, except Louisiana, have implemented reception statutes or adopted common law by judicial opinion. US common law allows for more flexibility than civil law, as it does not require lawmakers to pass changes in statutes and codes. Instead, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to do so.
In the UK, common law constitutes the legal systems of England, Wales, and Northern Ireland, as well as the Caribbean jurisdictions of Antigua and Barbuda, Barbados, the Bahamas, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, and Trinidad and Tobago. Scotland has a bijuridical system, using both common and civil law. The UK's Supreme Court has the authority to overrule and unify criminal law decisions of lower courts and is the final court of appeal for civil law cases. An example of the UK's use of common law is the offence of "outraging public decency", which was used as the basis for the Voyeurism (Offences) Act criminalising upskirting.
In Canada, all provinces except Quebec use a common law system for civil matters. Quebec, instead, uses a French-heritage civil law system. Canadian federal courts operate under a separate system and deal with a narrower range of subject matter than superior courts in each province and territory. They hear cases on subjects assigned to them by federal statutes, such as immigration, intellectual property, and admiralty. Canadian criminal law uses a common law system across all provinces.
In Australia, common law is practised at both the federal level and in each of the states and territories. Some differences exist between Australian states and other common law countries. For example, in some states, truth is not necessarily a defence in libel cases, unlike in the US and UK. Additionally, the crown reserves all mineral rights to itself.
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Common law is distinct from civil law
Common law, also known as case law or judge-made 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". Common law originated in medieval England and was common to all the king's courts across the country. It is now used in many countries that were formerly under English rule, including the United States, Australia, Canada, India, and New Zealand.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is based on legal codes and statutes rather than judicial precedent. Civil law originated in mainland Europe and is still used in much of continental Europe today. It has a long history, dating back to the ancient Romans, who developed civil law in a very sophisticated manner with the Code of Justinian.
One key difference between common law and civil law is their reliance on different sources of authority. Common law systems rely on case law and legal precedent to guide their decisions, while civil law systems depend primarily on codes and statutes. In common law, judges are bound by the decisions of higher courts and must follow the principle of stare decisis, which means they need to adhere to previous rulings in similar cases. In contrast, civil law court decisions are not binding in other cases, even if the facts are similar. Civil law provides clear rules for judges to follow for specific disputes, while common law allows for more flexibility as higher courts can overrule prior decisions without waiting for lawmakers to do so.
Another distinction between the two systems lies in their approach to consistency and stability. Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous case law rather than subjective viewpoints. On the other hand, civil law aims to create order and reduce bias by standardizing codes and ensuring that laws are applied consistently across cases. While civil law provides clear guidelines for judges to follow, common law allows for more flexibility in interpreting the law.
In summary, common law and civil law differ in their underlying principles, geographical origins, and approaches to authority, consistency, and flexibility. Common law is based on judicial precedent and is more flexible, while civil law relies on legal codes and statutes, providing clearer rules for judges to follow. Both systems have their advantages and disadvantages, and many jurisdictions today use a combination of both common and civil law.
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Frequently asked questions
Common law is a body of law based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Civil law systems rely primarily on codes and statutes, while common law systems rely on caselaw and legal precedent to guide their decisions. Civil law is also typically more detailed and clear-cut than common law.
Judges present the precedents that apply to a case and significantly influence the criteria that a jury uses to interpret it. They can also overturn previous case laws by setting new precedents of higher authority.
Academic writers are often cited in legal arguments and decisions, especially when judges are attempting to implement reasoning that other courts have not yet adopted. However, common law courts have historically relied little on legal scholarship.
The US Constitution establishes the judicial branch as one of the three separate and distinct branches of the federal government. The judicial branch has the authority to decide the constitutionality of federal laws and resolve other cases involving federal laws.
