Gavin Howe
Common law is a legal system that gives great weight to precedent and the style of reasoning inherited from the English legal system. It originated in the practices of the courts of English kings following the Norman Conquest in 1066, gradually supplanting local folk and manorial courts. Common law is not based on a comprehensive code of statutes but instead relies on detailed records of similar situations and statutes, with judges empowered to resolve issues and establish new precedents in cases of first impression. The term common-law marriage is often used to describe cohabiting couples, but this is a colloquial misuse of the term, which actually refers to a legally recognised union without a marriage license or ceremony.
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What You'll Learn
Common law origins
The common law system, as we know it, started in England during the Middle Ages. It is a body of law primarily developed through judicial decisions rather than statutes. Common law is deeply rooted in the Latin term 'stare decisis' which means "to stand by things decided". Here, courts follow precedents established by previous decisions.
In the early 20th century, Louis Brandeis, who was later appointed to the United States Supreme Court, became known for his use of policy-driving facts and economics in his briefs. Common law decisions today reflect both precedent and policy judgment drawn from economics, the social sciences, and business.
Common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest. It established a unified legal system, gradually replacing local folk courts and manorial courts. England spread the English legal system across the British Isles, first to Wales, then to Ireland and overseas colonies, which was continued by the later British Empire. Many former colonies retain the common law system today.
According to William Blackstone's declaratory theory, common law reaffirmed pre-existing customs but did not make new laws. The term "'judge-made law" was introduced by Jeremy Bentham as a criticism of the legal profession. Many notable writers eventually adopted the modern definition of common law as "case law" or ratio decidendi, which serves as binding precedent.
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Common law vs civil law
Common law and civil law are the two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is primarily contrasted with civil law, which is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, most notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Common law is generally less prescriptive than civil law, and places great weight on precedent in its decision-making process.
In common law countries like the US and the UK, judges can make laws in certain areas, whereas in civil law countries like Germany and France, legislatures pass much more detailed laws, and they don’t rely as much on the opinions of judges. Common law systems are typically found in countries that were former British colonies or protectorates, including the United States. In common law, judicial decisions are binding – decisions of the highest court can generally only be overturned by that same court or through legislation. There is an extensive freedom of contract, with few provisions implied into the contract by law (although provisions seeking to protect private consumers may be implied). Generally, everything is permitted that is not expressly prohibited by law.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is the world's most common legal system, practiced in about 150 countries. Unlike common law, civil law systems are characterized by their reliance on legal codes that function as the primary source of law. Civil law is generally more prescriptive than common law, and there are a number of provisions implied into a contract. This means that less importance is placed on setting out all the terms governing the relationship between the parties to a contract, as inadequacies or ambiguities can be remedied or resolved by operation of law. This often results in a shorter contract. In civil law countries, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
There are some misconceptions about the differences between common and civil law. For example, it is often assumed that common law involves precedent or deference to previously published judicial opinions, while civil law does not. However, this is not always the case, as German courts have been known to overrule precedents and cite previous cases just as frequently as English courts. Additionally, it is believed that common law systems allow for the flexible interpretation of facts, while civil law is rule-based and rigid. Again, this is not always accurate, as English law can also be unbending, as seen in the Salomon v. Salomon (1896) case.
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Common law jurisdictions
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. It established a unified legal system, gradually supplanting the local folk courts and manorial courts. England spread the English legal system across the British Isles, first to Wales, and then to Ireland and overseas colonies; this was continued by the later British Empire. Many former colonies retain the common law system today.
Legal systems that rely on common law as precedent are known as "common law jurisdictions". Common law is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. However, in a case of first impression with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then, one must extract the principles, analogies, and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. More recent decisions, and decisions of higher courts or legislatures, carry more weight than earlier cases and those of lower courts. Finally, one integrates all the lines drawn and reasons given and determines "what the law is". Then, one applies that law to the facts.
Common law decisions reflect both precedent and policy judgment drawn from economics, the social sciences, business, and decisions of foreign courts. Common law systems are considerably more complicated in practice than in theory. The decisions of a court are binding only in a particular jurisdiction, and even within a given 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, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority.
Common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law is more malleable than statutory law. Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints. Given that judges need only follow precedent when making decisions in common law systems, court proceedings can be much shorter, thereby saving everyone time and money.
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Common law and precedent
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. 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 established a unified legal system, gradually supplanting the local folk courts and manorial courts.
Common law is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. A precedent, known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases. 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 presiding judge determines which precedents apply to a particular case.
In common law systems, precedents are maintained over time through court records and are historically documented in collections of case law referred to as yearbooks and law reports. In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then, one must extract the principles, analogies, and statements by various courts to determine how the next court is likely to rule on the facts of the present case. More recent decisions and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts.
However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case. Lower courts can also choose to overturn the precedent, but this rarely occurs. Common law courts are not absolutely bound by precedent, but can (when an extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal, and social philosophy. The common law evolves through a series of gradual steps, so that over a decade or more, the law can change substantially but without a sharp break, reducing disruption.
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Common law in modern times
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by courts. It originated in England in the early Middle Ages in the King's Court (Curia Regis), a single royal court based in Westminster, London. It is deeply rooted in the Latin term 'stare decisis', which means 'to stand by things decided'. This means that courts follow precedents established by previous decisions. Common law originated as a unified legal system that gradually replaced local folk courts and manorial courts.
Today, common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. It is particularly valuable when adapting the law to situations that were not previously contemplated by the legislature. Common law is still very much in effect in the US and elsewhere today, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. Approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law.
In modern times, common law has been criticised for its role in perpetuating societal biases. For example, in England, common law held that fathers were entitled to custody of children following a divorce, which kept women trapped in marriages. Feminists in the 19th and early 20th centuries often faced difficulties in changing societal norms through common law. However, common law has also served as the basis for new legislation, such as the prosecution of upskirting in the UK.
In the context of relationships, the term "common-law marriage" is often used colloquially to describe cohabiting couples. However, a true common-law marriage is one that is considered valid by the partners, involves cohabitation, and is not formally recorded with a state or religious registry. Not all jurisdictions permit common-law marriage, and even within the US, its recognition varies widely from state to state. For example, while California does not recognise common-law marriages, it will respect such unions if they were contracted in a state that does recognise them.
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Frequently asked questions
A common-law marriage is a marriage that is considered valid by both partners, but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. The couple represents themselves to others as being married and organises their relationship as if they were.
Common-law marriage is recognised in some form in many countries that have a common law legal system, including the United States (except Louisiana). However, within the US, recognition varies from state to state.
A common-law marriage grants couples similar rights to those with a marriage license, without the need for a formal ceremony. This can include rights to inheritance and asset-splitting in the event of a separation.
