Cameron Miranda
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. Common law is usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems trace their history to English common law, while civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law. Today, common law is used almost exclusively by countries that were once British colonies, including the United States, Canada, India, and Australia.
| Characteristics | Values |
|---|---|
| History | Common law systems can be traced back to England during the Middle Ages, when Henry II created a unified system of law. |
| Current Usage | Common law is used almost exclusively by former British colonies, including the US, Canada, India, and Australia. |
| Exceptions | Malta is a former British colony that does not use common law. Louisiana and Quebec, in the US and Canada, respectively, use a civil law system. |
| Contrast with Civil Law | Civil law focuses on written codes and statutes and has less emphasis on legal precedent. Civil law is prevalent in Continental Europe, Mexico, most of Central and South America, and some African countries. |
| Basis of Decisions | Common law is based on court opinions and previous rulings, which are considered precedent. |
| Legislature | Each system has a legislature that passes new laws and statutes, which may or may not be influenced by judicial decisions. |
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What You'll Learn
The history of common law
Common law, also known as case law, is a legal system in which the main body of law is primarily developed through judicial decisions in court cases rather than statutes. It 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. Common law is often contrasted with civil law systems, which are used in Continental Europe, Mexico, most of Central and South America, and some African countries.
Prior to the Norman Conquest, much of England's legal business took place in the local folk courts of its various shires and hundreds. There were also a variety of other individual courts across the land, such as urban boroughs and merchant fairs holding their own courts, and large landholders holding their own manorial and seigniorial courts. The degree to which common law drew from earlier Anglo-Saxon traditions such as the jury, ordeals, the penalty of outlawry, and writs is still a subject of discussion. The Catholic Church also operated its own court system that adjudicated issues of canon law, which included much of what would today be regarded as family law.
Over time, common law was inherited by the Commonwealth of Nations, and almost every former colony of the British Empire has adopted it, with the exception of Malta. Today, common law is used almost exclusively by countries that were once British colonies, such as the United States and Canada, although Quebec and Louisiana respectively follow civil law systems. Common law is one of the most prevalent legal systems in the world, employed by the greatest number of people compared to any single civil law system.
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Common law vs civil law
Common law and civil law are two of the world's main legal systems, with most countries adopting features from one or the other into their own legal systems. Civil law, the most common legal system, is practiced in about 150 countries. Common law is also one of the world's most prevalent legal systems and is used in nearly every former British colony. The United States and Canada follow common law at the national level, except in Louisiana and Quebec, respectively, which follow civil law.
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. Common law originated in medieval England and was institutionalised in 1154 by Henry II, who created a unified system of law "common" to the country.
Civil law, on the other hand, is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is characterised by its reliance on legal codes that function as the primary source of law. In civil law systems, legal codes and statutes are more meticulous and less open to interpretation, and previous court decisions do not necessarily influence the outcome of current cases. Civil law judges tend to give less weight to judicial precedent.
While common law systems provide extensive freedom of contract, with few provisions implied into the contract by law, civil law systems imply a number of provisions into a contract. This means that a contract in a common law country will often be longer than one in a civil law country, as all the terms governing the relationship between the parties must be set out in the contract itself.
The contrast between civil law and common law legal systems has become increasingly blurred, with common law countries adopting codes in various areas of law and civil law countries giving more importance to jurisprudence.
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Countries that use common law
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. Common law is often contrasted with civil law, in which the legal codes and statutes are more meticulous and less open to interpretation, and previous court decisions do not necessarily influence the outcome of current cases.
Common law systems trace their history to English common law, while civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law. The primary contrast between the two systems is the role of written decisions and precedent as a source of law, which is one of the defining features of common law legal systems. While common law systems place great weight on precedent, civil law judges tend to give less weight to judicial precedent. Common law is one of the most prevalent legal systems in the world, employed by the greatest number of people compared to any single civil law system.
Today, common law is used almost exclusively by countries that were once British colonies. The legal system of each country is shaped by its unique history and so incorporates individual variations. The United States and Canada follow common law on a national level, but have a single region (Louisiana and Quebec, respectively) that uses a civil law system. Other countries that continue to rely heavily on common law when resolving legal disputes include India and Australia.
Common law was institutionalised by Henry II in 1154, when he created a unified system of law "common" to the country. He did this by incorporating and elevating local custom to the national level, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system. Judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be, and these decisions would be recorded and filed. Over time, a rule known as stare decisis (commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge.
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Religious legal systems
Islamic law is one of the main kinds of religious law, alongside Halakha in Judaism, and canon law in some Christian groups. Canon law is the internal ecclesiastical law governing the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and individual national churches within the Anglican Communion. Halakha is followed by Orthodox and Conservative Jews in ecclesiastical and civil relations. No country is fully governed by Halakha, but two Jewish people may decide to have a dispute heard by a Jewish court.
Hindu law, Buddhist law, Confucian law, and Jewish law are also recognized as religious legal systems.
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Hybrid legal systems
India is a classic example of a nation with a hybrid legal system. As a former British colony, India has a common law legal system, which recognises the power of the Supreme Court and High Courts to make binding judicial decisions as a form of precedent. However, most of its laws are integrated codes found in a Napoleonic code system. In addition, India has separate personal codes that apply to Muslims, Christians, and Hindus. As a result, India has a hybrid system made up of common law, civil law, and religious law systems.
The term "mixed" should not be construed restrictively, as it includes political entities where two or more systems apply cumulatively or interactively, as well as entities where there is a juxtaposition of systems as a result of more or less clearly defined fields of application.
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. Common law is often contrasted with civil law, in which the legal codes and statutes are more meticulous and less open to interpretation, and previous court decisions do not necessarily influence the outcome of current cases.
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Frequently asked questions
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied.
Common law is used almost exclusively by countries that were once British colonies. Examples include the United States, Canada, India, and Australia.
In a common law system, previous court decisions are usually respected as precedent and applied to current decisions.
