Cecily Zamora
Common law is a body of unwritten laws based on precedent and prior court rulings and decisions. It is generally uncodified, with no official legal code, and relies on scattered statutes and judge-made rules. The doctrine of precedent, or stare decisis, is central to common law, meaning that judges need to follow earlier decisions and rulings when dealing with similar cases. This doctrine developed during the 12th and 13th centuries, with the collective judicial decisions based on tradition, custom, and precedent.
| Characteristics | Values |
|---|---|
| Uncodified | No comprehensive compilation of legal rules and statutes |
| Based on precedent | Stare decisis, meaning "to stand by things decided" |
| Casuistry or case-based reasoning | Based on previous court decisions |
| No official legal code | Based on similar situations and statutes |
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What You'll Learn
Precedent
Common law is a body of unwritten laws based on legal precedents established by the courts. It is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes. Instead, it relies on precedent, or the judicial decisions that have already been made in similar cases. This is known as the doctrine of stare decisis, a Latin phrase that means "to stand by things decided".
The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions that were based on tradition, custom, and precedent. The early development of case law in the 13th century has been traced to Bracton's "On the Laws and Customs of England", which led to the yearly compilations of court cases known as Year Books. These Year Books are the principal source for knowledge of the developing legal doctrines, concepts, and methods during this time period.
In a common law legal system, finding relevant case law is essential to success. This involves looking at earlier court rulings and decisions to determine what may be binding in a current case. The precedent to be applied in each new case is determined by the presiding judge. While lower courts typically follow the decisions of higher courts, they can modify or deviate from precedents if they are outdated or if the current case is substantially different. However, this is rare.
The reliance on precedent in common law promotes stability and consistency in the legal system. It provides a framework for evaluating future cases based on past decisions. However, it has also been criticised for its rigid adherence to old precedents, which may be outdated or biased and can lead to the marginalization or disempowerment of certain groups.
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Casuistry
The term "casuistry" derives from the Latin noun "casus," meaning "case," especially in the context of a "case of conscience." While the term first appeared around 1600, the concept dates back to at least Aristotle (384–322 BC). Casuistry was widely used by the Society of Jesus (the Jesuits) from 1550 to 1650, particularly in administering the Sacrament of Penance.
Despite its long history, casuistry has faced criticism and negative connotations. Blaise Pascal, for example, attacked the misuse of casuistry in his Provincial Letters (1656–57), arguing that it was used to justify immoral behaviour. Similarly, Henry St. John, 1st Viscount Bolingbroke, wrote in 1738 that casuistry "destroys, by distinctions and exceptions, all morality, and effaces the essential difference between right and wrong, good and evil."
However, in the 20th century, scholars like Albert Jonsen and Stephen Toulmin revived the importance of casuistry, arguing that it is a powerful reasoning tool when used appropriately. They proposed casuistry as a method for navigating the tensions between moral absolutism and moral relativism.
In the context of common law, casuistry is essential for evaluating and resolving legal disputes. It allows for the consideration of unique circumstances and the application of relevant precedents. Casuistry is particularly relevant in common law jurisdictions, such as the US, Canada, India, and Australia, where it forms the basis of case law and influences judicial decisions.
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Roman Law
The classical procedure of Roman law consisted of two stages: the first identified the legal issue, while the second focused on proof and decision-making. This structure is a notable similarity between Roman law and common law. Additionally, both systems produced narrow rules that were continually modified through recorded discussions of cases, assuming that the relevant law existed but required precise definition.
The influence of Roman law can be observed in the legal systems of former colonies of Western European countries, such as Spain and Portugal. In contrast, English common law and its derivatives, including those in former British colonies like Australia and India, have been characterised as relatively immune from Roman influence. However, English and Anglo-American common law have been influenced by Roman law in certain aspects, such as their adoption of a Latinate legal glossary.
While civil law, rooted in Roman law, relies on written statutes and codes, common law systems place greater emphasis on judicial precedent. In civil law, judicial precedent is not binding, whereas in common law, past precedents are used to decide future cases, and judges are bound by the decisions of higher courts.
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Stare decisis
The common law system as we know it started in England during the Middle Ages. Several countries, including the US, Canada, India, and Australia, continue to rely heavily on common law when resolving legal disputes. Common law is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes. Instead, it relies on scattered statutes and, more importantly, precedent, or stare decisis.
The doctrine of precedent developed during the 12th and 13th centuries as collective judicial decisions based on tradition, custom, and precedent. The early development of case law in the 13th century has been traced to Bracton's On the Laws and Customs of England, which led to the yearly compilations of court cases known as Year Books. The Year Books are known as the law reports of medieval England and are a principal source for knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when the common law developed into a recognizable form.
In a common law legal system, finding on-point, relevant caselaw is essential to success. If a court makes a particular decision based on a specific set of facts, then the court is required to follow that decision if they ever rule on the same or a closely related issue. Likewise, decisions made by higher courts are typically binding on lower courts in the same jurisdiction. 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.
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Consistency
Common law, also known as case 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 codes. The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent.
In a common law legal system, finding relevant case law is essential. This involves searching for past cases with similar facts and legal issues that were decided in a particular way. The presiding judge over a case determines which precedents apply to that specific case.
The consistency provided by stare decisis means that similar cases are decided in a similar manner, providing predictability and stability in the law. It ensures that past decisions guide future rulings, until societal changes prompt a judicial body to overturn the precedent.
However, the reliance on stare decisis and precedent in common law has also been criticised for its rigidity, particularly when dealing with outdated or ill-considered previous decisions. Lower courts can modify or deviate from precedents if they are outdated or if the current case differs substantially from the precedent case. Nonetheless, stare decisis remains a fundamental principle of common law, providing consistency and continuity in the legal system.
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Frequently asked questions
Common law relies on the doctrine of stare decisis, which is a Latin phrase that means "to stand by things decided".
Stare decisis is a precedent, or a history of judicial decisions that form the basis of evaluation for future cases.
In common law, stare decisis is the principle that courts and judges need to follow earlier decisions and rulings, or caselaw, when dealing with similar cases.
Stare decisis promotes stability and consistency in the legal system by providing a framework for judges to follow when deciding cases. It also allows for the evolution of the law over time, as judges can modify, deviate from, or overturn precedents when necessary.
