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Common law is a synonym for case law and precedent. It is a type of civil law that is based on past court decisions and judicial precedent rather than statutory law. Common law is more flexible than statutory law because it can be revised without legislative intervention and can respond to changes in society. It is a legal system that originated in the unwritten laws of England and was later applied in the United States, Canada, India, and Australia.
| Characteristics | Values |
|---|---|
| Synonyms | Case law, precedent, civil law, jurisprudence, martial law, statute, ordinance, enactment, act, decree, ground rule, ruling, commandment, constitution, fiat, amendment, bill, legislation, rule, directive, regulation, blue law, edict, dictate, command, bylaw, restriction, prohibition, proscription, canon, capitulary, encyclical |
| Definition | A body of law based on court decisions rather than codes or statutes |
| Origin | The common law system originated in England during the Middle Ages and was later applied in the United States |
| Current usage | Several countries, including the US, Canada, India, and Australia, rely heavily on common law to resolve legal disputes |
| Comparison with civil law | Common law is more flexible than civil law as it can respond to changes in society without requiring lawmakers to pass changes in statutes and codes |
| Common law places great weight on precedent, while civil law judges tend to give less weight to judicial precedent | |
| Common law promotes stability and consistency as outcomes are based on previous caselaw rather than subjective viewpoints |
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What You'll Learn
Common law is flexible
Common law is a type of law based on past judicial decisions and legal precedents, rather than written statutes. It originated in England during the Middle Ages and was later applied in the United States and other former British colonies. Common law is often described as flexible because of its ability to adapt to new developments and situations.
One of the key advantages of common law is its flexibility in responding to changes in society. Unlike civil law systems, common law does not require lawmakers to amend statutes and codes, which can be a lengthy process or may never occur. In common law systems, higher courts can overrule prior decisions as "bad law" without waiting for legislative intervention. This allows common law to be more responsive to unique cases and new dilemmas, treating them on a case-by-case basis to achieve fair outcomes.
The flexibility of common law is further enhanced by its ability to adapt to new trends and developments in political, legal, and social philosophy. Common law courts are not absolutely bound by precedent and can reinterpret and revise the law when presented with extraordinary reasons. This flexibility enables common law to evolve gradually over time, resulting in substantial changes without causing abrupt disruptions.
Additionally, common law provides stability and consistency to the legal system. The doctrine of stare decisis, a Latin phrase meaning "to stand by things decided," ensures that court decisions are based on previous case law rather than subjective personal viewpoints. This predictability allows individuals to understand the potential outcomes of their actions based on past precedents, promoting consistency in the application of the law.
However, it is important to note that common law is reactive rather than proactive. Courts can only change common law after the fact and are limited to addressing cases brought before them. While common law can adapt to new situations, it primarily responds to real-life cases rather than proactively creating new laws.
In summary, common law is flexible due to its ability to adapt to new developments and situations. It achieves this through the reinterpretation of precedents, responsiveness to unique cases, and the gradual evolution of the law over time. Common law provides a stable and consistent framework while remaining adaptable to the changing needs of society.
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Common law vs civil law
Common law, also known as case law or judicial precedent, is a legal system that originated in England during the Middle Ages. It is based on prior court rulings and decisions rather than written statutes. Common law is flexible and can adapt to changes in society without legislative intervention. It is used in several countries, including the US, Canada, India, and Australia.
Civil law, on the other hand, is the most common legal system globally, practised in about 150 countries. It is rooted in the Roman Empire and was comprehensively codified starting in the 19th century, with the Napoleonic Code and the Bürgerliches Gesetzbuch. Civil law relies primarily on legal codes and statutes that outline procedures and punishments. It is generally more prescriptive than common law, and court decisions are not binding in other cases, even with similar facts.
The primary distinction between the two systems is their approach to written decisions and precedent. Common law systems heavily emphasise precedent, while civil law judges tend to give less weight to prior judicial decisions. For instance, the Napoleonic Code prohibited French judges from pronouncing general principles of law. Civil law systems also have an inquisitorial system for criminal proceedings, where an examining magistrate develops evidence and arguments for both sides during the investigation phase.
In terms of contracts, common law systems require all terms to be explicitly stated in the contract, as few provisions are implied by law. In contrast, civil law systems imply various provisions into contracts, such as equal bargaining provisions when one party has a stronger bargaining position.
While common law promotes stability and consistency due to its reliance on precedent, civil law provides clear rules and guidelines for judges to follow in specific disputes. Common law allows higher courts to overrule prior decisions as "bad law" without legislative action, whereas civil law systems may require legislative changes to update statutes and codes.
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Common law and precedent
Common law is a body of unwritten laws based on legal precedents established by the courts. It originated in the unwritten laws of England and was later applied in the United States. Common law is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". This means that 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 based on past decisions made by judges, rather than on written statutes. An example of common law is the requirement that police officers read someone their rights when they are being arrested. There are legal precedents proving that judges agree these warnings are constitutionally necessary, and this has been decided in courtrooms rather than established as a written law.
Common law systems place great weight on precedent, whereas civil law judges tend to give less weight to judicial precedent. Common law systems rely on caselaw and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Civil law systems have a comprehensive code of statutes that clearly outline everything from the procedures for handling claims to the punishment for offences. Common law, on the other hand, draws from institutionalised opinions and interpretations from judicial authorities and public juries.
Common law is also flexible, as it can respond to changes in society. Unlike civil law systems, common law doesn't require lawmakers to pass changes in statutes and codes, which can be a lengthy process. In common law systems, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to do so. This means that common law can adapt to situations that were not contemplated at the time by the legislature.
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Common law in the US
Common law is a type of civil law that is based on past judicial decisions and precedent, rather than statutory laws. It originated in England during the Middle Ages and was later applied in the United States. Common law is flexible and can adapt to changes in society without legislative intervention. It is based on the principle of stare decisis, which means that courts and judges must follow previous rulings and decisions, also known as case law.
In the United States, common law is used at both the state and federal levels. While most common law is found at the state level, there is also a limited body of federal common law, which consists of rules created and applied by federal courts in the absence of any controlling federal statute. For example, in the 2020 Supreme Court opinion Rodriguez v. FDIC, the Court quoted an earlier decision to explain that federal "common lawmaking must be 'necessary to protect uniquely federal interests'."
At the state level, legislatures may codify common law rules from the courts of their state, either to give the rule more permanence, to modify it, or to replace it entirely with legislation. An example of this is the 2018 California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, which created a three-part test for determining whether California workers were independent contractors or employees. The California Legislature subsequently created a new section of the Labor Code that codified and expanded on the Dynamex holding.
Common law systems contrast with civil law systems, which rely primarily on codes and statutes rather than judicial precedent. Civil law systems, which originated in mainland Europe, have a comprehensive code of statutes that outlines procedures and punishments for various offenses. In civil law systems, court decisions are not binding in later cases with different parties, even if the facts are similar.
While the United States has many common law states, none of its common law systems are technically pure common law systems. This is because American courts must also take into consideration the countless codified statutes that exist at both the state and federal levels. However, the principle of stare decisis remains constant in U.S. common law systems, meaning that prior court decisions interpreting a statute are precedent and binding.
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Common law in the UK
Common law is a term with historical origins in the legal system of England. The English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. English common law was largely created in the period after the Norman Conquest of 1066.
Common law is based on past decisions made by judges, rather than on written statutes. An example of common law is the requirement that police officers read someone their rights when they are being arrested. This is based on legal precedents proving that judges agree these warnings are constitutionally necessary, rather than on a written law.
The common law system as we know it started in England during the Middle Ages. Common law is often contrasted with civil law, which is widespread in continental Europe. Civil law systems rely primarily on codes and statutes, whereas common law systems place great weight on precedent. Common law is more malleable than statutory law, as common law courts can reinterpret and revise the law without legislative intervention.
English criminal law derives its main principles from common law. The main elements of a crime are the actus reus (doing something which is criminally prohibited) and a mens rea (having the requisite criminal state of mind, usually intention or recklessness). Murder remains a common law crime in England rather than a statutory offence.
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. The judiciary is independent, and legal principles like fairness, equality before the law, and the right to a fair trial are foundational to the system. Although the common law has historically been the foundation and prime source of English law, the most authoritative law is statutory legislation, which comprises Acts of Parliament, regulations and by-laws.
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Frequently asked questions
Common law is a legal system that originated in England during the Middle Ages and is based on past court decisions and judicial precedents rather than written statutes. It is used in several countries around the world, including the US, Canada, India, and Australia.
Some examples of common law include the requirement for police officers to read the Miranda warnings to arrestees, such as "you have the right to remain silent", and the recognition of common-law marriage.
While common law systems rely on past court decisions (case law) and legal precedents to guide their rulings, civil law systems primarily follow codes and statutes. Civil law systems, which originated in mainland Europe, are centred around a comprehensive code of statutes that outline procedures and punishments.
