Kara Sears
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is generally uncodified, with no comprehensive compilation of legal rules and statutes. It is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. Common law is practised in several countries, including Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States.
| Characteristics | Values |
|---|---|
| Basis | Court decisions, precedent, and practice |
| Written decisions | Uncodified, with scattered statutes |
| Flexibility | Higher courts can overrule prior decisions without waiting for lawmakers |
| Weight of precedent | Greater weight than civil law systems |
| Judicial decisions | Binding, unless overturned by the same court or through legislation |
| Freedom of contract | Few provisions are implied into the contract by law |
| Trust concept | Yes |
| Country of use | Common in former British colonies or protectorates, including the US, Australia, Canada, Hong Kong, India, New Zealand, and the UK |
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What You'll Learn
- Common law is a body of law based on legal precedents
- Common law is flexible, adapting to changes in society
- Common law systems are less prescriptive than civil law systems
- Common law draws from institutionalised opinions and interpretations from judicial authorities
- Common law is based on practice, or 'the way we've always done it'
Common law is a body of law based on legal precedents
Common law is a body of unwritten laws based on legal precedents established by the courts. It is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historical documentation in collections of case law known as yearbooks and reports. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common law is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes. While common law relies on some scattered statutes, which are legislative decisions, it is based on precedent. Judicial decisions are binding, and decisions of the highest court can generally only be overturned by that same court or through legislation.
In common law legal systems, the first step is often to look at earlier court rulings and decisions. This means that to know what may be binding, one must first know how similar situations have been handled in the past. This involves searching for relevant case law or legal precedent.
Common law has been described as flexible since it can respond to changes in society. Unlike civil law systems, common law doesn't require lawmakers to pass changes in statutes and codes. When it comes to common law, higher courts can and sometimes do overrule prior decisions as "bad law", and they don't need to wait for lawmakers to do so.
Countries that follow a common law system are typically former British colonies or protectorates, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
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Common law is flexible, adapting to changes in society
Common law is a body of unwritten laws based on legal precedents established by the courts. It is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is flexible and adapts to changes in society.
Common law is flexible because 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 take a long time or never happen. In common law, higher courts can and sometimes do overrule prior decisions as "bad law" without waiting for lawmakers to do so.
For example, in England, common law held that when couples divorced, fathers—rather than mothers—were entitled to custody of the children, effectively keeping women trapped in marriages. It was not until the 1970s that societal changes prompted a judicial body to overturn this precedent. This example demonstrates how common law can adapt to changes in society and address outdated or biased past decisions.
Another example of common law adapting to societal changes is the evolution of common-law marriage in the United States. Common law marriage, which is legal in many U.S. states, allows two persons to become legally married without obtaining a marriage license from the state by meeting certain requirements, such as a public declaration of marriage, living together, and co-mingling funds. However, due to the ambiguity of this type of marriage, more and more matters that were once subject to common law are now being formally legislated.
Common law systems also have greater flexibility in granting different types of security over assets, which is an important feature for public-private partnership (PPP) arrangements involving commercial funding. Additionally, the concept of trusts in common law enables security interests to be held by a trustee for lenders in a syndicated loan situation without the need for a formal transfer or re-registering of security interests in the names of new lenders. This flexibility in common law systems can facilitate complex financial arrangements and commercial transactions.
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Common law systems are less prescriptive than civil law systems
Civil law systems, on the other hand, are more prescriptive and are based on specific codes and written constitutions that enshrine basic rights and duties. It is a codified system of law that originates from Roman law. Civil law is a comprehensive, codified set of legal statutes created by legislators, with clearly defined cases that can be brought to court, procedures for handling claims, and punishments for offences.
The flexibility of common law allows it to respond to changes in society. Unlike civil law, common law does not require lawmakers to pass changes in statutes and codes, and higher courts can overrule prior decisions without waiting for lawmakers. Common law systems provide extensive freedom of contract, with few provisions implied by law, and generally permit anything that is not expressly prohibited.
Countries that follow a common law system are typically those that were former British colonies or protectorates, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. Civil law systems are typically found in former French, Dutch, German, Spanish, or Portuguese colonies, such as much of Central and South America, Central and Eastern European, and East Asian countries.
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Common law draws from institutionalised opinions and interpretations from judicial authorities
Common law is a body of unwritten laws based on precedent, or prior judicial decisions, rather than codes or statutes. It is largely based on stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law is centred on the principle that courts and judges should follow previous rulings when dealing with similar cases in the future.
In common law systems, precedents are maintained over time through court records and are historically documented in collections of case law, or yearbooks and law reports. For example, after the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. Newer states often looked to the Massachusetts Reports for authoritative precedents as a basis for their own common law.
While common law relies on some scattered statutes, it is generally uncodified. This means there is no comprehensive compilation of legal rules and statutes. Common law is based on "the way we've always done it", and while it is flexible, it can also be open to ambiguity. In the United States and other countries, matters that were once subject to common law are increasingly being formally legislated.
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Common law is based on practice, or 'the way we've always done it'
Common law is a body of unwritten laws based on precedent, or "stare decisis", a Latin term meaning "to stand by things decided". This means that common law is based on previous court decisions and rulings, which are maintained over time through court records and historical documentation. In other words, common law is based on practice, or "the way we've always done it".
Common law is typically found in countries that were former British colonies or protectorates, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. It is generally more flexible than civil law, as it can respond to changes in society without requiring lawmakers to pass changes in statutes and codes. For example, higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers to act.
However, the reliance on precedent in common law can also lead to outdated or biased decisions continuing to shape future rulings until societal changes prompt a judicial body to overturn the precedent. For example, in England, common law held that fathers were entitled to custody of the children in divorce cases until the 1970s, which effectively kept women trapped in marriages.
Common law is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes. Instead, it relies on scattered statutes and legislative decisions, as well as institutionalized opinions and interpretations from judicial authorities and public juries. This can sometimes lead to ambiguity, as there is no official legal code that can be directly applied to a case.
In summary, common law is based on the way things have always been done, with previous court decisions and rulings forming the basis of evaluation for future cases. While this can provide flexibility and consistency in decision-making, it also carries the risk of perpetuating outdated or biased precedents until societal changes prompt their overturning.
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Frequently asked questions
A common law system is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is generally uncodified, with no comprehensive compilation of legal rules and statutes.
In a common law system, 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 system, the first thing to look at is often earlier court rulings and decisions.
Common law systems are less prescriptive than civil law systems. Civil law is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Common law systems have greater flexibility in granting different types of security over assets.
