Cecily Zamora
The common law doctrine is underpinned by the principle of stare decisis, which translates from Latin as to stand by things decided. In essence, this means that judges are required to follow the decisions and interpretations of previous cases, or caselaw, when ruling on similar matters. This doctrine is a defining feature of common law systems, which contrast with civil law systems where judicial precedent is given less weight. The principle of stare decisis provides stability and consistency in the law by ensuring that outcomes are based on previous rulings rather than subjective viewpoints. While common law allows for some freedom of interpretation, it is primarily focused on adhering to precedent. This adaptability is a key advantage, allowing the law to be applied to situations not previously contemplated by the legislature.
| Characteristics | Values |
|---|---|
| Emphasis on precedent | Stability and consistency |
| Freedom for interpretation | Adaptability |
| Judicial decisions are binding | --- |
| Extensive freedom of contract | --- |
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What You'll Learn
Stare decisis
The doctrine of stare decisis became more firmly established in the mid-19th century when written records of trials and court proceedings began to be made, kept, and collected. This made it easier for judges to reference prior legal decisions that were considered precedential. The doctrine is primarily followed to ensure uniformity and fairness in the application of the law, and to provide judicial restraint, preventing a single judge in a lower court from issuing decisions that are out of line with what higher courts have determined as established law.
There are two components to the stare decisis concept: horizontal and vertical. Horizontal stare decisis holds that prior decisions made by courts at a particular appellate level should provide precedent for cases heard by courts of the same appellate level. For example, the Supreme Court follows a legal precedent unless it has become too difficult for lower courts to apply. On the other hand, vertical stare decisis, which is deeply entrenched in the American legal system, dictates that the decisions of higher courts take precedence over the decisions of lower courts. This is seen when lower courts adhere strictly to rulings made by higher or appellate courts within the same jurisdiction.
While stare decisis is a critical component of the American legal system, it is not without its limitations. For instance, in the case of Cooks v. State, it was emphasised that stare decisis should not be used to "sanctify and perpetuate error". This highlights that while stare decisis is a guiding principle, it should not be blindly followed if it leads to unjust outcomes. In such cases, judges may offer reasons or legal nuances to avoid following precedential decisions or to overturn prior rulings.
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Judicial precedent
The principle of stare decisis promotes stability and consistency in the law, as outcomes are based on previous case law rather than subjective viewpoints. It is important to note that stare decisis is not a feature of civil law systems, where judges' decisions are not binding in future cases with different parties.
The United States, England, and Ghana are examples of countries that follow common law systems and apply the principle of stare decisis. In the US, common law exists alongside civil law, and in England, it is still in effect despite the country also operating under a dual system of common and civil law. Ghana's modern-day Constitution, like those before it, has embraced English common law and the doctrine of judicial precedence based on stare decisis.
The use of judicial precedent in common law systems can be traced back to medieval England, where King Henry II sent judges to hear disputes throughout the country. These judges would resolve disputes based on their interpretation of customs, and their decisions were recorded and filed. Over time, the rule of stare decisis developed, whereby judges were bound to follow the decisions of earlier judges in similar cases.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs without the prerequisites of a marriage license or participation in a marriage ceremony. It is a marriage that results from the parties' agreement to consider themselves married, followed by cohabitation. The original concept of a "common-law" marriage is one that is considered valid by both partners but is not formally recorded with a state or religious registry or celebrated in a formal civil or religious service. Instead, the act of the couple representing themselves to others as being married and organizing their relationship as if they were married means they are married.
Community recognition of a marriage was largely what qualified it as a marriage in medieval Europe. Civil and religious officials typically took no part in marriage ceremonies and did not keep registries. There were several more or less formal ceremonies to choose from, as well as informal arrangements. It was relatively common for couples to cohabit with no ceremony; cohabiting for a moderate period was sufficient to make it a marriage.
In family law, a common-law marriage is a legal marriage, and in states that allow it, couples in a common-law marriage may have the same rights as a married couple who went through a formal marriage process. Generally, a married couple is considered common-law married when they live together for a period of time (although there is no statutory requirement for the length of time), hold themselves out to friends, family, and the community as "married", and have the legal right or "capacity" to marry. Both partners must intend to be married, and behave as a married couple.
Common-law marriage is recognized in seven US states and the District of Columbia, while nine states recognize it with some restrictions. It is not recognized in all jurisdictions, but those that do not will typically respect the validity of such a marriage lawfully entered in another state or country. In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. In the UK, a 2008 poll showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples. Common-law marriage does not exist in Scotland, although there was a type of irregular marriage called 'marriage by cohabitation with habit and repute' until 2006.
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Common law systems
Common law originated in England during the Middle Ages, in the centuries following the Norman Conquest in 1066. It was developed by King Henry II, who sent judges from his Curia Regis to hear disputes across the country, with their decisions recorded and filed. Over time, a rule emerged that a judge would be bound to follow the decision of an earlier judge if the cases shared similar facts. This became known as stare decisis, or precedent.
Today, common law forms the basis of the legal systems of many former British colonies, including the US, Canada, India, and Australia, and Ghana. The US operates under a dual system of both common and civil law, with the courts operating under common law. Common law is also still in effect in England, alongside civil law.
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Civil law systems
Unlike common law, civil law systems give less weight to judicial precedent. For example, the Napoleonic Code forbids French judges from pronouncing general principles of law, and there is no doctrine of stare decisis in the French civil law tradition. In some civil law jurisdictions, the judiciary cannot invalidate legislative provisions.
Civil law codes must be constantly updated because court precedents are not binding, and courts cannot act without a relevant statute. This distinguishes civil law from common law, where higher courts can overrule prior decisions and adapt to changes in society.
Several Islamic countries, like Egypt, have civil law systems that incorporate elements of Islamic law. The Egyptian Civil Code of 1810, based on the Napoleonic Code, integrates Islamic law principles to suit Egyptian society. The Japanese Civil Code also draws from various civil law traditions, including French and English common law.
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Frequently asked questions
The general principle that underlies the common law doctrine is stare decisis, which means "to stand by things decided".
In practice, stare decisis means that judges need to follow earlier decisions, rulings, and interpretations of the law when dealing with similar cases later.
Decisions made by higher courts, such as a jurisdiction's supreme court, are typically binding on lower courts in the same jurisdiction.
In common law systems, prior court decisions interpreting a statute are considered precedent and are therefore binding. In civil law systems, a judge's decision interpreting a code is not binding in later cases involving different parties.
