Gavin Howe
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin phrase that roughly means to stand by things decided. In common law systems, judges decide cases by interpreting statutes and applying precedents that record how and why past similar cases have been decided. The decisions of higher courts are binding on lower courts, and lower courts must follow these precedents unless they are outdated or the current case is substantially different. Common law is used in several countries, including the United States, the United Kingdom, Australia, Canada, and India. It is one of the two main legal systems in the world, alongside civil law.
| Characteristics | Values |
|---|---|
| Basis | Judicial decisions and rulings in previous similar cases |
| Sources | Institutionalized opinions and interpretations from judicial authorities and public juries |
| Purpose | To establish consistent outcomes by applying the same standards of interpretation |
| Benefits | Stability, consistency, efficiency, adaptability, flexibility |
| Drawbacks | Past decisions may be outdated or biased, marginalizing certain groups |
| Scope | Common law systems are used in the US, UK, Australia, Canada, Hong Kong, India, New Zealand |
| Applications | Contract law, law of torts, negligence, criminal proceedings, family law |
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What You'll Learn
Judges interpret statutes and apply precedents
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin term that means "to stand by things decided". This means that judges interpret statutes and apply precedents from previous rulings when deciding a new case.
In common law, judges interpret statutes and apply precedents by first ascertaining the facts of the case. This involves determining the relevant statutes and cases, as well as extracting the principles, analogies, and statements made by various courts. Recent decisions and those of higher courts or legislatures are typically given more weight. By integrating all this information, judges can interpret the law and determine how it applies to the specific facts of the case before them.
When interpreting statutes, judges consider the legislative intent and purpose behind the law, as well as the specific language used. They may also refer to legal encyclopaedias, academic writings, and the work of law reform bodies to guide their interpretation. In some cases, judges may also interpret fundamental laws, such as constitutions, and agency regulations.
Applying precedents involves searching for past decisions from similar cases. These past decisions are known as case law or precedent, and judges are bound to follow them under the principle of stare decisis. This ensures consistency and stability in the legal system. However, lower courts may modify or deviate from precedents if they are outdated or if the current case differs significantly.
In some situations, there may be no clear precedent or legislative guidance. In these "cases of first impression", judges have the power to resolve the issue and establish new precedents. This flexibility allows common law to adapt to changes in society and address unforeseen situations not predicted or addressed by existing statutes.
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The role of juries
In common law, judges are tasked with determining which precedents to apply to a particular case. They do this by searching for past decisions from similar cases, known as case law or legal precedent. These past decisions guide their rulings on the current case. Judges are bound by stare decisis, a Latin phrase meaning "to stand by things decided" or "let the decision stand". This means they must follow the precedent set by previous rulings, particularly those of higher courts, to ensure consistency in the law.
In this way, juries play a crucial role in the development of common law by contributing to the pool of institutionalized opinions and interpretations that judges draw upon when making their rulings. The decisions made by juries, along with those of the judges, form the basis of evaluation for future cases. This ensures that the law remains flexible and adaptable to changes in society, as common law can respond to new situations and challenges that may not have been predicted by lawmakers.
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Common law vs civil law
There are two main types of legal systems in the world: common law and civil law. Common law is a body of unwritten laws based on legal precedents established by the courts. It is largely based on precedent, or stare decisis, which means "to stand by things decided". In common law, judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. It is deeply rooted in the practices of the courts of English kings following the Norman Conquest and is practised today in the UK, US, Canada, Australia, New Zealand, India, and Hong Kong.
In common law systems, precedents are maintained over time through court records, with past decisions continuing to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This can make it difficult for marginalised groups to pursue favourable rulings. Common law is less prescriptive than civil law, with fewer provisions implied in a contract, and generally permits anything that is not expressly prohibited by law.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was comprehensively codified starting in the 19th century with, for example, France's Napoleonic Code. It is characterised by its reliance on legal codes as the primary source of law, rather than judicial precedent. Civil law is generally more prescriptive than common law, with more importance placed on the provisions implied in a contract, and clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence.
In a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts. In many civil law countries, a separate administrative law governs PPP arrangements.
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Common law in practice
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is deeply rooted in stare decisis, a Latin phrase meaning "to stand by things decided", where courts follow precedents established by previous decisions.
In common law systems, 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 jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then, one must extract the principles, analogies, and statements by various courts to determine how the next court is likely to rule on the facts of the present case. Finally, one integrates all the lines drawn and reasons given and determines "what the law is".
When judges use common law, they search for past decisions from similar cases. These past decisions are known as precedents. Trial judges follow these precedents to help ensure that the law is constant. Decisions of higher courts become a binding precedent for lower courts within their geographic region. Lower courts must follow binding precedents. All courts must follow any binding precedent decisions made by the U.S. Supreme Court. Trial court judges must also follow binding precedent decisions by the appellate court in their geographic area.
Common law still has practical applications in some areas of law, such as contract law and the law of torts. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. Common law has also been described as flexible, as it can respond to changes in society.
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The creation of common law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the Latin phrase stare decisis, which means "to stand by things decided". This means that judges in common law cases are bound by past decisions, or precedents, made by higher courts when dealing with similar cases.
Common law originated in the practices of the courts of English kings in the centuries following the Norman Conquest. It was common to all the king's courts across England and was later spread to North America during the colonial period of the 17th and 18th centuries. The United States federal courts relied on private publishers for law reports until after the Civil War, only beginning government publication in 1874.
Common law is based on precedent, or stare decisis, and judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply when deciding each new case. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
Common law is created when judges decide cases and write opinions explaining their decisions. The U.S. Supreme Court and state supreme courts create most common law, but federal and state appellate courts also create common law when an issue has not yet been decided by their supreme court. Common law is often used in contract law and the law of torts, and it can be flexible and adaptable to unforeseen situations.
Common law has been criticised for its potential to marginalise or disempower certain groups, as past decisions can continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
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Frequently asked questions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Judges search for past decisions from similar cases and use these precedents to guide their decisions.
Civil law systems rely primarily on codes and statutes, while common law systems rely on caselaw and legal precedent. Civil law has clear rules for how judges need to rule for specific disputes, while common law is based on the interpretation of statutes and application of precedents.
Common law still has practical applications in areas such as contract law, the law of torts, and negligence. Common law marriage, also known as a non-ceremonial marriage, is another example where couples may be considered married without having formally registered their union.
Common law promotes stability and consistency in the legal system as it is based on previous caselaw rather than subjective viewpoints. It also allows for adaptability and flexibility as it can address situations not originally predicted by lawmakers and respond to changes in society.
