Cecily Zamora
Common law, also known as case law, 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 deeply rooted in stare decisis, a Latin phrase that roughly means to stand by things decided. In common law systems, judgement enforcement is regulated by administrative divisions such as provinces, territories, or federated states. A judgement is a court's formal ruling, and it may state that the successful party has a right to recover money or property. For example, a default judgement is when the defendant fails to appear before the court or submit a defence, and grants the relief requested by the appearing party.
| Characteristics | Values |
|---|---|
| Basis | Court decisions, not codes or statutes |
| Sources | Precedent, policy judgment drawn from economics, social sciences, business, decisions of foreign courts, etc. |
| Other names | Judicial precedent, judge-made law, case law |
| Nature of the law | Unwritten |
| Type of legal system | Common law systems and civil law systems |
| Influence | Decisions in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law |
| Benefits | Stability, consistency, efficiency, adaptability, flexibility |
| Judgement or judgment | Judgement is the British spelling, judgment is the American spelling |
| Judgement definition | Decisions made by judges in a court of law |
| Default judgement | Relief granted to the appearing party when the defendant fails to appear before the court |
| Interlocutory judgement | An intermediate judgement that provides a temporary decision |
| Reserved judgement | A judgement that is not given immediately after the conclusion of the hearing or trial |
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What You'll Learn
Common law vs civil law
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". Common law originated in the practices of the English king's courts following the Norman Conquest and was spread to North America during the colonial period. It is now practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and several former British colonies or protectorates.
Common law decisions reflect precedent and policy judgments drawn from economics, the social sciences, business, decisions of foreign courts, and other fields and jurisdictions. In a "case of first impression", where no precedent exists, judges are empowered to resolve the issue and establish a new precedent. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries, and it sometimes influences new legislation.
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 disseminated in the 19th century, particularly with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is the world's most common legal system, practised in about 150 countries.
Unlike common law, civil law relies primarily on legal codes as its source. Civil law is generally more prescriptive than common law, providing clear definitions of cases that can be brought to court, procedures for handling claims, and punishments for offences. Judicial authorities in a civil law system use the applicable civil code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the goal of standardized codes is to create order and reduce bias in the application of laws.
In summary, the key difference between common law and civil law is the role of written decisions and precedent. Common law systems heavily emphasize precedent, while civil law judges tend to give less weight to judicial precedent. Common law is less prescriptive, requiring all terms of a contract to be explicitly stated, whereas civil law implies certain provisions into contracts and places less importance on setting out all terms in the contract itself.
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Common law marriage
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, which means "to stand by things decided". Here, courts follow precedents established by previous decisions.
Common-law marriage, also known as a non-ceremonial marriage, is a legal framework that may allow couples to be considered married without having formally registered their union as either a civil or religious marriage. Common-law marriage is a marriage that takes legal effect without the prerequisites of a marriage license or participation in a marriage ceremony. The marriage occurs when two people who are legally capable of being married and intend to be married, live together as a married couple, and hold themselves out to the world as a married couple.
In family law, common-law marriage is a legal marriage and an informal marriage. This means that the married couple never had a formal wedding ceremony and never got a marriage license or marriage certificate. In states that allow common-law marriage, couples in a common-law marriage still might 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 (cohabitation), behave as a married couple, and hold themselves out to friends, family, and the community as "married".
However, it is important to note that not all jurisdictions permit common-law marriage, and the term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation or other legally formalized relations. While common law is not common in the U.S., there are a few states that have statutes or allow for common-law marriage if certain requirements are met.
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Common law in the US
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, which means "to stand by things decided". Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is largely based on precedent—judicial rulings made in previous similar cases.
In the United States, common law evolved from a British tradition that spread to North America during the 17th and 18th centuries. While the U.S. has many common law states, none of its common law systems are technically pure common law systems. This is because the U.S. and its states have countless codified statutes that courts must consider. However, one constant in U.S. common law legal systems is the principle of stare decisis. This means that even if a common law court is interpreting a statute and not applying common law, prior court decisions interpreting that same statute are considered precedent and therefore binding.
Common law decisions today reflect both precedent and policy judgment drawn from economics, the social sciences, business, decisions of foreign courts, and other fields. At the state level, legislatures often codify common law rules from the courts of their state, either to give the rule the permanence of a statute, to modify it, or to replace it entirely with legislation. For example, in 2018, the California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court articulated a three-part test for determining whether California workers were independent contractors or employees. The California Legislature responded by creating a new section of the Labor Code, which codified and expanded on the Dynamex holding.
Common law is not common among the U.S., but a number of states have statutes or allow for common law marriage if certain requirements are met. A common law marriage, also known as a non-ceremonial marriage, is a legal framework that may allow couples to be considered married without having formally registered their union as either a civil or religious marriage.
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Default judgments
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, which means "to stand by things decided". In other words, common law is largely based on precedent—judicial rulings made in previous similar cases.
In the United States, the law relating to a default judgment depends on the jurisdiction within which the civil action was filed. State courts, Federal Courts, Tribal Courts, and many Administrative Agencies have their own laws and local procedural rules relating to the granting and setting aside of a default judgment. Federal Rule 37(b)(2)(v) states that a person who fails to appear as required in court can be found in default. Plaintiffs must sign an affidavit, under oath and penalty of perjury, confirming that the defendant was properly served and still failed to appear.
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Plurality opinion
In the context of a common-law judgement, a "plurality opinion" refers to a judicial opinion that does not reflect a common view or consensus among the majority of judges deciding a case. While it may have precedential value in terms of the ruling, it does not carry the same weight as a majority opinion and is not considered binding.
A plurality opinion occurs when a majority of the judges cannot agree on a common rationale for their decision. Instead, multiple rationales may be provided, each supported by a subset of the judges. In other words, a plurality opinion represents the view of the largest group of judges who agree on a particular rationale, even if that group does not constitute a majority.
In a plurality opinion scenario, the court's decision is still reached by a majority vote, but the underlying reasoning is fragmented. This means that while the outcome of the case sets a precedent, the specific rationale behind it may not be as influential or authoritative in subsequent cases. However, it is important to note that the rationale of a plurality opinion can still be referenced and may carry some weight in future legal decisions.
The concept of plurality opinions highlights the complexity of the common-law system and the challenges of reaching a unified consensus in certain cases. It also underscores the importance of evaluating each case on its own merits and the potential for diverse interpretations of the law.
In contrast to a plurality opinion, a "majority opinion" is a judicial opinion joined by more than half of the judges deciding a case. This represents a consensus view and carries more weight as a precedent for future cases. Additionally, there are concurring opinions, where an appellate judge who voted with the majority provides their separate opinion, possibly highlighting a different rationale for their agreement with the decision. Dissenting opinions, on the other hand, are the separate opinions of appellate judges who disagreed with the majority decision, explaining their disagreement.
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