Gavin Howe
Pure common law systems, also known as judicial precedent, judge-made law, or case law, are legal systems that give great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law is deeply rooted in stare decisis, which means to stand by things decided, where courts follow precedents established by previous decisions. Many countries continue to rely on common law systems today, including the US, Canada, India, and Australia, and approximately one-third of the world's population lives in common law jurisdictions.
| Characteristics | Values |
|---|---|
| Origin | Roots in stare decisis ("to stand by things decided") |
| Originated in England during the Middle Ages | |
| Spread by the British Empire | |
| Many former colonies retain the common law system | |
| Basis | Based on judicial decisions rather than statutes |
| Judicial rulings made in previous similar cases are followed | |
| More malleable than statutory law | |
| Decisions of higher courts are binding on lower courts | |
| Recent decisions carry more weight | |
| Decisions of a court are binding only in a particular jurisdiction | |
| Decisions are based on several stages of research and analysis | |
| Promotes stability and consistency | |
| Efficient as judges need only follow precedent | |
| Adaptable to the unforeseen | |
| Flexible | |
| Contracts | Few provisions are implied into the contract by law |
| Extensive freedom of contract |
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What You'll Learn
Common law's origins
Common law is a legal system that gives great precedence to previous decisions by courts, which are used as guidelines for judges when interpreting current cases. This is in contrast to civil law systems, which are based more on statutes and legal codes. The common law system can be traced back to medieval England, where it emerged as a system of rules and principles created by the courts and applied to individual cases. Over time, these decisions were compiled and published, forming a body of law that became known as the "common law."
The origins of common law can be traced back to the early medieval period in England, following the Norman Conquest in 1066. Before this, local customs and traditions varied across the country, and there was no unified legal system. The Normans introduced a more centralized system of government and law, establishing royal courts that had jurisdiction across the kingdom. The early common law was heavily influenced by feudalism and the power of the monarch, with the king's courts having authority over the local feudal courts.
As the English legal system evolved, the common law became more sophisticated and comprehensive. Judges traveled around the country hearing cases, and their decisions were based on custom and precedent. These decisions were recorded and published, creating a growing body of law that applied across the entire kingdom. Over time, the power of the monarch decreased, and the common law became more independent, with judges interpreting and applying the law based on previous decisions and legal principles.
One of the key characteristics of the common law system is the concept of stare decisis, which means "to stand by things decided." This principle states that courts should follow previous decisions when faced with similar cases. Stare decisis provides consistency and predictability in the law, ensuring that similar cases are treated similarly. It also allows the law to evolve gradually, as courts can distinguish and refine previous decisions to adapt to changing social and economic conditions.
The common law system has had a significant influence on the legal systems of many countries around the world, particularly those that were formerly part of the British Empire. Today, pure common law systems can be found in countries such as England, Wales, and the United States, although no legal system is exclusively common law or civil law, as most jurisdictions have incorporated elements of both traditions. Common law systems value judicial decision-making, precedent, and the evolution of the law through court decisions, creating a flexible and adaptable legal framework.
In conclusion, the common law system has a rich history that can be traced back to medieval England. It evolved from a centralized system imposed by the Normans to an independent and sophisticated legal tradition. With its emphasis on stare decisis, the common law provides consistency and predictability while allowing for the gradual evolution of the law. Today, the influence of the common law system can be seen worldwide, shaping the legal landscapes of numerous countries.
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Stare decisis
Common law systems are legal systems that give great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". This doctrine holds that courts and judges should honour precedent, or the decisions, rulings, and opinions from prior cases. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.
The doctrine of stare decisis may result in the retention and spread of some instances that may have been incorrectly decided. There are cases where decisions have been made arbitrarily, and because of the doctrine of stare decisis, these cases will be given priority at the expense of a party that has been wronged. The stare decisis theory is regarded by some as a philosophy that runs counter to democratic ideals because it gives unelected judges the power to enact laws through their decisions.
There are two types of stare decisis: vertical and horizontal. Vertical stare decisis is the idea that the decisions of higher courts take precedence over the decisions of lower courts. This is deeply entrenched in the American legal system and is part of what makes the Supreme Court "supreme". Horizontal stare decisis holds that prior decisions made by courts at a particular appellate level should provide some precedent for cases heard by courts of the same appellate level.
While stare decisis is a foundational concept in the American legal system, it is not an "inexorable command". In the case of Seminole Tribe of Florida v. Florida, the U.S. Supreme Court explained that stare decisis may not be followed if prior decisions are "unworkable or are badly reasoned".
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Common law jurisdictions
Common law, also known as judicial precedent, judge-made law, or case law, is a legal system that gives great weight to precedent—judicial rulings made in previous similar cases. Common law originated in England during the Middle Ages and spread across the British Isles and to various colonies of the British Empire. Many former colonies, including the United States, Canada, India, and Australia, continue to rely heavily on common law when resolving legal disputes.
Legal systems that rely on common law as precedent are known as "common law jurisdictions". Common law jurisdictions are deeply rooted in stare decisis, which means "to stand by things decided". In practice, this means that courts follow precedents established by previous decisions. When a similar case has already been resolved, courts typically align their reasoning with the precedent set in that previous case. However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent.
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. The principles, analogies, and statements made by various courts are then considered to predict how the next court is likely to rule on the facts of the present case. More recent decisions and decisions made by higher courts carry more weight in this process. Finally, all the information is integrated, and the law is applied to the facts at hand.
Common law systems are more malleable than statutory law. Common law courts are not absolutely bound by precedent, and they can reinterpret and revise the law to adapt to new trends in political, legal, and social philosophy. This flexibility allows the law to change substantially over time without causing disruption. In contrast, the legislative process for creating statutory law is much more difficult and time-consuming.
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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. Many countries today, including the US, Canada, India, and Australia, continue to rely heavily on common law when resolving legal disputes. Common law systems are legal systems that give great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law is deeply rooted in stare decisis, which is a Latin phrase that roughly means "to stand by things decided". In common law systems, the decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. Common law is also more malleable than statutory law, as common law courts can reinterpret and revise the law without legislative intervention.
Civil law, on the other hand, is primarily rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with notable examples being France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law systems rely primarily on codes and statutes, and they are generally more prescriptive than common law systems. In civil law systems, there is typically a written constitution based on specific codes that enshrine basic rights and duties. While civil law judges tend to give less weight to judicial precedent, they do tend to follow previous judicial decisions.
In terms of contracts, common law systems tend to have fewer provisions implied into a contract, so it is important to set out all the terms governing the relationship between the parties in the contract itself. In contrast, civil law systems have many provisions implied into a contract, so less importance is placed on setting out all the terms in the contract. This often results in contracts in civil law systems being shorter than those in common law systems.
In summary, common law systems are more focused on judicial precedent and flexibility, while civil law systems are more reliant on codes and statutes and tend to be more prescriptive.
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Common law's advantages
Common law is a legal system that originated in England during the Middle Ages. It is a body of law primarily developed through judicial decisions, or case law, rather than statutes. Common law is deeply rooted in stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous decisions.
Stability and Consistency
Common law promotes stability and consistency because everyone involved knows that the outcome will be based on previous case law, not subjective personal viewpoints.
Efficiency
Judges in common law systems need only follow precedent when making decisions. This means court proceedings can be much shorter, saving time and money.
Adaptability
When lawmakers create statutes and rules, they cannot predict all the situations in which courts may need to apply the laws. Common law systems allow courts to address situations not originally predicted by lawmakers.
Flexibility
Common law is flexible and can respond to changes in society. Common law courts are not absolutely bound by precedent and can reinterpret and revise the law without legislative intervention. This means that over a decade or more, the law can change substantially but without sharp breaks, reducing disruptive effects.
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Frequently asked questions
A common law system is a legal system that gives great weight to judicial precedent and the style of reasoning inherited from the English legal system. It is deeply rooted in stare decisis, which means "to stand by things decided". Common law systems are more malleable than statutory law, and they are used by approximately one-third of the world's population.
Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous case law rather than subjective, personal viewpoints. It also allows for efficiency, as judges need only follow precedent when making decisions, so court proceedings can be shorter, saving everyone time and money.
Many former colonies retain the common law system today, including the United States, Canada, India, and Australia.
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