Cameron Miranda
Common law, also known as case law or judge-made law, is the body of law developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which means to stand by things decided, where courts follow precedents established by previous rulings. Statutes, on the other hand, are written laws created by legislative bodies such as Parliament. They are subject to interpretation and can be overturned or changed if found unconstitutional. Statutes can codify common law, create new causes of action, or overrule common law. Common law and statutes interact and sometimes conflict, with statutes typically superseding common law. Canada, for example, has both common law and civil law systems, with Quebec primarily following a civil law system based on statutes.
| Characteristics | Values |
|---|---|
| Definition | Common law is a "body of law" based on court decisions rather than codes or statutes. |
| Basis | Court decisions, also known as caselaw, legal precedent, stare decisis, or judge-made law. |
| Sources | Records of similar situations and statutes. |
| Flexibility | More flexible than statutory law, as it can respond to changes in society. |
| Adaptability | Can address unforeseen situations not predicted or legislated by lawmakers. |
| Efficiency | Court proceedings can be shorter, saving time and money. |
| Jurisdiction | Decisions are binding only in a particular jurisdiction. |
| Complexity | More complicated than civil law systems. |
| Interpretation | Resists standard methods of statutory interpretation. |
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What You'll Learn
Common law is based on past judicial opinions
Common law, also known as case law, is a body of law based on past judicial opinions and previous court decisions, rather than codes or statutes. It is deeply rooted in stare decisis, a Latin term that means "to stand by things decided". In other words, common law requires courts and judges to follow past rulings, or caselaw, when dealing with similar cases in the future. For instance, if a court has ruled on a particular issue based on a specific set of facts, that ruling is considered binding in future cases that involve the same or closely related issues.
The common law system is notably different from civil law systems, which are prevalent in mainland Europe and rely primarily on codes and statutes. In contrast, common law is more flexible and adaptable to unforeseen situations, as it is not restricted by written laws or codes. This flexibility allows common law to respond to societal changes and evolve over time.
The process of determining "what the law is" in a given situation under common law involves several stages of research and analysis. It requires identifying the facts, locating relevant statutes and cases, extracting principles and statements from various courts, and then applying that understanding to the facts at hand. This process can be complex and time-consuming, and it may involve interpreting and weighing multiple sources of information.
While common law is based on past judicial opinions, it is important to note that it is not static. Lower courts have the power to deviate from or modify precedents if they are outdated or not closely related to the current case. Additionally, higher courts can overrule previous decisions as "bad law", reflecting the evolving nature of common law.
Common law has a long history and is practised in various parts of the world, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. It has shaped legal traditions and influenced the development of new legislation. However, it is essential to acknowledge that common law has also contributed to the marginalization and disempowerment of certain groups, particularly in the past, and efforts have been made to address these injustices.
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Statutory law is based on current statutes
Common law is a body of law based on past judicial decisions and legal precedents rather than codes or statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, common law requires that courts and judges follow past rulings, also known as caselaw, when dealing with similar cases in the future. Common law is flexible and adaptable, allowing higher courts to overrule past decisions as "bad law" without waiting for lawmakers to act. It is also efficient, saving time and money by allowing judges to rely on precedent when making decisions.
Statutory law, on the other hand, is based on current statutes or written laws. Also known as civil law, it is a comprehensive, codified set of legal statutes created by legislators. Civil law systems clearly outline the procedures for handling claims and the punishments for offences, providing judges with specific rules to follow when ruling on disputes. Unlike common law, civil law is strict in its application and is not subject to the same interpretation, as the statute means exactly what it says.
While common law systems rely on caselaw and legal precedent, civil law systems primarily rely on codes and statutes. Civil law originated in mainland Europe and is centred around a comprehensive code of statutes that govern legal disputes. In a civil law system, a judge's decision is not binding in other cases, even if the facts are similar.
Statutory law is flexible in that it can be renewed after expiration to remain relevant and reasonable to those it protects and regulates. Additionally, statutes can be overturned or changed if a later legislative body finds them unconstitutional.
Common law and statutory law interact in complex ways. Statutes may codify existing common law, create new causes of action, or overrule common law. While common law is not common in the US, some states have statutes that allow for common-law marriage if certain requirements are met.
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Common law is deeply rooted in stare decisis
Common law is a body of law based on court decisions or judicial precedent rather than codes or statutes. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In other words, stare decisis is the legal principle that courts and judges need to follow past decisions and rulings, also known as case law, when dealing with similar cases in the future.
For example, if a court makes a ruling based on a specific set of facts, that ruling is required to be followed if a similar issue arises in the future. Similarly, decisions made by higher courts are typically binding on lower courts in the same jurisdiction. This is in contrast to civil law systems, where judges' decisions are not binding in future cases, even if the facts are similar.
The common law system is adaptable to unforeseen situations as it can address situations not originally predicted by lawmakers. It is also flexible, as higher courts can overrule prior decisions without waiting for lawmakers to do so. This is because common law does not require lawmakers to pass changes in statutes and codes, which can be time-consuming or may never happen.
Common law and stare decisis are deeply interconnected. Even in the interpretation of statutes, prior court decisions interpreting the same statute are considered precedent and therefore binding. This is a significant difference between common law and civil law systems, where there are clear rules for judges to follow for specific disputes.
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Common law is flexible and adaptable
Common law is a body of law based on judicial decisions and legal precedents. It is deeply rooted in stare decisis, a Latin term that means "to stand by things decided". In other words, common law requires courts and judges to follow earlier decisions and rulings, or caselaw, when dealing with similar cases in the future.
Secondly, common law is flexible in its application. While it provides a basis for future rulings, it allows for interpretation and does not restrict judges to a strict set of written laws. This flexibility enables judges to create new legal rules in a policy-driven manner, making the law more responsive to democratic preferences. For example, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedents.
Additionally, common law is adaptable in that it can be modified or deviated from in certain circumstances. Lower courts can choose to modify or deviate from precedents if they feel the precedent is outdated or not closely related to the case at hand. While this is a rare occurrence, it demonstrates the adaptability of common law to changing circumstances and societal evolution.
Overall, the flexibility and adaptability of common law lie in its ability to respond to societal changes, empower judges to create new rules, and allow for interpretation and modification of precedents when necessary.
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Common law is derived from judicial decisions
Common law is a body of law that is derived from judicial decisions or precedents, rather than statutes or the constitution. It is deeply rooted in the principle of stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law requires that judges follow earlier decisions and rulings, or case law, when dealing with similar cases in the future. For instance, if a court rules on a particular issue based on a specific set of facts, that ruling is binding in future cases that involve the same or closely related issues.
The common law system is used in many countries around the world, including the United States, India, Australia, Canada, Hong Kong, New Zealand, and the United Kingdom. It originated in the practices of the courts of the English kings following the Norman Conquest and was later exported to North America during the colonial period. In the US, common law rules were initially based on English common law, but over time, the American legal system developed its own common law rules through direct precedent or by analogy to comparable areas of decided law.
Common law is often contrasted with civil law, which originated in mainland Europe and is a comprehensive, codified set of legal statutes created by legislators. Civil law systems provide clear rules for judges to follow when ruling on specific disputes, and court decisions are not binding in other cases, even if the facts are similar. On the other hand, common law systems are more flexible and adaptable, as they can address situations not originally predicted by lawmakers and respond to changes in society. For example, higher courts in common law systems can overrule prior decisions as "bad law" without waiting for lawmakers to act.
One advantage of common law is efficiency, as judges need only follow precedent when making decisions, which can result in shorter court proceedings and save time and money. Additionally, common law promotes stability and consistency, as outcomes are based on previous case law rather than subjective viewpoints. However, the reliance on precedent in common law systems can also lead to the marginalization or disempowerment of certain groups, as outdated or biased past decisions 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 is a body of law based on past judicial opinions and court decisions rather than codes or statutes. It is also known as case law or judge-made law.
A statute is a written law created by a legislative body. Statutes are typically codified and compiled into a comprehensive code that outlines procedures and punishments for various offences.
Common law relies on legal precedent and judicial rulings made in previous similar cases to guide future decisions. Statutory law, on the other hand, is based on current statutes and written laws created by legislators. Common law is more flexible and adaptable, while statutory law provides clear rules for judges to follow.
Stare decisis is a Latin phrase that means "to stand by things decided". It is a key principle in common law, where courts and judges are required to follow earlier decisions and rulings, also known as precedent, when dealing with similar cases.
Yes, common law and statutory law can interact and influence each other. Statutes can supersede or codify common law, create new causes of action, or legislatively overrule common law. Common law can also inspire new legislation and influence the interpretation of statutes.
