Kara Sears
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England, but it is still very much in effect in the US and elsewhere today. Common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Common law, on the other hand, is more flexible and can respond to changes in society. It promotes stability and consistency because everyone involved knows that the outcome will be based on previous case law rather than subjective viewpoints.
| Characteristics | Values |
|---|---|
| Origin | Medieval England |
| Current Use | US, Canada, India, Australia, Hong Kong, New Zealand, UK, and other former British colonies |
| Basis | Court decisions, not codes or statutes |
| Flexibility | More flexible than civil law |
| Precedent | Stare decisis, or "to stand by things decided" |
| Efficiency | Faster and more efficient than civil law |
| Consistency | More consistent than civil law |
| Stability | More stable than civil law |
| Judicial Authority | Gives great weight to judicial precedent |
| Reasoning | Inherits style of reasoning from the English legal system |
| Interpretation | Leaves legal code open for interpretation |
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What You'll Learn
Common law's roots in medieval England
Common law is derived from its original appearance in medieval England. England spread the English legal system across the British Isles, first to Wales, then to Ireland and overseas colonies, which was continued by the later British Empire. Many former colonies retain the common law system today.
The common law of medieval England has its roots in the 12th and 13th centuries. During this period, the criminal justice system relied on "trial by ordeal", which invoked divine intervention to determine a person's guilt or innocence. The accused would undergo a religious ceremony, including a short period of fasting and a religious service, before being subjected to a test. In the 12th century, this often took the form of the "ordeal of cold water", where the accused would be submerged in water to determine their guilt or innocence based on whether they floated or sank. Other ordeals included the trial by hot iron and boiling water, which involved the ritual infliction of injury.
In the early 13th century, there was a transition from trial by ordeal to a system that utilised juries to issue final felony verdicts. This change occurred after the Fourth Lateran Council in 1215, when the Catholic Church withdrew priests from administering trial by ordeal, forcing England to adopt a new method of proof. The trial jury for criminal cases was established during this time, marking a significant development in medieval English law.
The Magna Carta, a document created in 1215, also played a crucial role in the evolution of English common law. While the Magna Carta did not reflect the changes to criminal law regarding trial juries, it contained frequent references to the law and included protections for landowners and heirs of crown vassals. The document was a result of negotiations between the crown and different social groups, each seeking to protect their interests.
Medieval English legal texts, such as Ǣthelred’s Code from around 603, provide valuable insights into the legal system of the time. The Year Books, compilations of court cases from the 13th to 16th centuries, are considered principal sources for understanding the development of legal doctrines, concepts, and methods during this period.
The common law of medieval England laid the foundation for the legal systems of many countries today, influencing the way justice is administered and shaping the rights and protections afforded to individuals.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Common law's global influence
Common law, which first appeared in medieval England, continues to influence legal systems around the world. Many former colonies, including the United States, Canada, Australia, India, and Hong Kong, retain the common law system today. These common-law systems give significant weight to judicial precedent and the style of reasoning inherited from the English legal system.
Common law is a body of unwritten laws based on legal precedents established by the courts. It is more malleable than statutory law, as common law courts can reinterpret and revise the law without legislative intervention. This flexibility allows common law to adapt to new trends in political, legal, and social philosophy. For instance, common law can address the evolving landscape of technology and its growing presence in our lives.
The decisions of a court in a common law system are binding only in a particular jurisdiction. Within a given jurisdiction, some courts have more power than others. For example, appellate courts generally have more authority than lower courts in the same jurisdiction. Interactions between common law, constitutional law, statutory law, and regulatory law give rise to considerable complexity.
Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can be directly applied to a case. The judge presiding over a case determines which precedents apply. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. In some instances, common law can inspire new legislation.
While common law originated in England, it has spread globally and continues to shape legal systems in various countries. Its influence is particularly strong in former British colonies, contributing to the global influence of common law.
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Common law's flexibility
Common 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 derived from its original appearance in medieval England, and it is still very much in effect in the US and elsewhere today. Many former colonies retain the common law system today, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
Common law is more flexible than statutory law. Common law courts are not absolutely bound by precedent, but can reinterpret and revise the law to adapt to new trends in political, legal, and social philosophy. The common law evolves through a series of gradual steps, allowing the law to change substantially over time without causing disruption. This flexibility is particularly important as technology continues to grow and change our lives, as common law's ability to leave the legal code open for interpretation will become increasingly important.
The flexibility of common law is also evident in its ability to respond to unforeseen cases, situations, and facts that were not anticipated by legislators. Judges play an active role in interpreting how the law applies to specific cases, shaping the law through their rulings and interpretations. This allows for a more flexible legal system, as judges can respond to future cases and ensure consistency in the legal system.
However, it is important to note that common law is reactive rather than proactive. Courts can only change common law after the fact and cannot proactively change the law of their own accord. They are dependent on cases being brought before them and are limited by the resources available to fully consider changes to the common law.
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Common law vs civil law
Common law and civil law are the two main types of legal systems in the world. Common law, also known as case law, is a system that gives significant weight to judicial precedent and the style of reasoning inherited from the English legal system. It is a body of unwritten laws based on legal precedents established by the courts and is more malleable than statutory law. Common law recognises prior court decisions as legally binding precedent and draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common law is derived from its original appearance in medieval England and is practised in the US, the UK, Australia, Canada, Hong Kong, India, and New Zealand, among other places.
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 including France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is characterised by its reliance on legal codes that function as the primary source of law. It is generally more prescriptive than common law, with a clear definition of the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Civil law is the most common legal system in the world, practised in about 150 countries.
One key difference between the two systems is their approach to precedent and written decisions as a source of law. Common law places great importance on precedent, recognising prior court decisions as legally binding. In contrast, civil law judges tend to give less weight to judicial precedent, with codes serving as the primary source of law. Common law is also more flexible, allowing for reinterpretation and revision of the law without legislative intervention to adapt to new trends.
Another distinction is the level of prescription. Civil law is generally more prescriptive, providing a comprehensive set of legal statutes that clearly outline the parameters of the law. Common law, being less prescriptive, may require additional legislation to protect citizens' rights or address specific issues, such as prohibiting a service provider from cutting off utilities for non-payment.
In terms of contracts, civil law implies various provisions into a contract, whereas common law has few implied provisions, emphasising the need to set out all terms governing the relationship between the parties within the contract itself. This often results in longer and more detailed contracts in common law jurisdictions.
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Common law in the US
Common law, also referred to as case law, is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England and was spread across the British Isles by the English, who later continued this process across the globe as the British Empire. Many former colonies, including the United States, continue to retain this common law system today.
In the US, the common-law system evolved from British traditions that spread to North America during the 17th and 18th centuries. Common law is practised in several other countries, including Australia, Canada, and India. In the American legal system, common law rules were initially based on English common law. Over time, the US legal system matured, allowing for the creation of its own common law rules through direct precedent or by drawing analogies with comparable areas of decided law.
In the US, common law is made by judges, particularly those in the Supreme Court and state supreme courts. Federal and state appellate courts can also create common law if the issue has not yet been addressed by their supreme court. Trial court judges are required to follow the common law set by the Supreme Court, their state supreme court, and the appellate court in their geographic area.
Common law is more malleable than statutory law. While common law courts are not strictly bound by precedent, they can reinterpret and revise the law without legislative intervention, adapting to new trends in political, legal, and social philosophy. This evolution of common law occurs gradually over a decade or more, reducing disruptive effects. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries, and it sometimes serves as the inspiration for new legislation.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts.
Common law originated in England during the Middle Ages.
Common law is derived from judicial decisions instead of statutes.
Many countries use common law, including the US, Canada, India, Australia, and the UK.
Common law promotes stability, consistency, and efficiency. It is also flexible and can adapt to changes in society.
