Gavin Howe
English common law, also known as case law, is a legal system that is used in many countries around the world today. It is a body of unwritten laws based on legal precedents established by the courts 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, where courts follow precedents established by previous decisions. English common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066, establishing a unified legal system that gradually replaced local folk courts and manorial courts.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| History | Common law originated in the practices of the courts of English kings following the Norman Conquest in 1066. |
| Geographic spread | Common law spread from England to Wales, Ireland, and overseas colonies, and was continued by the British Empire. Today, approximately one-third of the world's population lives in common law jurisdictions. |
| Influence on former colonies | Many former colonies, such as the United States, Canada, Australia, and India, retain the common law system. |
| Judicial precedent | Common law systems give great weight to stare decisis, or the principle that courts follow precedents established by previous decisions. |
| Judicial decision-making | Judges play a powerful role in common law systems, as they interpret and apply the law, and their written decisions create new law. |
| Relationship with civil law | Common law contrasts with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the procedures and punishments for offenses. |
| Flexibility | Common law is open to interpretation, which can be important as technology and society evolve. |
| Inspiration for legislation | Common law can inspire new legislation, as it reflects the institutionalized opinions and interpretations of judicial authorities and public juries. |
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What You'll Learn
Influence on former colonies
English common law has had a significant influence on the legal systems of many of its former colonies. English common law, which originated in the centuries following the Norman Conquest in 1066, established a unified legal system in England and gradually replaced local folk and manorial courts. As the British Empire expanded, it brought English common law to its colonies, including North America, South Africa, Australia, Asia, and Africa.
In the United States, all states except Louisiana have implemented reception statutes or adopted common law by judicial opinion. Louisiana's criminal law, on the other hand, is largely based on English common law, while its private law is influenced by civil law from continental Europe. Similarly, in Canada and Hong Kong, reception statutes were adopted, recognising English common law as the default law.
In the Indian subcontinent, the law of India, Pakistan, and Bangladesh are largely based on English common law due to the long period of British colonial rule during the British Raj. Ancient India had its own distinct legal traditions, such as the Arthashastra and the Manusmriti, but English common law became the dominant legal system during colonial times.
In some cases, English common law was adapted to local colonial circumstances. For example, in North America, the introduction of African slaves led to the implementation of laws regulating master-slave relations. In Australia, the colonizers adopted the practice of terra nullius, disregarding native land claims. However, in colonies with a significant indigenous population, such as India, local customary law was often handled by local judges, resulting in a form of legal pluralism.
Many former colonies continue to retain elements of the English common law system today, including the weight given to judicial precedent and the style of reasoning inherited from the English legal system. Approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.
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Precedent and stare decisis
Common law, which is deeply rooted in the doctrine of stare decisis, is a term with historical origins in the legal system of England. The term "common law" refers to the law that was common to all the king's courts across England. It originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.
Stare decisis, a Latin term that means "to stand by things decided" or "let the decision stand", is a foundational concept in the American legal system. It holds that courts and judges should honour "precedent"—the decisions, rulings, and opinions from prior cases. Respect for precedents gives the law consistency and makes interpretations of the law more predictable and less seemingly random.
The doctrine of stare decisis operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. For example, if the Seventh Circuit Court of Appeals adheres to the ruling of a previous Seventh Circuit Court of Appeals case, that would be horizontal stare decisis. Vertical stare decisis, on the other hand, is deeply entrenched in the American legal system and refers to the idea that the decisions of higher courts take precedence over the decisions of lower courts. For instance, if the Seventh Circuit Court of Appeals adhered to a previous ruling from the U.S. Supreme Court, that would be vertical stare decisis.
Judges are not always bound to follow precedent and stare decisis. In some cases, judges may offer reasons or legal nuances to avoid following precedential decisions or to outright overturn prior rulings, especially if the previous decisions are "unworkable or are badly reasoned", or if they are blatantly absurd or unjust.
The doctrine of stare decisis is also important in the context of common law. Common law is a legal system that gives great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law is derived from judicial decisions rather than from statutes or constitutions. It is deeply rooted in stare decisis, where courts follow precedents established by previous decisions. 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 a new precedent.
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Judicial interpretation
English common law, as a system, empowers judges to interpret and apply the law, giving them a very important role. This is because common law is derived from judicial decisions, also known as case law, rather than a strict legal code. It is a body of unwritten laws based on legal precedents established by the courts, with underlying rules that are derived from court decisions in individual cases. This is due to the absence of an official legal code, and so common law relies on detailed records of similar situations and statutes. The judge presiding over a case determines which precedents apply to that particular case, and this precedent is binding in lower courts.
The role of judges in common law is to apply both statutory law and established principles derived from the reasoning of previous decisions. This is in contrast to civil law, where the legislature has created a detailed set of rules to address specific situations. In common law, judges interpret and apply the law, and their decisions form the basis of evaluation for future cases. This is a key distinction between common law and civil law, where civil law is regularly updated, and the goal is to standardise codes to reduce bias and ensure consistent application.
Common law is so named because it was common to all the king's courts across England, originating in the practices of the English kings' courts in the centuries after the Norman Conquest of 1066. It established a unified legal system, gradually replacing local folk courts and manorial courts. The English legal system has influenced many former colonies, which retain the common law system today, and around one-third of the world's population lives in common law jurisdictions.
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Relationship with civil law
The English legal system is a common law system, which is distinct from a civil law system. Civil law is based on a code of laws, such as the Code Napoleon developed in France, and is founded on Roman law. In contrast, common law is a body of unwritten laws based on legal precedents established by the courts. English common law, therefore, draws from institutionalised opinions and interpretations from judicial authorities and public juries.
English law, as a common law system, is built upon case law. "Common law" refers to the judge-made law of the King's Bench, which superseded local folk courts and manorial courts. It is distinct from equity, which is the judge-made law of the now-defunct Court of Chancery. Equity is mainly concerned with trusts and equitable remedies.
Common law and civil law systems differ in their treatment of precedent. Common law systems place great weight on precedent, whereas civil law judges tend to give less weight to judicial precedent. For example, the Napoleonic Code expressly forbade French judges from pronouncing general principles of law. In some civil law jurisdictions, the judiciary does not have the authority to invalidate legislative provisions.
Another difference between the two systems is their approach to contract law. Civil law systems are generally more prescriptive than common law systems, with many provisions implied into a contract by law. In a common law system, there is generally more freedom of contract, with fewer provisions implied into the contract by law.
It is important to note that while English law is primarily a common law system, it has also been influenced by civil law. For example, most of its criminal law has been codified from its common law origins, and international treaties can have an effect on English law when adopted and ratified by an Act of Parliament. Additionally, some former colonies of England, such as New York, have retained elements of civil law, such as the Field Code applying to civil procedure.
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Murder as common law crime
Murder is an offence under the common law legal system of England and Wales. According to Blackstone, English common law identifies murder as a "public wrong". Common law considers murder to be malum in se, meaning an act that is evil within itself. The act of murder is considered wrong or evil by its very nature, and therefore does not require any specific detailing or definition in the law to be considered a crime.
The legal definition of murder, as defined by Sir Edward Coke, is "when a person of sound mind and discretion, unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought either express or implied". The actus reus of murder, therefore, consists of the unlawful killing of a human being in the King's peace. The mens rea of murder is malice aforethought, which has been interpreted by the courts as the intention to kill (express malice) or the intention to cause grievous bodily harm (implied malice).
The felony murder rule, abolished in the Homicide Act 1957, created murder offences in two cases: when manslaughter occurs during the course of a crime, it could be automatically reclassified by law as murder; and any deaths resulting from acts of a criminal during the crime could cause culpability as murder on the part of all fellow criminals. Some jurisdictions will only apply the felony murder rule if the death was caused by the felon or by someone acting as the felon's agent, known as the "agency rule".
Murder is generally defined in law as an intent to cause serious harm or injury, combined with a death arising from that intention. There are certain circumstances where a death will be treated as murder even if the defendant did not wish to kill the actual victim. This is called "transferred malice", and arises in two common cases: the defendant intended serious harm to one or more persons, but an unintended person died as a result; or the defendant harms someone other than the intended victim.
Modern statutes have taken the common law definitions of murder and divided them into first-degree, second-degree, and capital murder. The common law definitions of murder have essentially become the modern-day definitions of second-degree murder. First-degree murder and capital murder are creations of modern statutes and have no common-law equivalents.
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Frequently asked questions
English common law, or case law, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually replacing the local folk courts and manorial courts.
Common law is deeply rooted in stare decisis, which means "to stand by things decided". It is a body of unwritten laws based on legal precedents established by the courts. Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions.
Many former colonies, including the United States, Canada, Australia, New Zealand, and India, retain the common law system today. Approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.
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