Keith Mack
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that originated in medieval England and has since spread to several other countries, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the
| Characteristics | Values |
|---|---|
| Definition | A body of unwritten laws based on legal precedents established by the courts |
| Basis | Court decisions rather than codes or statutes |
| Origin | Medieval England |
| Current usage | US, UK, Australia, Canada, Hong Kong, India, New Zealand, and several other countries |
| Strength | Reliance on judicial opinion |
| Types of actions | In rem (actions against a thing or property), in personam (actions directed against a person) |
| Common-law marriage | Acknowledges similar rights as those with a marriage license to couples that are not officially married if several conditions are met |
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What You'll Learn
Common law is a body of unwritten laws
Common law 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 rely on caselaw and legal precedent to guide their decisions, in contrast to civil law systems, which rely primarily on codes and statutes. The two main legal systems used today throughout the world are common law and civil law systems.
Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. In the US, common law is one of two parallel systems of law that survived well into the 20th century. The other system is equity, which involves fashioning a remedy to fit the situation, including injunctive relief, and is heard by a judge.
The reliance on judicial opinion is a strength of common law systems, and it is a significant contributor to the robust commercial systems in the United Kingdom and United States. Common law allows parties, especially commercial parties, to predict whether a proposed course of action is likely to be lawful or unlawful, providing some assurance of consistency. This ability to predict gives more freedom to come close to the boundaries of the law.
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Common law is based on legal precedents
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law and relies on stare decisis, a Latin phrase that roughly translates to "to stand by things decided". In other words, common law requires that courts and judges follow past decisions and rulings when dealing with similar cases in the future. This means that if a court has made a particular decision based on a specific set of facts, it is required to follow that decision if faced with the same or a similar issue in the future. Similarly, decisions made by higher courts are typically binding on lower courts in the same jurisdiction.
Common law is distinct from civil law, which is the other main legal system used throughout the world. Civil law, which originated in mainland Europe, relies primarily on codes and statutes. It centres around a comprehensive code of statutes that clearly outlines everything from the procedures for handling claims to the punishment for offences. Civil law systems have clear rules for how judges need to rule in specific disputes, and court decisions are not binding in other cases, even if the facts are similar.
Common law, on the other hand, places an emphasis on precedent while allowing some freedom for interpretation. This allows the law to be adapted to situations that were not contemplated at the time by the legislature. Common law is derived from its original appearance in medieval England and is still very much in effect in the US and elsewhere today. It is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States.
The reliance on judicial opinion is a strength of common law systems, and it is a significant contributor to the robust commercial systems in the United Kingdom and United States. Because there is reasonably precise guidance on almost every issue, parties can predict whether a proposed course of action is likely to be lawful or unlawful. This ability to predict gives more freedom to come close to the boundaries of the law, such as in the creation of more economically efficient commercial contracts.
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Common law is influenced by judicial decisions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that originated in medieval England and is now in effect in the US and several other countries. Common law places an emphasis on precedent while allowing some freedom for interpretation. This means that the law can be adapted to situations that were not contemplated at the time by the legislature.
The reliance on judicial opinion is a strength of common law systems and contributes to the robust commercial systems in the United Kingdom and the United States. Because there is reasonably precise guidance on almost every issue, parties can predict whether a proposed course of action is likely to be lawful. This predictability gives more freedom to come close to the boundaries of the law. For instance, many commercial contracts are more economically efficient and create greater wealth because the parties know ahead of time that the proposed arrangement is almost certainly legal.
Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common laws sometimes prove the inspiration for new legislation to be enacted. For example, after the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law.
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Common law vs civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that originated in medieval England and spread to North America during the colonial period. Common law is practised in several countries, including the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand. It is characterised by its reliance on judicial precedent and allows some freedom for interpretation.
Under the common law system, courts and judges are required to follow previous decisions and rulings, known as stare decisis or caselaw, when dealing with similar cases. This means that higher court decisions are typically binding on lower courts in the same jurisdiction. Common law also provides flexibility, allowing the law to be adapted to situations not contemplated by the legislature at the time. For instance, common-law marriage acknowledges similar rights to married couples for couples that are not officially married if certain conditions are met.
Civil law, on the other hand, is a legal system rooted in the Roman Empire and later disseminated in the 19th century, notably with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. It is the world's most common legal system, practised in about 150 countries. Civil law is primarily characterised by its reliance on comprehensive legal codes that function as the primary source of law. These codes outline procedures for handling claims and punishments for offences. Civil law is generally more prescriptive than common law, providing clear rules for judges to follow in specific disputes.
The two legal systems differ in their treatment of judicial precedent. While common law systems heavily emphasise precedent, civil law judges tend to place less weight on it. Civil law decisions are not binding in other cases, even if the facts are similar. In contrast, common law systems aim to provide reasonably precise guidance on most issues, allowing parties to predict the legality of their actions and plan accordingly.
In summary, common law and civil law are the two main legal systems in the world, with most countries adopting features from one or both. Common law is a flexible system based on judicial precedent and unwritten laws, while civil law relies on comprehensive written codes and is more prescriptive in nature.
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Common law and marriage
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law and relies on stare decisis, a Latin term for following past decisions and rulings in similar cases. Common law is derived from medieval England, but today, several countries, including the US and UK, operate under a dual system of both common and civil law.
Common-law marriage, also known as non-ceremonial marriage, is a marriage that takes legal effect without a marriage license or a ceremony. It occurs when two people who intend to be married and are legally capable of doing so, live together as a married couple and present themselves as such. The original concept of common-law marriage is one that is considered valid by both partners but is not formally recorded with a state or religious registry.
The purpose of common-law marriage is to distinguish committed couples who are unable or unwilling to obtain a wedding license for various reasons. It provides similar rights to those with a marriage license, including property rights in divorce. Common-law marriage allows couples to enjoy the benefits of marriage without the need for a formal ceremony or license.
However, it is important to note that not all jurisdictions permit common-law marriage. While some provinces in Canada may grant couples in marriage-like relationships similar rights and responsibilities as married spouses, they are not legally considered married. In Scotland, common-law marriage does not exist, although there was a form of irregular marriage called 'marriage by cohabitation with habit and repute' until 2006.
The concept of common-law marriage highlights the flexibility of common law, allowing for the adaptation of the law to situations not previously contemplated by the legislature.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law.
Common law relies on caselaw and legal precedent to guide court rulings when the outcome is undetermined based on written rules of law.
The concept of common-law marriage, which grants similar rights to married couples to those that are not officially married if several conditions are met.
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