Cecily Zamora
Common law, also known as judicial precedent, judge-made law, or case law, is a body of law primarily developed through judicial decisions rather than statutes. It originated in England during the Middle Ages, in the King's Court (Curia Regis), and has since been administered by the courts of England and influenced the legal systems of the United States and other commonwealth countries. Common law is based on precedent, where courts follow past rulings and decisions, and judges are empowered to resolve issues and establish new precedents. It is a flexible system that can respond to societal changes, with higher courts having the ability to overrule prior decisions.
| Characteristics | Values |
|---|---|
| Name | Common law, also known as case law, judicial precedent, judge-made law, or court-produced law |
| Origin | Originated in King's Court (Curia Regis) in medieval England |
| Basis | Based on legal precedents, judicial rulings made in previous similar cases, and institutionalised opinions and interpretations from judicial authorities and public juries |
| Flexibility | Flexible, as it can respond to changes in society and higher courts can overrule prior decisions |
| Application | Applied in civil cases to compensate someone for wrongful acts known as torts, and to recognise and regulate contracts |
| Procedure | The procedure practiced in common law courts is known as the adversarial system |
| Influence | Influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law |
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What You'll Learn
Common law is also known as case law or judge-made law
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law relies on the history of judicial decisions, or precedents, that form the basis of evaluation for future cases. This system promotes stability and consistency in the legal justice system.
Common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country near London. It was developed by King Henry II, who created a unified system of law "common" to the country by incorporating and elevating local customs to the national level. This ended local control and peculiarities, eliminated arbitrary remedies, and reinstated a jury system.
Common law is flexible and can respond to changes in society. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes. Instead, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act. This is because common law is based on casuistry, or case-based reasoning, rather than a comprehensive code of statutes.
While common law is derived from its original appearance in medieval England, it is still very much in effect in the US and elsewhere today. Several countries around the world, including the US, Canada, India, and Australia, continue to rely heavily on common law when resolving legal disputes.
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It is based on judicial decisions and precedent
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 England, and was developed on a case-by-case basis from court decisions.
Common law is deeply rooted in stare decisis, a Latin phrase that roughly translates to "to stand by things decided". Stare decisis refers to a history of judicial decisions that form the basis of evaluation for future cases. In other words, it is the idea that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later on. This system promotes stability and consistency in the legal justice system.
The form of reasoning used in common law is known as casuistry or case-based reasoning. It is a flexible system that can respond to changes in society. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes. Instead, higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers to do so.
The common law system started in England during the Middle Ages. It was institutionalised by King Henry II in 1154, who created a unified system of law "common" to the country. This was done by incorporating and elevating local customs to the national level, eliminating arbitrary remedies, and reinstating a jury system.
Today, several countries continue to rely heavily on common law when resolving legal disputes, including the US, Canada, India, and Australia.
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Common law is flexible and adaptable to unforeseen circumstances
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in England during the Middle Ages, following the Norman Conquest in 1066, and is still very much in effect in the US and elsewhere today.
For example, in the case of R (Soma Oil and Gas Ltd) v Director of the SFO, the judge perceived that the issues before him could not be justly dealt with by following legal precedent. He considered the economic consequences of a judgment that put legal principle before pragmatism and ultimately based his decision on fairness and equity rather than settled rules.
The flexibility of common law is particularly relevant in the context of evolving technology. As technology continues to play a growing role in our lives, common law's ability to leave the legal code open for interpretation will become increasingly important. For instance, much of the law of fraud, both civil and criminal, is the product of legal evolution in response to contemporary problems.
In addition, common law's adaptability to unforeseen circumstances is evident in its ability to address situations not originally predicted by lawmakers. This is especially relevant in the context of criminal investigations and prosecutorial decisions, where internal policing and prosecutorial extra-legal codes govern decision-making in the absence of formal laws.
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It promotes stability, consistency, and efficiency
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 was originally developed in England, and it is still very much in effect in the US and other countries today. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries.
Common law promotes stability and consistency in the US legal justice system. The system is based on stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law relies on detailed records of previous similar cases and statutes because there is no official legal code that can be applied to a case at hand. This means that judges can rely on past decisions and rulings, or precedents, to inform their current cases. This also allows for efficiency in the legal system, as judges can refer to past cases and rulings to quickly understand how to rule on a current case.
The presiding judge determines which precedents to apply in deciding each new case. In some instances, precedent depends on the case-by-case traditions of individual jurisdictions, so elements of common law may differ between districts. This can be seen in the example of common law marriage, also known as a non-ceremonial marriage, where couples are considered married without having formally registered their union. While common law is not common among the US, there are a number of states that have statutes or allow for common law marriage if certain requirements are met.
Common law is flexible, as it can respond to changes in society. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes, which can be time-consuming and inefficient. Instead, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act. This means that common law can adapt to changes in society and new interpretations of the law, promoting stability and consistency in the legal system.
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Common law systems are used in many former colonies
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in England following the Norman Conquest in 1066, gradually supplanting the local folk courts and manorial courts. England spread the English legal system to Wales, Ireland, and its overseas colonies, a practice continued by the later British Empire. Many former colonies, including the United States, Canada, India, and Australia, continue to rely heavily on common law when resolving legal disputes.
Common law is deeply rooted in stare decisis, a Latin phrase meaning "to stand by things decided". It is based on the principle that courts and judges should follow earlier decisions and rulings when dealing with similar cases later on. This promotes stability and consistency in the legal system, as lower courts are bound by the decisions of higher courts. However, lower courts can choose to deviate from precedents if they are outdated or if the current case is substantially different.
Common law is flexible and adaptable, allowing higher courts to overrule prior decisions as "bad law" without waiting for lawmakers to act. This flexibility enables common law to respond to changes in society and interpret the legal code accordingly. In contrast, civil law systems, which are typically used in former French, Dutch, German, Spanish, or Portuguese colonies, rely primarily on written codes and statutes. Civil law systems have clear rules and guidelines for judges to follow when ruling on specific disputes.
The procedure practiced in common law courts is known as the adversarial system, where two sides present their cases to a neutral judge. Common law also recognises common-law marriage, or non-ceremonial marriage, which allows couples to be considered married without formally registering their union.
In summary, common law systems are widely used in many former colonies, shaping the legal landscape of these countries and influencing the resolution of legal disputes.
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Frequently asked questions
Common law is a body of law based on court decisions rather than codes or statutes. It is also known as judicial precedent, judge-made law, or case law.
Common law relies on caselaw and legal precedent to guide decisions. When a similar case has been resolved, courts typically follow the precedent set in that decision.
Civil law systems, which originated in mainland Europe, rely primarily on codes and statutes. Civil law has clear rules for how judges need to rule for specific disputes, while common law is more flexible and can respond to changes in society.
Common law originated in England during the Middle Ages and is now used in several countries, including the US, Canada, India, and Australia.
