Cecily Zamora
Common law, also known as case law or judge-made law, is a body of law 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. This means that judges rely on previous rulings, or case law, to make decisions in similar cases. Common law is primarily developed through judicial decisions rather than statutes, and is flexible in that it can respond to changes in society. It originated in England during the Middle Ages and is still in effect in the US and other countries today.
| Characteristics | Values |
|---|---|
| Definition | A body of unwritten laws based on legal precedents established by the courts. |
| Sources | Draws from Anglo-Saxon traditions, canon law, and Norman customary law. |
| Jurisdiction | Practiced in the US, UK, Australia, Canada, Hong Kong, India, and New Zealand. |
| Decision-Making | Judges determine which precedents to apply in each new case, influencing the criteria for interpretation. |
| Adaptability | Addresses unforeseen situations not covered by statutes and adapts to changes in society. |
| Efficiency | Court proceedings are shorter as judges only need to follow precedent. |
| Flexibility | Higher courts can overrule prior decisions without waiting for lawmakers to change statutes. |
| Influence | Inspired new legislation and influenced the development of civil law systems. |
| Limitations | Past decisions can marginalize or disempower certain groups until societal changes prompt a revision. |
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What You'll Learn
Common law origins
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by courts. It is deeply rooted in stare decisis, a Latin term that means "to stand by things decided". This means that common law is primarily based on precedent—judicial rulings made in previous similar cases.
The origins of common law can be traced back to the Middle Ages in England. During this period, the Normans had developed a customary law in Normandy, which was influenced by Roman law and the canon law of the Christian church. The Norman Conquest of 1066 brought about a period of colonial rule that led to the development of a new body of rules based on local conditions in England. The Anglo-Saxons, especially after the reign of Alfred the Great in 871, had their own set of rules resembling those used by the Germanic peoples of northern Europe. These rules were gradually incorporated into the Norman common law.
In the late 1100s, an expanded system of royal justice emerged in England, which became known as the 'Common Law'. This term initially referred to the law that was consistent throughout the country, as opposed to the variation of regional or local laws. The Common Law emphasised written documentation, particularly royal 'writs', and promoted the peaceful resolution of disputes, the use of local juries, and a clear hierarchy of courts. It drew from the local customs and norms of the time, including the law of crime, family, property, and inheritance.
The establishment of permanent royal courts, such as the Courts of the King's Bench and of Common Pleas in Westminster, marked a significant shift towards formal government and the expansion of royal justice across England. This period, under the reign of Henry II (1154-1189), played a crucial role in the development and organisation of common law.
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Common law today
Common law is a legal system that is still very much in effect in the US and other parts of the world today. Common law is deeply rooted in stare decisis, which means "to stand by things decided". It is a body of law primarily developed through judicial decisions, or case law, rather than statutes. The judge presiding over a case determines which precedents apply to that particular case.
Common law is currently practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. In the US, common law is collected in the form of Restatements of various subject matter areas, edited by the American Law Institute. These Restatements are often cited by American courts and lawyers and are considered highly persuasive.
Common law is flexible and adaptable to unforeseen situations. It can respond to changes in society and does not require lawmakers to pass changes in statutes and codes. This flexibility can be seen as a benefit, but it can also lead to the marginalisation or disempowerment of certain groups when past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. For example, in England, common law held until the 1970s that fathers were entitled to custody of the children in cases of divorce, effectively trapping women in marriages.
Common law is also efficient, as judges need only follow precedent when making decisions, saving time and money. It is also more open to interpretation, which will become increasingly important as technology continues to grow and change.
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Common law vs civil 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, which means "to stand by things decided", where courts follow precedents established by previous decisions. Common law originated in medieval England and is currently practised in the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand, among others. It is largely based on precedent and judicial rulings made in previous similar cases, with judges determining which precedents to apply in new cases. Common law is more flexible than civil law, as it leaves the legal code open for interpretation.
In contrast, civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch as notable examples. Civil law is the most common legal system globally, practised in approximately 150 countries. It is characterised by its reliance on legal codes that serve as the primary source of law. Civil law is generally more prescriptive than common law, with more provisions implied into contracts. In civil law, judges tend to place less weight on judicial precedent and give more importance to the underlying law than the specific terms of a contract.
One key difference between the two systems is their approach to precedent and written decisions as a source of law. Common law systems heavily emphasise precedent, while civil law judges tend to give less weight to previous rulings. Civil law, in contrast to common law, takes the form of legal codes rather than uncodified case law. Common law is more flexible and adaptable to new situations, while civil law provides more certainty and predictability due to its reliance on established legal codes.
Another distinction lies in their geographical influence and historical development. Common law evolved from English legal traditions and spread to former British colonies and protectorates, including the United States. On the other hand, civil law has a broader reach, being practised in a larger number of countries worldwide. Civil law is derived from Roman law and was later influenced by Napoleonic, Germanic, canonical, and feudal legal traditions.
In terms of contract law, common law systems provide extensive freedom of contract, with few provisions implied by law. It is important to explicitly set out all the terms governing the relationship between the parties in the contract itself. In contrast, civil law systems imply more provisions into contracts, and contracts tend to be shorter as ambiguities can be resolved by operation of law.
In summary, common law and civil law represent two distinct legal traditions with unique characteristics. Common law is based on judicial precedent and is more flexible, while civil law relies on established legal codes and is more prescriptive. The choice between these systems depends on various factors, including historical influences, geographical context, and the level of flexibility and predictability desired in the legal system.
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Common law in practice
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by courts. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". This means that judges in common law systems rely on previous similar cases and rulings (case law) to guide their decisions.
Common law is primarily developed through judicial decisions rather than statutes. The presiding judge determines which precedents to apply in deciding each new case. 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 new precedent.
Common law originated in England during the Middle Ages and was largely created in the period after the Norman Conquest of 1066. It has since spread to various parts of the world, including the United States, Canada, Australia, India, and Hong Kong.
The flexibility of common law allows it to respond to changes in society. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes. Higher courts in common law systems can overrule prior decisions as "bad law" without waiting for lawmakers to do so. This adaptability makes it well-suited to address unforeseen situations that may not be covered by existing statutes or written rules of law.
The reliance on precedent in common law systems can also lead to the marginalization or disempowerment of certain groups. Past decisions, whether outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. For example, in England, common law held that fathers were entitled to custody of the children in cases of divorce, a bias that kept women trapped in marriages.
Common law is often contrasted with civil law, which originated in mainland Europe and centres around a comprehensive code of statutes that outline procedures and punishments. Civil law systems provide clear rules for judges to follow in specific disputes, whereas common law systems allow for more judicial discretion.
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Common law's future
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, which means "to stand by things decided", where courts follow precedents established by previous decisions. Common law originated in England in the Middle Ages and has since spread to many other countries, including the United States, Canada, Australia, India, and New Zealand.
Looking to the future, common law will continue to evolve and adapt to new social and technological developments. As technology plays a greater role in our lives, common law's ability to leave the legal code open to interpretation will become increasingly important. This flexibility allows common law to adapt to new technologies and changing social norms.
However, one challenge for the future of common law is addressing the potential for outdated or biased past decisions to shape future rulings. As seen in the example of gender biases in divorce cases in the 19th and 20th centuries, marginalized groups may face difficulties in pursuing favorable rulings under common law until societal changes prompt a judicial body to overturn the precedent.
To address this challenge, there may be a growing emphasis on legislative intervention and the development of written statutes to guide court rulings. This could help standardize the application of common law and reduce potential biases. Additionally, the integration of common law with civil law, as seen in mixed legal systems in some countries, may also influence the future of common law by incorporating more standardized codes and legislative guidance.
Furthermore, the future of common law may be influenced by increasing globalization and international cooperation. As the world becomes more interconnected, legal systems will need to adapt to cross-border issues and conflicts of laws. Common law systems may need to engage in more international cooperation and harmonization of legal standards to effectively address these challenges.
In conclusion, the future of common law holds both opportunities and challenges. While it will continue to evolve and adapt to new social and technological developments, there is also a need to address potential biases and standardize the application of legal precedents. The balance between flexibility and fairness will be a key aspect of shaping the future of common law jurisdictions.
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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 deeply rooted in stare decisis, which means "to stand by things decided".
The main components of common law are judicial decisions and precedent. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common law is practised in the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand. It can be traced back to medieval England and has been administered by the common-law courts of England since the Middle Ages.
