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 deeply rooted in stare decisis, a Latin term that means to stand by things decided, where courts follow precedents established by previous decisions. Common law originated in the practices of the courts of English kings following the Norman Conquest in 1066, establishing a unified legal system. It emphasises precedent while allowing some freedom for interpretation, with courts following precedents when relevant and empowered to establish new precedent in novel cases. Precedent, a defining feature of common law, is a judicial decision that serves as an authority for future similar cases, promoting consistency and predictability in rulings.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Basis | Common law is deeply rooted in stare decisis, which means "to stand by things decided". |
| History | Common law originated in the practices of the courts of English kings following the Norman Conquest in 1066. |
| Geographic Reach | Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and formerly colonized countries. |
| Judicial Precedent | Precedent is a judicial decision that serves as an authority for courts when deciding similar cases. |
| Flexibility | Common law is more malleable than statutory law, allowing courts to reinterpret and revise the law without legislative intervention. |
| Consistency | Stare decisis promotes consistency and predictability in judicial decisions, reducing seemingly random interpretations. |
| Hierarchy | Vertical stare decisis holds that decisions of higher courts take precedence over lower courts, while horizontal stare decisis focuses on decisions within the same appellate level. |
| Case Law | Common law, also known as case law, relies on detailed records of similar situations and statutes due to the absence of an official legal code. |
| Mixed Systems | Some legal systems, like Scots Law and South African Law, mix portions of both common and civil law traditions. |
| Marginalization | Common law has historically led to the marginalization or disempowerment of certain groups due to the influence of past decisions on future rulings. |
| Legislative Inspiration | Common law can inspire new legislation, such as the UK's Voyeurism (Offences) Act that criminalized upskirting. |
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What You'll Learn
Common law origins
Common law, also known as case law, is deeply rooted in the Latin concept of stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. This concept is fundamental to common law legal systems, promoting consistency and predictability in judicial decisions. The common law system originated in England following the Norman Conquest in 1066, gradually supplanting local folk and manorial courts to establish a unified legal system. This system was then spread by England to Wales, Ireland, and various colonies, including the United States, Canada, Australia, New Zealand, India, and Hong Kong, and later by the British Empire. Many of these former colonies continue to retain the common law system today, either in its original form or as part of a mixed legal system that integrates common law and civil law.
In a common law jurisdiction, a multi-step process is employed to determine "what the law is" in a given situation. This involves ascertaining the facts, locating relevant statutes and cases, extracting principles and analogies from various court decisions, and finally integrating all the information to determine the applicable law. Common law is based on unwritten laws and institutionalized opinions and interpretations from judicial authorities and public juries, as opposed to codified statutes or constitutions. It is more malleable than statutory law, allowing for reinterpretation and revision by courts to adapt to new trends in political, legal, and social philosophy.
The precedents in common law are established through a process of incrementalism, where judicial decisions in similar cases serve as case law to guide future rulings. These precedents can be binding, meaning courts must follow them, or persuasive, which courts can consider but are not obligated to follow. The weight given to a precedent depends on its recency and the hierarchy of the court that set it, with more recent decisions and those from higher courts carrying more weight. Common law precedents are maintained over time through court records and historical documentation in collections of case law known as yearbooks and law reports.
While common law provides stability and predictability, it has also been criticised for its potential to marginalise and disempower certain groups. Past decisions, even if outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This dynamic has posed challenges for marginalised groups seeking favourable rulings, as it often requires a shift in societal or legislative thought to bring about a change in the interpretation of common law. For example, in England until the 1970s, common law held that fathers were entitled to custody of children in cases of divorce, effectively limiting women's agency in marriages.
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Precedent in common law
Common law, also known as case law, is deeply rooted in stare decisis, a Latin term meaning "to stand by things decided". This means that common law systems give great weight to judicial precedent, where past decisions are used as a basis for future similar cases. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
In common law, precedent can be binding or persuasive. Binding precedent is something that courts must follow, whereas persuasive precedent is something they can consider but are not bound to follow. For example, the precedent of higher courts is usually binding on lower courts, but lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different. Lower courts can also choose to overturn the precedent, but this rarely occurs. In common law, precedents typically play a more decisive role than in civil law. In many cases, precedents are authoritative sources of law, meaning that if the facts in a later case are legally the same as those of a precedent, the later court is often required to deliver the same decision.
The process of determining "what the law is" in a given situation involves several stages of research and analysis. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Next, one must extract the principles, analogies, and statements by various courts to determine how the next court is likely to rule on the facts of the present case. More recent decisions and decisions of higher courts carry more weight. Finally, one integrates all the lines drawn and reasons given and determines "what the law is".
Common 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 supplanting the local folk courts and manorial courts. England spread the English legal system across the British Isles and overseas colonies, and many former colonies 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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Mixed legal systems
Some mixed systems, such as Scots law in Scotland, South African law, the Laws of the Philippines, and the law of Quebec and Louisiana, do not fit into the civil vs. common law dichotomy because they mix portions of both. Such systems may have been heavily influenced by the common law tradition, but their private law is firmly rooted in the civil law tradition. Because of their position between the two main systems of law, these types of legal systems are sometimes referred to as mixed systems of law. Louisiana courts, for example, operate under both stare decisis and jurisprudence constante. In South Africa, the precedent of higher courts is absolutely binding on lower courts, whereas the precedent of lower courts only has persuasive authority on higher courts.
The Nordic countries also have mixed systems that are sometimes considered a branch of civil law, but they are sometimes counted as separate from the civil law tradition. In Sweden, for instance, case law arguably plays a more important role than in some of the continental civil law systems. The two highest courts, the Supreme Court (Högsta domstolen) and the Supreme Administrative Court (Högsta förvaltningsdomstolen), have the right to set precedent, which has persuasive authority on all future applications of the law.
The term "mixed", which has been chosen over other terms such as "hybrid" or "composite", should not be construed restrictively. Thus, this category includes political entities where two or more systems apply cumulatively or interactively, but also entities where there is a juxtaposition of systems as a result of more or less clearly defined fields of application.
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Common law vs civil law
Common law and civil law are two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems. Common law, also known as case 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 originated in medieval England and was spread across the British Empire. Many former colonies retain the common law system today, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. Common law systems give great weight to precedent, or stare decisis, which means "to stand by things decided". In common law, past judicial decisions serve as case law to guide future rulings, thus promoting consistency and predictability. Common law is less prescriptive than civil law, and places an emphasis on precedent while allowing some freedom for interpretation.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. Civil law is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law systems rely on legal codes that function as the primary source of law, rather than judicial precedent. Civil law is generally more prescriptive than common law, and there is less importance placed on setting out all the terms of a contract, as inadequacies or ambiguities can be resolved by operation of law. In civil law, judges primarily focus on fact-finding and applying codified law. Civil law is the world's most common legal system, practiced in about 150 countries.
In terms of contracts, common law systems have few provisions implied into a contract, so it is important to set out all the terms governing the relationship between the parties in the contract itself. In civil law systems, there are more provisions implied into a contract, and the contract can be shorter since ambiguities can be resolved by operation of law. In civil law jurisdictions, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
Some legal systems, such as Scots law in Scotland, South African law, the laws of the Philippines, and the law of Quebec and Louisiana, do not fit neatly into the civil vs. common law dichotomy as they mix portions of both. Louisiana, for example, operates under both stare decisis and jurisprudence constante.
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Limitations of stare decisis
Common law is a legal system that gives great weight to judicial precedent, and to the style of reasoning inherited from the English legal system. In simple terms, it means that past decisions of courts are used as precedents in present-day cases. This is known as the principle of stare decisis, which is Latin for "to stand by that which is decided".
While the principle of stare decisis is a fundamental tenet of common law, there are several limitations and factors that can limit its application:
Firstly, stare decisis only applies to decisions on points of law, and not to decisions on points of fact. This means that past cases are only binding in future cases that involve similar legal principles, not similar facts. The specific facts of a case are usually unique, and so the decision in one case may not be applicable to another with slightly different circumstances. For example, a court's interpretation of a contract will depend on the specific terms of that contract, and so a previous case interpreting a different contract may not be relevant.
Secondly, the doctrine of stare decisis applies only to decisions made by higher courts. The decisions of lower courts may be persuasive, but they are not binding on other lower courts or on higher courts in future cases. This is because higher courts are considered to have greater expertise and authority, and so their decisions are given more weight. In a hierarchical court system, each level of appeal gains greater authority and their decisions become more binding on future cases.
Thirdly, stare decisis may be limited by changes in the law. If a legislative body enacts a new law, or amends an existing one, then this can override past judicial decisions. Similarly, if a higher court overrules a past decision, then that decision no longer has precedential value. For example, if a Supreme Court decides that a certain type of evidence is inadmissible, then all past decisions based on that type of evidence may no longer be valid.
Additionally, stare decisis does not apply when there is a change in the social, economic, or political climate that renders past decisions outdated or inappropriate. This is known as the doctrine of changing circumstances. For example, a past decision that allowed gender discrimination may no longer be followed due to changes in social attitudes and the enactment of equal rights legislation.
Finally, stare decisis is limited by the rule of law, which requires that decisions are made impartially and without bias. If a court decides a case in a way that is seen to be arbitrary, unfair, or inconsistent with other similar cases, then that decision may be overturned on appeal. This ensures that the law is applied evenly and predictably, and that justice is served in each individual case.
In conclusion, while stare decisis is a fundamental principle of common law, it has several limitations that allow the law to adapt and change over time. These limitations ensure that the law remains responsive to the needs of society and that the courts can interpret and apply the law in a fair and just manner.
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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 draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions.
Stare decisis is a foundational concept in the American legal system, which holds that courts should honour precedent. It is a Latin term that means "let the decision stand" or "to stand by things decided".
Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. It is a defining feature that sets common law systems apart from civil law systems. In common law, precedent can be binding or persuasive.
Civil law is a comprehensive, codified set of legal statutes created by legislators. A civil system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Common law, on the other hand, is more malleable and allows for freedom of interpretation.
