Cecily Zamora
Common law is a legal system that gives great weight to precedent and the style of reasoning inherited from the English legal system. It 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 is deeply rooted in stare decisis, which means to stand by things decided, 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. Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases.
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What You'll Learn
Common law's roots in stare decisis
Common law, also known as case law, is deeply rooted in stare decisis, which translates to "to stand by things decided". This means that common law systems give significant weight to stare decisis, or the doctrine of precedent, where courts adhere to precedents established by previous decisions. This doctrine asserts that when a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. The doctrine of stare decisis is based on the idea that the appropriate rule of law must be decided, rather than being decided correctly. It promotes the unbiased, consistent, and predictable development of legal principles, enhancing the integrity of the judicial process.
Stare decisis, or the doctrine of precedent, is a key principle in common law systems, which includes many former colonies that continue to use this legal system today. Common law originated in the practices of the courts of English kings following the Norman Conquest in 1066, gradually supplanting local folk and manorial courts. It was then spread by England to Wales, Ireland, and overseas colonies, and later by the British Empire. The English jurist William Blackstone described the English common law precedent doctrine in 1765, noting that it established a strong presumption that judges would follow prior precedents when the same issues arose in litigation, thereby promoting legal stability.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This involves ascertaining the facts, locating relevant statutes and cases, extracting principles and analogies, and considering the weight of decisions based on the court and their recency. This process contributes to the evolution of common law over time, allowing for the adaptation of the law to new trends and changes in political, legal, and social philosophy.
While stare decisis is a fundamental aspect of common law, it is important to note that it is not an absolute rule. Lower courts can deviate from precedents if they are outdated or if the current case differs substantially from the precedent case. Additionally, in a case of first impression with no precedent or clear legislative guidance, judges have the authority to resolve the issue and establish new precedent. Furthermore, while stare decisis aims to prevent arbitrary decision-making, it has been criticised for perpetuating biases and marginalising certain groups until societal changes prompt a judicial body to overturn the precedent.
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Common law jurisdictions
Common law is deeply rooted in stare decisis ("to stand by things decided"), 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 clear precedent or legislative guidance, judges are empowered to resolve the issue and establish new precedent.
Legal systems that rely on common law as precedent are known as "common law jurisdictions". Common law jurisdictions give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system. 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 is more malleable than statutory law. Common law courts are not absolutely bound by precedent, but can (when an extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends.
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. Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. The US operates under a dual system of both common and civil law.
In common law jurisdictions, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then, 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. Finally, one integrates all the lines drawn and reasons given and determines "what the law is".
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Common law's flexibility and adaptability
Common law is deeply rooted in stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous decisions. However, common law is more malleable than statutory law. Common law courts are not absolutely bound by precedent and can reinterpret and revise the law to adapt to new trends in political, legal, and social philosophy. This flexibility and adaptability of common law can be seen in several ways.
Firstly, common law is flexible in that it allows for interpretation and adaptation to new situations. While common law places importance on precedent, it also allows judges to interpret and apply the law to unique cases that may not have been contemplated at the time the precedent was set. This flexibility can encourage good judgment by allowing judges to consider the specific circumstances of a case and make decisions that are just and equitable.
Secondly, common law evolves gradually over time, allowing for a smooth transition when the law changes. This gradual evolution ensures that the law can adapt to the changing needs of the society it governs without causing significant disruption. For example, in the United States, the Eighth Amendment prohibits "cruel and unusual" punishment. Over time, the interpretation of this Amendment has evolved to reflect changing social norms, demonstrating the adaptability of common law.
Thirdly, common law provides a basis for new legislation to be written. In some cases, common law may furnish the inspiration for new laws to be enacted, ensuring that the legal system remains responsive to societal changes and evolving needs. For example, the UK Parliament passed the Voyeurism (Offences) Act, which made upskirting a crime, demonstrating how common law can adapt to contemporary issues.
Lastly, common law allows for flexibility at the lower court level. While decisions of higher courts are binding on lower courts, lower courts have some flexibility to modify or deviate from precedents if they are outdated or substantially different from the current case. This flexibility ensures that the law can be applied fairly and justly, even as society and its needs change over time.
In conclusion, the flexibility and adaptability of common law lie in its ability to interpret and apply the law to unique situations, its gradual evolution, its role in shaping new legislation, and the discretion afforded to lower courts. These characteristics of common law enable it to remain responsive to the changing needs and complexities of the society it governs.
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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 originated in the practices of the courts of English kings following the Norman Conquest in 1066, gradually supplanting local folk courts and manorial courts. Common law is deeply rooted in stare decisis, which means "to stand by things decided". Here, courts follow precedents established by previous decisions. However, in a "case of first impression", judges can resolve the issue and establish a new precedent. Common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is 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. Civil law systems rely on legal codes as the primary source of law, whereas common law systems recognise prior court decisions as legally binding precedent. Civil law is generally more prescriptive than common law, which is more malleable. While civil law codes aim to create order and reduce bias, common law allows for interpretation and can adapt to new situations.
Many countries, particularly former British colonies, have adopted features of either common or civil law into their legal systems. The United States, for example, has a dual system of both common and civil law. Common law is practiced in several other countries, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. Approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems. In contrast, civil law is the world's most common legal system, practiced in about 150 countries.
One key difference between the two systems is their approach to precedent and written decisions. Common law places a strong emphasis on precedent, with higher court decisions binding on lower courts. Lower courts may deviate from precedents if they are outdated or substantially different from the current case. In contrast, civil law judges tend to give less weight to precedent, and civil law codes are regularly updated to reduce bias and create a standardised system. Another difference is the level of prescription; common law has few implied provisions in contracts, requiring all terms to be explicitly stated, while civil law has more implied provisions and less emphasis on setting out all terms in the contract.
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Common law's historical marginalisation of certain groups
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the concept of stare decisis, which means "to stand by things decided". In other words, common law involves courts following precedents established by previous decisions. This means that when a similar case has already been resolved, courts will usually align their reasoning with the precedent set in that previous decision.
The traditions of common law have historically led to the marginalization and 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. This dynamic creates a system that makes it difficult for marginalized parties to obtain favorable rulings until popular thought or civil legislation changes the interpretation of common law. 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.
Another example of common law's historical marginalization of certain groups is the case of Indigenous communities in countries like Canada, Australia, and Brazil, who have endured centuries of oppression, from land dispossession to cultural erasure. Efforts to reclaim their rights are often hindered by lingering systemic biases.
In the context of Diversity, Equity, and Inclusion (DEI), addressing the needs and challenges of historically marginalized groups is a foundational goal. These groups, including the African American community in the United States, have experienced systemic exclusion, oppression, or disadvantage due to factors such as race, ethnicity, gender, socioeconomic status, religion, disability, or sexual orientation. They often face structural barriers to equal opportunities in areas such as education, employment, healthcare, and political representation.
Furthermore, marginalized legal categories, such as intestate laws, can disadvantage individuals or groups by transforming inherently ordered social classifications into consequential legal categories. For instance, more than 21% of American families are marginalized by intestacy classifications, and these forms are more common among individuals of color and those with less wealth.
Overall, while common law offers the flexibility to adapt to new situations, it has historically marginalized certain groups, creating ongoing challenges that need to be addressed through proactive steps to foster truly inclusive and equitable environments.
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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. Common law is also known as case law.
A precedent is a history of judicial decisions that form the basis of evaluation for future cases. Precedent is fundamental to common law legal systems and operates under the principle of stare decisis ("to stand by things decided").
Common law systems rely on case law and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Civil law has a comprehensive set of legal statutes created by legislators that outline the procedures for handling claims and the punishment for an offense. Common law is more flexible than civil law as it can respond to changes in society and does not require lawmakers to pass changes in statutes.
