Cecily Zamora
Common law is a body of law unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means to stand by things decided. Common law originated in England during the Middle Ages and has been adopted by many former British colonies, including the United States, Canada, Australia, India, and Hong Kong. It is important because it provides a flexible and adaptable legal framework that can respond to changes in society and address unforeseen situations. Common law also forms the basis for new legislation and has influenced the development of legal systems worldwide.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of law based on legal precedents established by the courts. |
| History | Common law originated in England during the Middle Ages and spread to its colonies. |
| Current Use | Common law is used in several countries, including the US, Canada, India, Australia, and members of the Commonwealth. |
| Contrast with Civil Law | Civil law systems rely primarily on codes and statutes, while common law systems emphasize caselaw and legal precedent. |
| Adaptability | Common law is adaptable to unforeseen situations as it is not limited to statutes and can address changes in society. |
| Efficiency | Common law proceedings can be shorter as judges only need to follow precedent, saving time and money. |
| Influence on Legislation | Common law can inspire new legislation, such as the UK offense of "outraging public decency." |
| Limitations | Common law may disadvantage marginalized groups until popular thought or legislation changes its interpretation. |
| Federal Common Law | In the US, there is a limited body of federal common law, or rules created and applied by federal courts in certain situations. |
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What You'll Learn
Common law's origins
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. Common law originated in England during the Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. It was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government.
The English common law system has directly influenced that of Ireland and partially influenced the distinct legal system in Scotland. The United States and most member states of the Commonwealth (formerly the British Commonwealth of Nations) also inherited the English common law system. All U.S. states, with the partial exception of Louisiana, have either implemented reception statutes or adopted common law by judicial opinion. Other examples of reception statutes in the United States include the states of the U.S., Canada and its provinces, and Hong Kong.
English common law was also introduced to Ghana (then Gold Coast) during the British colonisation of the region. The Supreme Court Ordinance of 1876 formally introduced British law, including common law and statutory law, in the Gold Coast. Ghana's laws today are, for the most part, a modified version of imported English common law that is continuously adapting to changing socio-economic and political realities in the country.
Nicaragua's legal system is a mixture of English common law and civil law. This situation arose through the influence of British administration of the Eastern half of the Mosquito Coast from the mid-17th century until about 1894, the William Walker period from about 1855 to 1857, US interventions/occupations during the period from 1909 to 1933, the influence of US institutions during the Somoza family administrations (1933–1979), and the importation of US culture and institutions since 1979.
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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 the principle of stare decisis, which means "to stand by things decided". Common law is largely based on precedent, where courts follow precedents established by previous decisions. In a "case of first impression", judges are empowered to resolve the issue and establish new precedent. Common law is practised in several countries, including the US, Canada, India, and Australia.
Civil law, on the other hand, 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 primarily characterised by its reliance on legal codes that function as the primary source of law. It is a more prescriptive system, with a comprehensive code of statutes that outlines everything from procedures for handling claims to punishments for offences. Civil law systems have clear rules for judges to follow for specific disputes. Civil law is practised in about 150 countries, making it the world's most common legal system.
The main difference between common law and civil law is their approach to legal precedent. While common law systems heavily rely on judicial precedent and previous court decisions as legally binding, civil law systems tend to give less weight to precedent, with judges giving more importance to legal codes. Common law systems are more flexible and adaptable to unforeseen situations, as they are not bound by strict codes and statutes. Court proceedings in common law systems can also be shorter, as judges only need to follow precedent when making decisions, saving time and resources. However, civil law provides clear and consistent rules that are easily accessible and understood by citizens and businesses.
The contrast between common law and civil law has become blurred in recent times, with common law countries adopting codes in certain areas, such as bankruptcy and intellectual property, and civil law countries incorporating jurisprudence similar to case law. Additionally, some countries, like Nicaragua, have a mixture of both common law and civil law systems.
In conclusion, common law and civil law are the two predominant legal systems in the world, each with its own unique characteristics and approaches to law-making and interpretation. While common law is based on judicial precedent and flexibility, civil law relies on comprehensive codes and statutes, offering clear and consistent rules.
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Common law in former colonies
Common law is a legal system that has played a significant role in the legal history of many countries, particularly those that were formerly colonies of England, such as the United States, Canada, Australia, and India. The influence of common law in these former colonies can be traced back to the establishment of British rule and the subsequent imposition of English legal systems.
In the context of former colonies, common law served as the foundation for the legal systems that were developed and implemented during the colonial period. As the British Empire expanded, it established colonies and administered them through various means, including the introduction of English laws and legal institutions. The common law system, with its emphasis on precedent and judicial decision-making, became the dominant legal framework in these colonies.
One of the key characteristics of common law in former colonies is the continuation and adaptation of English legal principles. While the specific laws and regulations may have been modified to suit the local context and needs of the colony, the underlying framework and concepts derived from English common law remained. This continuity with English legal traditions helped establish a sense of legal stability and provided a recognizable framework for administering justice.
However, it is important to recognize that the transplantation of common law into these colonies was not a uniform process. Local customs, traditions, and legal practices also influenced the development of common law in each colony. Over time, this led to variations and distinct features in the common law systems of different colonies, reflecting the unique social, cultural, and political contexts in which they operated.
The impact of common law in former colonies extends beyond the legal realm and has had significant social, political, and economic implications. It has shaped the understanding of rights and responsibilities, influenced governance structures, and contributed to the development of democratic institutions. The common law system's emphasis on individual rights, property rights, and contractual enforcement, for example, has had a profound impact on economic activities and commercial relationships in these societies.
Today, while some former colonies have retained and further developed their common law systems, others have undergone legal reforms and incorporated elements of other legal traditions. Nonetheless, the legacy of common law remains evident, and it continues to influence legal practices and shape the understanding of law and justice in these societies.
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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 the courts. Common law is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". It is a flexible system that can respond to changes in society and adapt to unforeseen situations.
Common law originated in England during the Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. It was further developed during the Norman Conquest of 1066 and was largely created by judges rather than legislators until the late 19th century.
Today, common law is practised in several countries, including the United States, Canada, India, Australia, New Zealand, and the United Kingdom. In the US, common law is found primarily at the state level, with a limited body of federal common law created and applied by federal courts. The US has also adopted various codes, similar to those used in civil law systems, in areas such as bankruptcy, intellectual property, and tax law.
When a country gains independence from British rule, it often adopts a reception statute, where the new nation accepts pre-independence common law unless explicitly rejected by the new legislative body or constitution. This ensures that the new state has an extensive and predictable body of law to govern its citizens and businesses.
Common law has been criticised for making it difficult for marginalised groups to obtain favourable rulings until popular thought or civil legislation changes the interpretation of the law. For example, in England, common law held that fathers were entitled to custody of the children in cases of divorce, which kept women trapped in marriages. However, common law can also serve as the basis for new legislation, such as in the UK, where the ancient common-law offence of "outraging public decency" has been used to prosecute a new intrusive activity called "upskirting".
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Common law's influence on new legislation
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". Common law originated in England during the Middle Ages and has since spread to many other countries, including commonwealth nations and former British colonies.
The influence of common law on new legislation can be seen in several ways. Firstly, common law provides a foundation for new laws to be written. For example, the UK has long recognised the common-law offence of "outraging public decency". In recent years, this ancient common law has been used to prosecute a new intrusive activity called "upskirting". This demonstrates how common law can adapt to changing social realities and address new situations that may not have been originally predicted or addressed by legislators.
Secondly, common law systems are often more flexible and adaptable than civil law systems. In common law, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to pass changes in statutes. This allows common law to respond more quickly to changes in society and fill in gaps left by statute law. For example, in the United States, the Uniform Commercial Code (UCC) is a significant development in American law that has been enacted in all 50 states, despite variations in local laws.
Thirdly, common law can influence new legislation through the adoption of reception statutes. When a former British colony becomes independent, it often adopts a reception statute, which means it accepts pre-independence common law unless explicitly rejected by the new legislative body or constitution. This ensures that the new nation has a comprehensive and predictable body of law to govern its citizens and businesses. All US states, except for Louisiana, have implemented reception statutes or adopted common law through judicial opinion.
Finally, common law can influence new legislation by shaping the decision-making process in unusual cases where there is no applicable statute or written rule of law. In such cases, judges rely on legal precedents and stare decisis to guide their rulings. This can lead to the creation of new precedents that may inform future legislation.
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