Cecily Zamora
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from judicial decisions and opinions, rather than from statutes or the constitution. Common law is flexible and can evolve through a series of gradual steps, allowing it to adapt to new trends in political, legal, and social philosophy. It originated in England during the Middle Ages and has since spread to various parts of the world, including former British colonies, the United States, Canada, India, Australia, and other Commonwealth countries.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of law based on legal precedents established by the courts. |
| History | Common law has been administered by the courts of England since the Middle Ages. |
| The English legal system spread to Wales, Ireland, and overseas colonies, and later throughout the British Empire. | |
| Many former colonies, including the United States, Canada, India, Australia, and New Zealand, continue to use common law. | |
| Sources | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
| Flexibility | Common law is more flexible than statutory law as it can be reinterpreted and revised without legislative intervention to adapt to new trends. |
| Efficiency | Common law promotes efficiency by saving time and money in court proceedings as judges only need to follow precedent. |
| Stability and Consistency | Common law provides stability and consistency as outcomes are based on previous case law rather than subjective viewpoints. |
| Complexity | Common law systems are complex due to interactions with other legal systems, such as constitutional law, statutory law, and regulatory law. |
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What You'll Learn
The spread of common law
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents, institutionalised opinions, and interpretations established by the courts. It is a flexible system that allows for reinterpretation and revision of laws without legislative intervention, making it adaptable to changing trends. This adaptability has contributed to its spread and evolution in various jurisdictions.
The U.S. common-law system, for instance, evolved from British traditions that spread to North America during the 17th and 18th centuries. Today, common law is practiced not only in the United States but also in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. Additionally, many Commonwealth countries have legal systems that evolved from English common law, and some former British colonies continue to retain the common law system.
The influence of common law can also be seen in the development of Roman-Dutch common law jurisdictions, including South Africa, Botswana, Lesotho, Namibia, Swaziland, Sri Lanka, and Zimbabwe. During the Napoleonic Wars, the British seizure of Dutch colonies in Southern Africa and Sri Lanka contributed to the spread of common law in these regions.
While civil law systems have comprehensive, codified sets of legal statutes, common law aims for consistency in outcomes by applying the same standards of interpretation across cases. This focus on standardised interpretation, along with its adaptability and reliance on judicial precedent, has contributed to the widespread adoption and evolution of common law in various legal systems worldwide.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Common law in former colonies
Common law, a body of unwritten laws based on legal precedents established by the courts, has been administered by the courts of England since the Middle Ages. It was first spread across the British Isles to Wales, then to Ireland, and later to various overseas colonies by England and the British Empire. Many former colonies, including approximately one-third of the world's population, continue to retain elements of the common law system.
The common law system in England directly influenced that of Ireland and partially influenced Scotland's distinct legal system. The United States, a former British colony, has a common-law system that evolved from British tradition during the colonial period in the 17th and 18th centuries. This system is also practiced in other former colonies such as Australia, Canada, Hong Kong, India, and New Zealand, and the United Kingdom itself.
The degree of representation in legislative bodies afforded to the indigenous population and the integration of indigenous and British common law courts and values played a significant role in shaping the legal landscape of former colonies. For example, an investigation into the colonial experiences of eight formerly British-controlled territories (Barbados, Jamaica, Botswana, Nigeria, Kenya, India, Burma, and Singapore) revealed that the processes and policies of the colonial enterprise impacted their contemporary rule of law outcomes.
Upon gaining independence, former British colonies may adopt a reception statute, a statutory law that considers pre-independence English common law and its precedents as the default law. This adoption of common law provides an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state. However, the legislative body or constitution of the newly independent nation may choose to reject or modify specific aspects of the common law system to suit their needs.
The legacy of common law in former colonies has had a lasting impact on their legal systems, with many countries retaining and adapting the common law traditions they inherited during the colonial era.
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Common law in England
Common law is a legal system that originated in England and forms the basis of legal systems in several countries worldwide. It is derived from custom and judicial decisions, rather than from statutes or codified rules, and has been developing for centuries.
In England, common law began with the unification of the country under a single legal system, which was established by King Henry II in the 12th century. This system, known as 'royal justice', was administered by the King's itinerant judges who would travel around the country hearing cases and establishing precedents. Over time, a body of law developed based on custom and practice, and the decisions of these judges, which became known as the 'common law'.
The common law system in England was (and still is) based on the principle of binding precedent, or stare decisis, which means 'to stand by things decided'. This means that past decisions of the courts are binding on future decisions, ensuring consistency and predictability in the law. Judges are bound by the decisions of higher courts, and must follow these precedents in their own decision-making. This hierarchical structure of the court system, with the Supreme Court of the United Kingdom at the apex, ensures a unified and consistent approach to the development of the law.
The influence of common law in England can be seen in the country's legal culture and practices. For example, the use of juries in criminal trials, the adversarial nature of court proceedings, and the reliance on oral testimony and cross-examination of witnesses are all features of the common law system. Additionally, the common law tradition has influenced the development of legal education and the training of lawyers in England, with a focus on case law and judicial precedent.
In conclusion, common law in England has a long and rich history, developing over centuries and forming the basis of the country's legal system today. It is a dynamic and evolving body of law, influenced by custom, judicial decision-making, and the principles of equity, and continues to play a central role in shaping the legal landscape of England and other common law jurisdictions around the world.
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Common law and civil law
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from judicial decisions instead of statutes or constitutions. Common law is flexible, as it can respond to changes in society. It draws from institutionalized opinions and interpretations from judicial authorities and public juries.
The common law system as we know it started in England during the Middle Ages and was spread across the British Isles, and later to the colonies of the British Empire. Many former colonies, such as the United States, Canada, India, Australia, and New Zealand, continue to rely heavily on common law.
In common law systems, the courts can address situations not originally predicted by lawmakers. Higher courts can overrule prior decisions as 'bad law' without waiting for lawmakers to act. Common law promotes stability and consistency, as everyone involved knows that the outcome will be based on previous caselaw rather than subjective viewpoints. Court proceedings can also be shorter, as judges only need to follow precedent.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. Civil law, which originated in mainland Europe, centres around a code of statutes that outlines procedures for handling claims and punishments for offences. Civil law systems have clear rules for how judges need to rule in specific disputes. Judicial decisions in civil law are not binding in other cases, even if the facts are similar.
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Common law in the US
The common law system in the US evolved from British tradition during the colonial period in the 17th and 18th centuries. 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 more flexible than statutory law. Common law courts are not bound by precedent, but they can reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal, and social philosophy. The law evolves through a series of gradual steps, allowing it to change substantially over time without causing disruption.
In the US, common law rules were originally fashioned based on English common law. Over time, the American legal system matured, and common law rules were created either from direct precedent or by analogy to comparable areas of decided law. While common law is primarily found at the state level, there is also a limited body of federal common law, which consists of rules created and applied by federal courts in the absence of any controlling federal statute.
At the state level, legislatures may subsequently codify common law rules to give them permanence, modify them, or replace them entirely with new legislation. For example, in 2018, the California Supreme Court issued a decision that articulated a three-part test for determining whether California workers were independent contractors or employees. In response, the California Legislature created a new section in the Labor Code, which codified and expanded upon the court's holding.
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Frequently asked questions
Common law is derived from judicial decisions and opinions, rather than from statutes or the constitution.
Civil law is a comprehensive, codified set of legal statutes created by legislators. Common law, on the other hand, is a body of unwritten laws based on legal precedents and opinions from the courts.
Common law draws from stare decisis, a Latin term for relying on previous decisions when evaluating future cases. Common law is more flexible than civil law as it can respond to changes in society and be adapted without legislative intervention.
Common law originated in England and was spread to its colonies. Today, common law systems are used in the United States, Canada, India, Australia, and many other countries.
