Keith Mack
Common law is a legal system that is based on precedent. This means that judges rely on past rulings and decisions to guide their own rulings. Common law is deeply rooted in stare decisis, which means to stand by things decided. In common law systems, judges are not bound by precedent and can reinterpret and revise the law to adapt to new trends. Common law is also known as case law or judge-made law. It is a flexible system that can respond to changes in society and deal with unanticipated situations. Common law originated in England and was spread to its colonies, including the United States, Canada, India, and Australia. Today, approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law.
| Characteristics | Values |
|---|---|
| Definition | Law derived from the decisions of judges, also known as judicial precedent, judge-made law, or case law. |
| Basis | Precedent, or previous rulings in similar cases, which are used to guide future decisions. |
| Flexibility | More flexible than civil law as it can respond to changes in society and new trends in political, legal, and social philosophy. |
| Judge's role | Judges interpret the law and determine which precedents to apply in each case. They are impartial referees who decide which side has made the most convincing argument. |
| Lawyer's role | Lawyers argue their client's case to the best of their ability. |
| Stability and consistency | Promotes stability and consistency as outcomes are based on previous caselaw, not subjective viewpoints. |
| Scope | Approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law. |
| Examples | The US, Canada, India, Australia, Hong Kong, New Zealand, and the UK. |
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What You'll Learn
Common law vs civil law
There are two main types of legal systems in the world: Common Law and Civil Law. About 150 countries have civil law systems, while there are about 80 common law countries. Common law is based on the legal principles of England, which were also adopted by former British colonies or protectorates, including the United States. Civil law, on the other hand, is rooted in the traditions of the Roman Empire and was later developed in continental Europe, particularly in France and Germany. It was also adopted by the colonies of European powers such as Spain and Portugal, as well as countries like Russia and Japan, which sought to reform their legal systems to gain economic and political power.
The key difference between common law and civil law lies in the main source of law. Common law systems, while making use of statutes, consider judicial cases as the most important source of law. This gives judges an active role in developing rules and allows for flexibility in interpretation. Civil law systems, on the other hand, rely on comprehensive legal codes as the primary source of law, with judges applying the law to specific cases. This results in a more prescriptive system, with less emphasis on the opinions of judges.
In common law countries, judicial decisions are generally binding and can only be overturned by the same court or through legislation. Common law is often uncodified, relying on precedent and past rulings as legally binding. However, common law today is also codified, with written laws and statutes playing a significant role. In civil law countries, the focus is on the specific legislation and codes that cover all eventualities, and there is less emphasis on judicial precedent. This can lead to shorter contracts, as civil law systems imply various provisions into contracts, while common law systems require all terms to be explicitly stated.
Another difference lies in the appointment of judges. Common law systems tend to appoint judges after successful legal careers, while civil law jurisdictions often appoint recent university graduates. This can result in differing worldviews among judges, influencing their approach to legal disputes.
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Common law jurisdictions
Common law, also known as judicial precedent, judge-made law, or case law, is a legal system that gives great weight to precedent—past similar rulings made by judges in previous similar cases. Common law is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In other words, courts follow precedents established by previous decisions.
Legal systems that rely on common law as precedent are known as "common law jurisdictions". Common law systems use the "adversarial system", in which lawyers for each side are primarily interested in arguing their client's case to the best of their ability. The judge (or jury) is an impartial referee who is trying to decide which side has made the most convincing argument.
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. Many former colonies retain the common law system. For example, the United States, which originally based its common law rules on English common law, is a common law jurisdiction. Every U.S. state—with the exception of Louisiana—has a common law legal system.
In a common law jurisdiction, 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 of what they consider important 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". Then, one applies that law to the facts.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs without the need for a marriage license or a formal ceremony. It is a form of legal marriage that is recognised in certain places, such as seven US states and the District of Columbia, but not in others, such as Scotland.
The concept of common-law marriage is based on the agreement of two people to consider themselves married, followed by cohabitation. This means that the couple lives together and presents themselves as a married couple to their friends, family, and the wider community. It is important to note that simply cohabiting is not enough to establish a common-law marriage. Both partners must have the legal capacity to marry, which typically means being at least 18 years old, of sound mind, and not already married to someone else.
The requirements for common-law marriage can vary depending on the jurisdiction. In some places, there may be no statutory requirement for the length of time a couple needs to live together, while in others, there may be a minimum requirement, such as cohabiting for ten years or more. To prove a common-law marriage, certain legal documents may be required, depending on the specific laws of the region.
The history of common-law marriage dates back to medieval Europe, where marriage was under the jurisdiction of canon law, which recognised marriages even in the absence of any witnesses as long as the parties agreed to take each other as husband and wife. In ancient Greece and Rome, marriages were private agreements between individuals and estates. In colonial America, common-law marriage survived and continues to be recognised in some states today.
It's important to note that the term "common-law marriage" is sometimes used incorrectly to describe cohabitation or other legally recognised relationships that may have similar rights and responsibilities to marriage but are not legally considered married.
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Common law incrementalism
The process of common law incrementalism can be understood as follows: First, the facts of a case must be ascertained. Then, any relevant statutes and cases must be located and the principles, analogies, and statements by various courts must be extracted. Next, the courts will consider the weight of these factors and make a decision based on the information presented. This decision then becomes a precedent for future similar cases, guiding the decisions of other judges.
The benefit of common law incrementalism is that it allows for flexibility and adaptability in the law. Judges can interpret and apply the law based on the specific circumstances of each case, rather than being strictly bound by codified rules. This allows the law to evolve and change over time to adapt to new trends and developments in society.
However, one potential drawback of common law incrementalism is that it can lead to uncertainty and inconsistency in the law. Different judges may interpret precedents differently, resulting in varying outcomes in similar cases. Additionally, the focus on incremental changes may hinder wholesale reforms or the pursuit of abstract ideals such as social justice.
Overall, common law incrementalism is a process of rule development in common law systems that emphasizes pragmatism, flexibility, and gradual change. It allows the law to evolve through a series of gradual steps, adapting to new trends and developments over time.
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Common law and the US constitution
Common law is a legal system that is deeply rooted in the concept of "stare decisis", which means "to stand by things decided". It is a system of law primarily developed through judicial decisions rather than statutes. The decisions of judges in previous similar cases, known as "judicial precedent" or "judge-made law", guide the decisions of other judges in the future. In a pure common law system, laws are derived from the decisions of judges and are not created independently of the judiciary.
In the US, a mix of common law and civil law is used. The US common law originated in England and was inherited from the practices of the English courts. While the US Constitution does not mandate the use of common law in any state, many former colonies of the British Empire, including some US states, retain the common law system today.
Common law systems use the "adversarial system", where lawyers for each side argue their client's case to the best of their ability, and the judge or jury acts as an impartial referee. This is in contrast to the "inquisitorial system" used in civil law, where the judge plays a more active role in seeking the truth by bringing charges and questioning witnesses.
The US Constitution, on the other hand, is the supreme law of the United States. It establishes the federal government and guarantees certain fundamental rights for its citizens. While the Constitution may not be rooted in pure common law traditions, it allows for the evolution of legal concepts and interpretations over time, similar to the way common law adapts to new trends and changes substantially without a sharp break.
In conclusion, while the US Constitution does not prescribe the use of common law, the US legal system incorporates elements of both common law and civil law. Common law provides the foundation for the US legal system, allowing for flexibility and the adaptation of laws to new situations, while the Constitution serves as the overarching framework that guides the country's legal principles and protects the rights of its citizens.
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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 also known as case law or judge-made law.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is based on a clear set of rules and codes that outline the procedures for handling claims and the punishment for offences. Common law, on the other hand, is more flexible and can address situations not originally predicted by lawmakers.
Common law promotes stability and consistency as it relies on past precedents and rulings. It is also flexible and can adapt to changes in society. Additionally, it empowers judges to resolve issues and establish new precedents in unique cases.
In the United States, common law marriages, also known as non-ceremonial marriages, are recognised in some states. This allows couples to be considered married without a formal civil or religious ceremony. Another example is the interpretation of the insanity defence in murder cases, where judges rely on past decisions and precedents to guide their rulings.
