Gavin Howe
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 phrase that means to stand by things decided. Common law is primarily developed through judicial decisions rather than statutes, with judges empowered to establish new precedents in cases of first impression. The common law system is less prescriptive than civil law systems, which rely on a comprehensive code of statutes that outline procedures for handling claims and punishments for offences. Common law is practised in several countries, including the United States, Canada, the United Kingdom, and Australia, and has influenced the legal systems of many former British colonies.
| Characteristics | Values |
|---|---|
| Type of procedure practiced in common law courts | Adversarial system |
| Basis of common law | Judicial decisions and precedents, not codes or statutes |
| Common law, also known as | Judicial precedent, judge-made law, or case law |
| Common law vs civil law | Civil law is more prescriptive and rule-based |
| Common law countries | US, UK, Canada, Australia, India, New Zealand, Hong Kong |
| Common law in the US | Evolved from British tradition that spread during the colonial period |
| Common law in former British colonies | Adopted through reception statutes |
| Common law in the UK | Influenced the legal system in England, Wales, Ireland, and partially Scotland |
| Common law in modern times | Comprehensive legislation has narrowed the scope of common law |
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What You'll Learn
Common law vs civil law
Common law, also known as case law or judge-made law, is a body of unwritten laws based on past judicial decisions or precedents. It is largely rooted in stare decisis, which means "to stand by things decided". Common law is deeply influenced by local customs and is often adopted by former British colonies or protectorates, such as the United States, Canada, India, and Australia.
In a common-law system, judicial decisions are binding and are the primary source of law, giving judges an active role in developing rules. This system is less prescriptive, with fewer provisions implied in contracts, and generally permits everything that is not expressly prohibited by law. Common law may guide court rulings when the outcome cannot be determined based on written rules of law.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is based on civil codes that cover all eventualities and is more prescriptive, implying various provisions into contracts. In a civil law system, the judge's role is more limited, focusing on establishing the facts of the case and applying the relevant code. Civil law clearly defines the cases that can be brought to court and the procedures and punishments for offences.
While civil law is regularly updated, it aims to create standardised codes to reduce bias and ensure consistent outcomes by applying the same standards of interpretation. Civil law is prevalent in continental Europe and the colonies of former European imperial powers, with around 150 countries having civil law systems.
In summary, the key difference between common law and civil law lies in their main sources of law. Common law relies heavily on judicial precedent and local customs, while civil law is centred on comprehensive written codes created by legislators.
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Common law in former British colonies
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It 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". Here, courts follow precedents established by previous decisions.
The British Empire spread the English legal system to its colonies across the British Isles and overseas. This included Wales, Ireland, North America, South Africa, Australia, Asia, and Africa. Many former colonies retain the common law system today, including the United States, Canada, India, Hong Kong, and New Zealand.
In the early colonial period, English common law was adapted to local circumstances. For example, in North America, the importation of African slaves led to the implementation of laws regulating master-slave relations. In Australia, colonizers adopted the practice of terra nullius, or "nobody's land", ignoring native land claims and securing European land titles.
However, the British also recognized the need to integrate indigenous and British common law courts and values, fostering the development of localized common law jurisprudence. This was particularly evident in colonies with a sparse indigenous population and continuous European immigration, where English common law was claimed as the only law.
When former British colonies became independent, they often adopted reception statutes, which meant they continued to recognize pre-independence common law unless explicitly rejected by the new legislative body or constitution. This was done to provide an extensive and predictable body of law to govern the conduct of citizens and businesses in the new state.
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Common law in the US
Common law, also known as case law or judge-made law, is a body of law based on past court decisions, or legal precedents, rather than statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, common law requires courts and judges to follow precedents established by previous rulings when dealing with similar cases in the future.
The U.S. common-law system has its roots in English common law, which was introduced to North America during the colonial period of the 17th and 18th centuries. All U.S. states, except partially Louisiana, have implemented reception statutes or adopted common law by judicial opinion. This means that English common law prior to the independence of the U.S. is considered the default law, unless explicitly rejected by the legislative body or constitution of a state.
Common law is flexible and adaptable, as it can respond to changes in society without requiring lawmakers to pass changes in statutes. It promotes stability and consistency, as the ultimate outcome of a case will be based on previous caselaw, rather than subjective viewpoints. It is also efficient, as judges only need to follow precedent, which can shorten court proceedings and save time and money.
Common law is less prescriptive than civil law. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is based on detailed records of similar situations and statutes, as there is no official legal code that can be applied to a specific case. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. However, in cases of first impression with no precedent, judges can establish new precedent.
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Common law in the UK
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 institutionalised opinions and interpretations from judicial authorities and public juries.
In the United Kingdom, common law is practised in England and Wales, while Scotland and Northern Ireland have separate legal systems. The common-law system in England has been in place since the Middle Ages, with roots in the King's Court (Curia Regis). It was institutionalised by Henry II in 1154, who created a unified system of law "common" to the country.
English common law forms the basis of the legal systems in many former British colonies, which have adopted it through reception statutes upon gaining independence. These include the United States, Canada, Australia, New Zealand, India, and Hong Kong.
Common law is deeply rooted in stare decisis, which means "to stand by things decided". It relies on detailed records of previous judicial decisions and precedents, as there is no official legal code. The presiding judge determines which precedents to apply in each new case. When a similar case has been resolved, courts typically follow the precedent set in that decision. However, in cases of first impression with no precedent, judges are empowered to establish new precedent.
Common law may incorporate certain statutes, but it is primarily developed through judicial decisions rather than statutes. Statutes are generally understood to supersede common law and may codify, create new causes of action, or overrule it. Common law still has practical applications in some areas, such as contract law and the law of torts.
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Common law in government contracts
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". In other words, common law is primarily developed through judicial decisions rather than statutes. When a similar case has already been resolved, courts typically align their reasoning with the precedent set in that previous decision.
In the context of government contracts, common law can apply to breach of contract claims. For example, in the case of federal government contracts, courts have applied common law claims for breach of contract when the government agency or contractor fails to act in good faith and fair dealing.
Additionally, in government contracts, there may be specific regulations and labour laws that private companies must comply with before they are eligible to enter into such contracts. Common law can guide court rulings when the outcome is undetermined based on written rules of law. This means that in disputes arising from government contracts, common law can be applied to determine the rights and obligations of the parties involved, as there may not be specific statutes governing these types of contracts.
Attorneys who specialize in government contracts represent clients in all aspects of negotiating and securing contracts with the government, as well as disputes that arise from these contracts. They advise their clients through each step of the process, from the submission of a proposal to contract negotiation. Some government contracts attorneys represent government agencies in the bidding selection process, contract drafting, negotiation, and litigation.
It is important to note that common law is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishments for offences. In contrast, common law draws from institutionalized opinions and interpretations from judicial authorities and public juries, aiming to establish consistent outcomes by applying the same standards of interpretation.
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Frequently asked questions
Common law is a body of law based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is generally more prescriptive than common law. Civil law systems rely primarily on codes and statutes, whereas common law systems rely on caselaw and legal precedent to guide their decisions.
Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. All U.S. states, except for Louisiana, have either implemented reception statutes or adopted common law by judicial opinion.
