Kara Sears
Common law is a legal system used in Great Britain, the United States (except Louisiana), Australia, Canada, Hong Kong, India, New Zealand, and several former British colonies. It is a body of unwritten laws based on legal precedents established by the courts, where judges consider the customs of the country and previous court decisions when making rulings. Common law is deeply rooted in stare decisis, or to stand by things decided, and is often called case law, judge-made law, or customary law. While common law is not as prevalent in the US, some states allow for common-law marriage, also known as a non-ceremonial marriage.
| Characteristics | Values |
|---|---|
| Legal System Used In | Great Britain and the United States (except Louisiana) |
| Basis | Common customs and practices of the country |
| Development | Through decisions of courts and tribunals (case law) |
| Precedent | Past decisions of relevant courts are considered in future cases |
| Stare Decisis | Courts follow reasoning of prior decisions in similar disputes |
| Judicial Law-Making | Judges create precedent in fundamentally distinct cases |
| External Aids to Interpretation | Historical setting, dictionaries, practice, related statutes, legislative antecedents, etc. |
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What You'll Learn
Common law is a body of unwritten laws
Common law is a legal system used in Great Britain and the United States (excluding Louisiana). It is a body of unwritten laws developed by judges through the decisions of courts and similar tribunals, also known as case law. This is in contrast to laws developed through legislative statutes or executive branch action.
Common law is based on the principle of stare decisis, which means "to stand by things decided." In other words, judges are bound by the decisions of previous courts when faced with similar cases. This gives precedential weight to common law, ensuring that similar facts are not treated differently on different occasions. For example, in the case of Egerton v Harding (1974), a court decided that there was a customary duty to fence land against cattle straying from the common. This decision created a precedent that would influence future courts facing similar disputes.
While common law is unwritten in the sense that it is not codified in statutes, it is recorded in the decisions of past cases. Judges refer to these past decisions to determine the applicable law when parties disagree on what the law is in a particular case. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in that prior decision. However, if the current dispute is fundamentally distinct from all previous cases, judges have the authority and duty to create a new precedent by making law through their decisions.
Customs and local practices can also influence common law. For example, a person may claim a local right, such as a right of way or a right to use land in a particular way, based on local custom. While these customs are exceptions to the general law of the land, they can be recognised by judges as enforceable at law. However, judges have established rigorous tests that must be passed before recognising any local customs.
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Common law is based on legal precedent
Common law is a legal system used in Great Britain and the United States (excluding Louisiana). It is also referred to as "customary law" because it is based on legal precedent, where judges consider previous court rulings and customs when making decisions. This means that judges follow past decisions made by relevant courts in similar cases, treating like cases alike. This is done to ensure fairness and consistency in the law.
The common law system gives significant weight to legal precedent, and future court decisions are bound by it. When parties disagree on the interpretation of the law in a particular case, judges look to past decisions made by relevant courts to guide their reasoning. This principle is known as "stare decisis". Judges also have the authority and duty to create new precedents when a dispute is distinct from all previous cases, and these new decisions then become binding for future courts.
The development of common law has a long history, with its roots tracing back to the period following the Norman Conquest. As the country transitioned to a centralised government, judges appointed by the kings travelled the land, making decisions in the king's name and considering local customs and practices. Over time, judges established rigorous tests for recognising local customs, ensuring they did not contradict the general law of the land.
Customs and practices can be specific to a particular area and may grant local rights, such as right of way or specific land use. For example, in Egerton v Harding (1974), the court recognised a customary duty for landowners to fence their land against straying cattle. Customs can develop and evolve, but they only become part of the law once recognised by the courts. While some customs may now be of primarily historical interest, the common law system continues to shape legal decisions and ensure consistency in the treatment of similar cases.
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Common law is flexible
Common law is a system of law that is based on precedents, where decisions made by judges form the basis of future judgments. This is in contrast to civil law systems, which are based on codified statutes and laws. One of the key strengths of common law is its flexibility and ability to adapt to changing social norms and values.
The flexibility of common law lies in its inherent nature of being based on judicial decisions and interpretations. Judges, when deciding on a case, have the power to interpret laws and statutes and apply them to the specific circumstances of the case at hand. This interpretive power allows judges to consider the unique facts and context of each case, ensuring that the law can be applied flexibly and justly.
Over time, as society's values and norms evolve, judges' interpretations of the law can also change to reflect these shifts. This adaptability ensures that the common law system remains relevant and responsive to the needs and expectations of the society it serves. For instance, in areas of law such as tort law, where common law plays a significant role, judges have had the ability to expand and adapt the law to address new types of harm and societal attitudes.
The flexibility of common law is also evident in addressing legislative gaps and ambiguities. When statutes are unclear or silent on an issue, judges can rely on common law principles and precedents to provide guidance and fill in these gaps, ensuring coherence and consistency in the law.
Additionally, the common law system enables the development of new legal principles and doctrines through judicial reasoning and decision-making. Judges have the power to overrule or distinguish previous decisions, create new precedents, and evolve the law to address the complexities and changing needs of society.
In summary, the flexibility of common law stems from its foundation in judicial decisions and interpretations. This flexibility allows the law to be applied justly and adaptively, reflecting changing social norms and values. Through interpreting statutes, addressing legislative gaps, and evolving legal principles, common law remains a dynamic and adaptable system of law.
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Common law promotes stability and consistency
Common law, also known as "customary law", is a legal system used in Great Britain and the United States (except Louisiana). It is based on the principle of stare decisis, which means that judges are bound by the decisions of earlier courts (precedents) when resolving similar cases. This gives consistency to the law by ensuring that similar facts are not treated differently on different occasions.
The common law system recognises local customs and practices as a source of law. For example, in Egerton v Harding (1974), the court found that there was a customary duty to fence land against straying cattle. In another case, New Windsor Corporation v Mellor (1974), the local community's right to use land for lawful sports was upheld. Judges play a crucial role in developing common law by interpreting and applying these customs, as well as creating precedents in novel cases.
The stability and consistency promoted by common law can be seen in its historical context. Following the Norman Conquest, judges appointed by the kings travelled the land, making decisions based on local customs and practices. This early form of common law provided a stable framework for resolving disputes and ensured consistency in the application of laws across the kingdom.
While common law provides stability, it is not static and can adapt to changing circumstances. Customs and practices may develop over time, and judges recognise and enforce these changes through their decisions. This flexibility allows the law to remain consistent with societal values and norms while maintaining stability by ensuring that changes are made in a gradual and considered manner.
In conclusion, common law promotes stability and consistency by adhering to precedents, recognising local customs, and adapting to changing circumstances in a measured way. This balance ensures that the law remains predictable and consistent while also being responsive to the evolving needs of society.
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Common law is more malleable than statutory law
Common law is a legal system used in Great Britain, the United States (Louisiana being the only exception), Australia, Canada, Hong Kong, India, and New Zealand. It is a body of unwritten laws based on legal precedents established by the courts. Common law is also influenced by customs or common practices of the country, which are considered by judges when making decisions. For example, in Egerton v Harding (1974), the court ruled that there was a customary duty to fence land against straying cattle.
Common law is often the basis for new legislation. For instance, the U.K. has long had a common-law offence of "outraging public decency", which has recently been used to prosecute a new intrusive activity called "upskirting". Common law also fills in the gaps where statutes are silent. For example, in Cannon v. University of Chicago, the Court implied a private cause of action from a silent statute, which Justice Lewis Powell dissented from, stating that the Article III judicial power did not include such power.
Statutory law, on the other hand, is created by legislatures with legislative powers. While common law is more flexible and adaptable to changing circumstances, statutory law is more rigid and requires a formal process to be amended. Common law is based on the decisions of judges and the interpretation of legal precedents, which can evolve over time. In contrast, statutory law is based on written rules and codes that are more fixed and specific.
The malleability of common law can be both advantageous and disadvantageous. On the one hand, it allows the law to adapt to new situations and address issues that are not covered by statutory law. On the other hand, it can lead to inconsistencies in the application of the law and make it difficult for marginalised parties to obtain favourable rulings until popular thought or civil legislation changes the interpretation of common law. For example, in the past, common law held that fathers were entitled to custody of the children in cases of divorce, which kept women trapped in marriages.
In conclusion, common law is more malleable than statutory law due to its unwritten nature and reliance on judicial interpretation. This flexibility can be beneficial in addressing novel situations, but it can also lead to inconsistencies and difficulties for marginalised groups.
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Frequently asked questions
Common law is a legal system that gives past court decisions significant weight in future decisions by principle. It is largely based on judicial precedent, which means that past decisions made by judges will inform and impact the decision made by judges dealing with similar cases in the future.
Common law differs from civil law in that it is largely based on precedent and judge-made law, whereas civil law systems are based on written constitutions and statutes. Common law systems tend to leave the task of developing detailed rules to judges, whereas civil law systems tend to have detailed statutes that outline rules for judges to apply.
Common law is used in a number of countries around the world, including the United States, the United Kingdom, Canada, Australia, New Zealand, and India, among others. It is one of the two main legal systems in the world, the other being civil law.
