Gavin Howe
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is more malleable than statutory law, as common law courts are not bound by precedent and can reinterpret and revise the law without legislative intervention. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. Common law is practiced in several countries, including Ghana, the United States, Australia, Canada, and the United Kingdom. In contrast to civil law, which is a comprehensive, codified set of legal statutes, common law is adaptable and evolves gradually through a series of steps, allowing for new trends in political, legal, and social philosophy to be incorporated.
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What You'll Learn
Common law is a body of unwritten laws based on legal precedents
Common law is a system of law that is uncodified and based on legal precedents established by the courts. Common law, also known as case law, draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is a flexible system that adapts to changing social, economic, and political realities. Common law is practised in several countries, including Australia, Canada, Ghana, Hong Kong, India, New Zealand, the United Kingdom, and the United States.
Common law is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. In a civil law system, there is a clear definition of the cases that can be brought to court, the procedures for handling claims, and the punishments for offences. Judicial authorities use the applicable civil code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the goal is to create standardized codes that reduce bias and ensure consistent application across cases.
In contrast, common law is a body of unwritten laws based on legal precedents. A precedent, known as stare decisis, is a history of judicial decisions that form the basis for evaluating future cases. Common law relies on detailed records of similar situations and statutes because there is no official legal code for a specific case. The judge presiding over a case determines which precedents apply.
While common law is adaptable and can change to fit new circumstances, it can also be slow to respond to societal changes. Past decisions in common law can shape future rulings, and outdated or biased precedents can persist until societal changes prompt a judicial body to overturn them. For example, the doctrine of coverture, which considered a married woman's property as subject to her husband's governance, was a common-law principle that conflicted with contemporary ideas of equality and justice.
Common law is often associated with the legal systems of former British colonies or protectorates, such as Ghana and the United States. In these countries, common law was inherited from the British and adapted to local conditions. Over time, common law can evolve through a series of gradual steps, substantially changing over a decade or more without sharp breaks, reducing disruption.
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Common law is more malleable than statutory law
Common law 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 also known as case law. Common law is derived from its original appearance in medieval England, and it is still very much in effect in the US and other countries today. Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, Ghana, and the United Kingdom.
Common law evolves through a series of gradual steps, allowing the law to change substantially over a decade or more without a sharp break, reducing disruption. For instance, in England, common law held that fathers were entitled to custody of the children in case of a divorce. This biased law kept women trapped in marriages until popular thought or civil legislation changed the interpretation of common law.
Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. Common law systems are considerably more complicated than civil law systems. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction.
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Common law draws from institutionalized opinions and interpretations
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 institutionalized opinions and interpretations from judicial authorities and public juries. It is a system of law that has evolved through a series of gradual steps, with each new case building on the precedents set by previous cases. This body of law is more malleable than statutory law as common law courts are not absolutely bound by precedent. However, they can reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal, and social philosophy.
The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts within the same jurisdiction. Common law is based on the principle of stare decisis, which means that past decisions and interpretations are used as a basis for future cases. This is in contrast to civil law, which is a comprehensive, codified set of legal statutes created by legislators. While civil law aims to create order and reduce bias, common law seeks to establish consistent outcomes by applying the same standards of interpretation.
The common law system is prevalent in countries that were former British colonies or protectorates, such as the United States, Ghana, Australia, Canada, Hong Kong, India, and New Zealand. In these countries, the common law system was inherited from the British and has been adapted to the local context. For example, in the United States, common law is considered state law, to which federal judges are expected to defer. Similarly, Ghana's modern-day Constitution, like those before it, has embraced English common law by entrenching it in its provisions.
The evolution of common law has been influenced by social and economic changes, as well as developments in constitutional law. Judges play a crucial role in interpreting legal principles and ensuring that unreason is confined and allowed to expire with the passions that brought it forth. Common law is often associated with the idea of "judge-made law," which has been a subject of debate in the context of a constitutional order based on the sovereignty of the people. However, it is important to recognize that common law is not solely the product of judicial decisions but also involves the input of juries and the adaptation of legal principles to societal changes.
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Common law is the law of the states
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is more malleable than statutory law. Common law courts are not absolutely bound by precedent, but they can reinterpret and revise the law without legislative intervention. The common law evolves through a series of gradual steps, adapting to new trends in political, legal, and social philosophy. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
In the United States, common law is the law of the states, to which federal judges are expected to defer. The U.S. Constitution is the nation's fundamental law, and courts have the responsibility to interpret its meaning, as well as the meaning of any laws passed by Congress. The U.S. common-law system evolved from British tradition during the 17th and 18th centuries. The United States is one of several countries that follow a common-law system, typically those that were former British colonies or protectorates.
Ghana, a former British colony, also follows the English common law tradition. Chapter four of Ghana's Constitution, entitled "The Laws of Ghana", lists the laws applicable in the state, which include the Constitution, enactments made by or under the authority of Parliament, any Orders, Rules, and Regulations made by any person or authority under the Constitution, the existing law, and common law.
Common law differs 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 and the procedures for handling claims, while common law is more flexible and relies on judicial precedent and interpretation.
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Common law is judge-made law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is practised in several countries, including Australia, Canada, Ghana, Hong Kong, India, New Zealand, the United Kingdom, and the United States. It is a judge-made law, which means that it is based on the decisions and interpretations of judges in individual cases, rather than on a written constitution or code. While this gives common law more flexibility than statutory law, it also means that it can be more easily influenced by the biases and personal beliefs of judges.
The idea that common law is judge-made can be traced back to the evolution of contract and tort law in the 19th and 20th centuries. Judges developed these areas of law through a process of analogical reasoning, applying precedents from previous cases to new circumstances. This process allows common law to adapt to changing social, economic, and political conditions. For example, in Ghana, the common law imported during the colonial period has been adapted to reflect the country's evolving socio-economic and political realities.
However, the interpretation and application of common law can also be influenced by societal biases and outdated ideas. For example, the doctrine of coverture, which held that a married woman's property was subject to her husband's control, was based on the belief that a woman's legal personality was subsumed by her husband's. Such doctrines have been criticised for offending contemporary concepts of equality and justice.
To address these concerns, common law systems have mechanisms in place to ensure consistency and fairness. For instance, in most jurisdictions, decisions by appellate courts are binding on lower courts, and recent decisions generally carry more weight than older ones. Additionally, common law relies on detailed records of similar cases and statutes to guide the judge in determining which precedents apply to a particular case. This helps to ensure that the law is applied consistently and fairly, even as it evolves over time.
In conclusion, common law is a dynamic and adaptable system of law that is shaped by the decisions and interpretations of judges. While it provides flexibility and allows for the law to evolve in response to changing social, economic, and political conditions, it is also subject to the biases and beliefs of those who interpret and apply it. As such, it is important for common law systems to have checks and balances in place to ensure that the law remains consistent, fair, and responsive to the needs of the community it serves.
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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 and draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common law is more malleable than statutory law. Common law courts are not bound by precedent but can reinterpret and revise the law to adapt to new trends in political, legal, and social philosophy. The law evolves through a series of gradual steps, so over time, the law can change substantially without a sharp break.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court and the procedures for handling claims. Common law, on the other hand, is more flexible and draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common law is the law of the states, and federal judges are expected to defer to it, even according to the terms of the Constitution. In the US, the distinction between the constitutionality of legislation and the question of its wisdom is critical to political liberty.
