Cecily Zamora
Common law is a legal system that stands in contrast to civil law. It is a body of law based on court decisions and past case law, rather than codes or statutes. Common law is more malleable than statutory law, as it evolves through a series of gradual steps, adapting to new trends in political, legal, and social philosophy. It is an Anglo tradition, historically influenced by the English legal system, and is still used in several countries today, including the US, Canada, India, and Australia. In a common law system, both statutory and judge-made law are in effect, and judges are tasked with interpreting the meaning of a particular law. This interpretation can be influenced by a judge's political beliefs, and the intent of the lawmaker may be considered when determining the meaning of a law.
| Characteristics | Values |
|---|---|
| More malleable than statutory law | Common law courts can reinterpret and revise the law without legislative intervention |
| Evolves gradually over time | Common law has been evolving for many centuries |
| Based on precedent | Judges rely on the precedent of past cases |
| Flexible | Common law can respond to changes in society |
| Addresses situations not predicted by lawmakers | Higher courts can overrule prior decisions as "bad law" |
| Stable and consistent | Everyone knows the outcome will be based on previous caselaw |
| Influenced by socio-economic and political realities | Ghana's common law system adapts to the country's changing needs |
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What You'll Learn
Common law vs civil law
Legal systems around the world are generally divided into two traditions: the Anglo-Saxon tradition of common law and the Latin/Roman tradition of civil law. There are about 80 common law countries and 150 civil law countries. Common law countries are typically those that were former British colonies or protectorates, including the United States.
Common law is more malleable than civil law. Common law courts are not bound by precedent but can, under certain conditions, reinterpret and revise the law without legislative intervention. The common law evolves through a series of gradual steps, so the law can change substantially over time without sharp disruptions.
In a common law system, both statutory and judge-made law are in effect, and legal decisions rely on the precedent of past cases. Common law is based on the judicial principle of 'stare decisis', or the binding aspect of precedent. Precedents are maintained through court records and historical documentation in collections of case law. Common law was originally developed through custom before laws were written down and is generally uncodified, meaning there is no comprehensive compilation of legal rules. Judicial decisions are regarded as the most important source of law, giving judges an active role in developing rules.
In a civil law system, by contrast, codes are used to cover all eventualities and judges have a more limited role of applying the law to each case. Civil law systems are generally more prescriptive than common law systems. There are a number of provisions implied in a contract under civil law, and less importance is placed on setting out all the terms in the contract itself. In a civil law system, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
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Common law's flexibility
Common law is a legal system that can be traced back to England during the Middle Ages. It is a system that is based on court decisions and judicial precedents, rather than a strict adherence to codified statutes. This gives common law a unique flexibility, allowing it to adapt to changing socio-economic and political realities.
The flexibility of common law is particularly evident in its ability to address situations not originally predicted or accounted for by lawmakers. This is because common law is not bound by a strict set of codes or statutes. Instead, it relies on the interpretation of past cases and judicial precedents, allowing for a more dynamic and adaptable legal system. This flexibility is further enhanced by the ability of higher courts to overrule prior decisions as "bad law" without requiring legislative intervention.
For example, Ghana follows the English common law tradition inherited from its colonial past. The laws of Ghana are thus a modified version of imported law that continuously adapts to the changing socio-economic and political landscape of the country. This flexibility ensures that the legal system can keep pace with the evolving needs and realities of the nation.
In contrast to common law, civil law systems, prevalent in mainland Europe and other parts of the world, rely primarily on codified statutes and a comprehensive set of rules. While civil law provides clear guidelines for judges, it may struggle to adapt to changing societal needs and values. This is because civil law systems require lawmakers to pass changes in statutes, which can be a lengthy and challenging process.
The flexibility of common law also extends to its ability to incorporate new trends in political, legal, and social philosophy. Common law courts can reinterpret and revise laws to align with these trends, ensuring that the legal system remains relevant and responsive to societal changes. This incremental approach to legal evolution reduces disruptive effects and promotes stability and consistency in the long run.
In conclusion, the flexibility of common law is a key characteristic that sets it apart from other legal systems. It allows for a dynamic and adaptable approach to law, ensuring that legal systems can respond to the unique needs and changing realities of their respective societies.
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Common law in the US
The common law is an Anglo tradition, historically influenced by English legal tradition. In the United States, common law is a system where both statutory and judge-made law are in effect. Legal decisions rely on the precedent of past cases, which are considered binding, and are more influential than statutory law. Common law is more malleable than statutory law, as it evolves through a series of gradual steps, adapting to new trends in political, legal, and social philosophy.
The US common law system was originally based on English common law, but it has since developed its own rules and precedents. While most common law is found at the state level, there is a limited body of federal common law, which is created and applied by federal courts. State legislatures can also codify common law rules to give them permanence, modify them, or replace them with new legislation. For example, in 2018, the California Supreme Court issued a ruling 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 of the Labor Code that codified and expanded on the ruling, giving it statutory permanence.
In the US, common law decisions reflect both precedent and policy judgment, drawn from economics, the social sciences, business, and decisions of foreign courts. For instance, in the early 20th century, Louis Brandeis, later appointed to the United States Supreme Court, became known for his use of policy-driving facts and economics in his briefs.
While common law systems rely on case law and legal precedent, civil law systems, which originated in mainland Europe, rely primarily on codes and statutes. In a civil law system, judicial decisions are based on statutes passed by an elected legislature, whereas in a common law system, judges are appointed and can choose past cases that align with their political beliefs.
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Common law in Ghana
Ghana follows the English common law tradition inherited from British colonisation. The laws of Ghana are mostly a modified version of imported English laws that are continuously adapting to the changing socio-economic and political realities of the country. Ghana's common law system is enshrined in the country's 1992 Constitution, which is the current constitution following three others that were enacted in 1960, 1969, and 1979.
The common law in Ghana is defined as the rules generally known as the common law, the rules generally referred to as the doctrines of equity, and the rules of customary law, including those determined by the Superior Court of Judicature. The common law in Ghana is malleable, as common law courts are not absolutely bound by precedent. They can reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal, and social philosophy.
Article 125(3) of Ghana's 1992 Constitution states that the country's judicial power shall be vested in the Judiciary. Article 127 of the Constitution mandates the independence of the judiciary, and Article 129 states that the Supreme Court shall be the final court of appeal. The Supreme Court may depart from its previous decisions if it appears right to do so. In addition to the Supreme Court, the Constitution provides for a Court of Appeal and a High Court, in descending hierarchical order.
In a common law system, both statutory and judge-made law are in effect, and legal decisions rely on the precedent of past cases. In contrast, a civil law system involves rendering legal decisions by interpreting codified statutory law, where past cases may be helpful but are not binding. The common law is an Anglo tradition typically found in legal systems historically influenced by the English legal tradition.
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Common law and the Constitution
The common law is a legal system that can be traced back to England during the Middle Ages. It is a body of law based on court decisions and precedent, also known as case law. In a common law system, both statutory and judge-made laws are in effect, and legal decisions rely on the precedent of past cases. This is in contrast to a civil law system, in which legal decisions are rendered by interpreting codified statutory law, and past cases are not binding.
The United States Constitution, the oldest surviving constitution in the world, is a foundational text that speaks to all Americans. It is a significant area of public law that governs the foundations of government, the powers of government, and the rights of individuals in relation to government power. American constitutional law is an important area of study for political science, especially for those majoring in political science in American higher education.
The common law system has influenced the development of the US Constitution and the country's legal system. The US Code can be used by judges, but precedent from past cases generally carries more weight in judicial decisions. This is because common law courts are not absolutely bound by precedent and can reinterpret and revise the law to adapt to new trends in political, legal, and social philosophy. The common law is more malleable than statutory law and can evolve through a series of gradual steps, reducing disruptive effects.
For example, in the early 20th century, Louis Brandeis, who was later appointed to the United States Supreme Court, became known for his use of policy-driving facts and economics in his briefs. Brandeis relied on facts rather than Latin maxims, which are now deprecated. Common law decisions today reflect both precedent and policy judgments drawn from economics, the social sciences, business, and decisions of foreign courts.
In conclusion, common law and the Constitution are interconnected in the US legal system. The common law provides a flexible and adaptable approach to legal decision-making, while the Constitution serves as the foundational text upon which the government is erected. Together, they shape the legal and political landscape of the United States.
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Frequently asked questions
Common law is a legal system that is based on court decisions and precedent rather than codes or statutes. It is an Anglo tradition that is typically found in legal systems historically influenced by English legal traditions.
In a common law system, both statutory and judge-made law are in effect, and legal decisions rely on the precedent of past cases. In a civil law system, legal decisions are rendered by interpreting codified statutory law, and past cases may be helpful but are not binding. Civil law systems have clear rules for how judges need to rule for specific disputes.
Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous case law and not on subjective, personal viewpoints. Common law is also flexible and can respond to changes in society.
Many countries around the world use common law, including the US, Canada, India, Australia, and Ghana.
