Kara Sears
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 term that means to stand by things decided. In common law systems, judges make decisions based on previous rulings, or precedents, made in similar cases. Common law is largely based on precedent and judicial rulings made in previous similar cases, rather than statutes. It is a flexible system that can respond to changes in society and address situations not originally predicted by lawmakers. It is one of the two main legal systems used today, alongside civil law.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of law based on court decisions rather than codes or statutes. |
| Basis | Court decisions, also known as case law or caselaw. |
| Sources | Judicial decisions, treatises, legal precedent, and in some cases, statutes. |
| Precedent | Stare decisis, a Latin phrase meaning "to stand by things decided". |
| Flexibility | More flexible than civil law as it can respond to changes in society. |
| Adaptability | Can address unforeseen situations not predicted or covered by lawmakers. |
| Efficiency | Court proceedings are shorter, saving time and money. |
| Jurisdiction | Decisions are binding only in a particular jurisdiction. |
| Influence | Influenced by the English legal system, it is now used in the US, the UK, Australia, Canada, Hong Kong, India, New Zealand, and some former colonies. |
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What You'll Learn
Common law is a body of unwritten laws
Common law originated in England, where it was common to all the king's courts. It was then spread to Wales, Ireland, and overseas colonies, and later to other parts of the world, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and other members of the Commonwealth. 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.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, the facts of the case must be ascertained. Then, any relevant statutes and cases must be located. The courts then extract the principles, analogies, and statements by various courts to determine how a new case is likely to be ruled on based on past decisions. Finally, all the information is integrated, and the law is applied to the facts of the present case.
Common law is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the procedures for handling claims and the punishments for offenses, and it aims to create order and reduce bias in the legal system. On the other hand, common law is flexible and adaptable to unforeseen situations, as it does not require lawmakers to pass changes in statutes and codes. Instead, higher courts can overrule prior decisions and establish new precedents.
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Common law is based on legal precedents
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin term that roughly translates to "to stand by things decided". In other words, common law is based on the idea that judges should follow previous rulings, or case law, when deciding similar cases. This means that judges need only follow precedent when making decisions, which can make court proceedings more efficient, saving time and money.
Common law is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law systems rely primarily on codes and statutes, and centre around a comprehensive code of statutes that outline everything from procedures for handling claims to punishments for offences. Civil law systems aim to create order and reduce bias in the application of laws.
Common law, on the other hand, draws from institutionalised opinions and interpretations from judicial authorities and public juries. It is adaptable to unforeseen situations, as it does not require lawmakers to pass changes in statutes and codes. Instead, higher courts can overrule prior decisions and establish new precedent. This flexibility allows common law to respond to changes in society.
The common law system originated in England and has been administered by its courts since the Middle Ages. It was then spread to Wales, Ireland, and overseas colonies, and later to other parts of the world, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and other members of the Commonwealth. 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.
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Common law is deeply rooted in stare decisis
Common law is a body of law based on court decisions, or case law, rather than codes or statutes. It is a system of law that is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law is centred on the principle that judges need to follow earlier decisions and rulings when dealing with similar cases later.
Common law, also known as judicial precedent, judge-made law, or case law, is primarily developed through judicial decisions rather than statutes. It is a flexible system that can respond to changes in society. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. However, in a ""case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent.
The common law system originated in the practices of the courts of the English kings in the centuries following the Norman Conquest. It was spread to Wales, Ireland, and overseas colonies by England, and later by the British Empire. Many former colonies, including the United States, retain the common law system today.
Common law is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law systems rely primarily on codes and statutes, and centre around a comprehensive code of statutes that outlines everything from the procedures for handling claims to the punishment for offences. Unlike common law, civil law court decisions are not binding in other cases, even if the facts are similar.
While common law is deeply rooted in stare decisis, there have been criticisms of its rigid adherence to precedent. In the late 19th century, Oliver Wendell Holmes Jr. commented that it was "revolting" to have no better reason for a rule of law than that it was laid down in the time of Henry IV. Despite this, stare decisis remains a fundamental principle of common law, ensuring consistency and predictability in the application of legal precedent.
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Common law is flexible and adaptable
Common law, also known as case law or judge-made law, is a body of law primarily developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law is centred around the idea that courts and judges need to follow earlier rulings when dealing with similar cases later.
However, common law is not rigid. It is flexible and adaptable in several ways. Firstly, it can adapt to unforeseen situations not originally predicted by lawmakers. When a similar case has been resolved, courts typically follow the precedent set in that decision. However, in a ""case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent. This flexibility allows common law to respond to changes in society.
For example, in R (Soma Oil and Gas Ltd) v Director of the SFO [2016] EWHC 2471, the judge perceived that the issues before him could not be justly dealt with by simply applying familiar authorities. He considered the economic consequences of a judgment that put legal principle before pragmatism, and this influenced his decision. This demonstrates how common law can encourage good judgment by allowing judges to consider the specific circumstances of each case and make decisions that are reasonable and equitable.
Additionally, common law is adaptable in that it does not require lawmakers to pass changes in statutes and codes. Instead, higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers to act. This can save time and increase efficiency in court proceedings.
Common law's flexibility and adaptability have led to its continued use in many countries today, including the United States, Canada, India, Australia, and the United Kingdom.
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Common law is used in many countries
Common law is a body of law primarily developed through judicial decisions in previous similar cases, rather than statutes. Common law is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law requires courts and judges to follow earlier rulings when dealing with similar cases. Common law is flexible and adaptable, allowing higher courts to overrule prior decisions and empowering judges to resolve issues and establish new precedents in "cases of first impression".
Common law is one of the most prevalent legal systems in the world, employed by the greatest number of people compared to any single civil law system. Approximately 40 countries and territories use common law, and about 60 more use it as part of a mixed legal system. Common law originated in England following the Norman Conquest of 1066 and spread around the world as England built its empire. Today, common law is used almost exclusively by countries that were once British colonies, including the United States, Canada, Australia, New Zealand, and India.
The civil law system, which originated in mainland Europe, is the other most widespread legal system in the world. Civil law is centred around a comprehensive code of statutes that outlines procedures for handling claims and punishments for offences. Civil law systems are found in France, the Benelux countries, Italy, Romania, Spain, and their former colonies, as well as in Germany, Austria, Russia, Switzerland, Estonia, Latvia, and many other countries.
While common law systems rely on caselaw and legal precedent, civil law systems primarily focus on codes and statutes. Civil law is regularly updated and aims to create order and reduce bias in the application of laws. In contrast, common law systems are flexible and can respond to changes in society without requiring changes in statutes. Commercial parties often choose the law of England and Wales, particularly in contracts between parties in former British colonies and members of the Commonwealth.
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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.
Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. It is deeply rooted in stare decisis, which means "to stand by things decided". In other words, courts follow precedents established by previous decisions.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It centres around a clear code of statutes that outlines the procedures for handling claims and the punishment for offences. Civil law systems rely on codes and statutes, whereas common law systems rely on caselaw and legal precedent.
Common law is practised in many former British colonies, including Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. Approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law.
