Cameron Miranda
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is one of the two main legal systems used today, alongside civil law. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is understood to mean law that is made by judges, not the declaratory statutes of Blackstone's era. There are two theories of the nature and source of common law: the discovery theory and the judicial legislation theory. The discovery theory states that common law pre-exists the judicial decisions that identify common law norms, whereas the judicial legislation theory affirms that judges are given the power to engage in interstitial legislation.
| Characteristics | Values |
|---|---|
| Definition | "The body of law derived from judicial decisions, rather than from statutes or constitutions." |
| Other names | Case law, judge-made law |
| Sources | Natural law, social norms or customs |
| Principles | Stability, consistency, efficiency, adaptability, flexibility |
| Benefits | Stability, consistency, efficiency |
| Practice | Judges interpret and apply precedent (stare decisis) from case law |
| Comparison | Civil law systems rely primarily on codes and statutes |
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What You'll Learn
Common law vs civil law
Common law and civil law are the two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems. The common law tradition emerged in England during the Middle Ages and was applied within British colonies across continents. 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 less prescriptive than civil law. Judicial decisions are binding and generally, everything is permitted that is not expressly prohibited by law.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It developed in continental Europe and was applied in the colonies of European imperial powers such as Spain and Portugal. Civil law is generally more prescriptive than common law. A civil system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. In a civil law system, the judge's role is to establish the facts of the case and apply the provisions of the applicable code.
In common law systems, the courts can address situations not originally predicted by lawmakers. Common law has been described as flexible, as it can respond to changes in society. In civil law systems, on the other hand, there are clear rules for how judges need to rule for many specific disputes. Unlike common law systems, civil law court decisions are not binding in other cases, even if the facts are similar.
There are roughly 150 countries that have civil law systems, while there are about 80 common law countries. Common law countries include the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. The law of India, Pakistan, and Bangladesh are largely based on English common law due to the long period of British colonial influence during the British Raj.
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Common law marriage
Common law, in general, refers to a body of law based on court decisions and precedents rather than statutes or codes. Common law, also known as case law, draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is one of the two main legal systems used today, the other being civil law. Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and certain former British colonies.
Common-law marriage, also known as a non-ceremonial marriage, is a legal framework that may allow couples to be considered married without having formally registered their union or participated in a marriage ceremony. In other words, it is a marriage that results from the parties' agreement to consider themselves married, followed by cohabitation. Common-law marriage is not common among the U.S., but it is recognized in seven states and the District of Columbia, while nine other states recognize it with some restrictions.
The requirements for common-law marriage vary by state, but generally include the following:
- Both partners must have the legal right or "capacity" to marry, meaning they must be at least 18 years old, of sound mind, and not already married to other people.
- Both partners must intend to be married and hold themselves out to friends, family, and the community as "married," for example, by referring to each other in public as "partner," "spouse," etc. or taking the same last name.
- The couple must live together for a period of time, with the length of time considered on a case-by-case basis.
In states that allow common-law marriage, couples in such a marriage may have the same rights as a married couple who went through a formal marriage process. However, it is important to note that the term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation or other legally formalized relations that differ from the original meaning of common-law marriage.
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Common law jurisdictions
There are two main theories of the nature and source of common law: the discovery theory and the judicial legislation theory. The discovery theory suggests that common law pre-exists the judicial decisions that identify common law norms. Judges do not "make" the common law; they "discover" it in sources such as "natural law" and "social norms or customs". The natural law interpretation states that common law decisions articulate principles of moral reasoning. On the other hand, the judicial legislation theory posits that judges are given the power to engage in interstitial legislation and make incremental changes in the rules within the limits of precedent. Most contemporary legal theorists affirm this view.
Examples of common law jurisdictions include the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. The law of India, Pakistan, and Bangladesh is largely based on English common law due to the historical period of British colonial influence.
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Common law and economics
Common law is a body of law derived from judicial decisions, rather than from statutes or constitutions. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. It is sometimes referred to as case law or "judge-made law".
One example of the intersection of common law and economics is in the area of contract law. Economic analysis can be used to examine the efficiency of common law rules regarding contract formation, interpretation, and remedies for breach of contract. For instance, the common law rule of "consideration", which requires that a promise be supported by consideration (typically some form of payment) to be enforceable, has been criticised by economists as inefficient because it can lead to unnecessary litigation and impede trade.
Another example is in the area of property law, where economic analysis can be used to evaluate the efficiency of common law rules regarding property rights and their impact on economic incentives. For instance, the common law rule of "adverse possession", which allows a person to acquire title to property by openly possessing it for a certain period of time, has been analysed by economists in terms of its effects on investment and land use.
Additionally, common law has been found to have economic implications for start-up firms and the high-tech sector. The mobility of capital in common law countries has contributed to the dynamism of the high-tech sector, as it has made it easier for start-up firms to obtain new capital. However, the increased rate of growth and technological change may also lead to reduced social and income stability and widened income disparities.
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Common law and corporate governance
Common law is a body of law derived from judicial decisions rather than statutes or constitutions. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is also known as case law or ratio decidendi.
In the context of corporate governance, common law plays a significant role in shaping the legal framework that governs companies, particularly in common-law jurisdictions like Australia, Canada, the United Kingdom, and the United States. Corporate governance refers to the system of rules, practices, and processes by which a company is directed and controlled. It involves balancing the interests of various stakeholders, including shareholders, employees, vendors, and the community.
In common-law jurisdictions, corporate governance is influenced by legal principles such as stare decisis, which means that courts and judges must follow previous decisions and rulings when dealing with similar cases. This promotes stability and consistency in the legal system and corporate governance practices. It also allows for adaptability and flexibility, as higher courts can overrule prior decisions that are considered "bad law" without waiting for legislative changes.
The board of directors plays a crucial role in corporate governance within the common-law framework. They are responsible for ensuring that the company's policies incorporate corporate strategy, risk management, accountability, transparency, and ethical business practices. The board should consist of individuals with relevant business knowledge and skills, as well as those who can offer fresh perspectives from outside the company.
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Frequently asked questions
Common law is a body of law based on legal precedents established by the courts. It 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. Civil law systems rely primarily on codes and statutes, while common law systems rely on caselaw and legal precedent to guide their decisions.
Common law promotes stability and consistency as outcomes are based on previous caselaw rather than subjective viewpoints. It is also flexible, as it can respond to changes in society and higher courts can overrule prior decisions.
There are two main theories: the "discovery theory" and the "judicial legislation theory". The discovery theory states that common law pre-exists the judicial decisions that identify common law norms, while the judicial legislation theory states that judges are given the power to engage in interstitial legislation.
A precedent, known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases. Judges presiding over a case determine which precedents apply to that particular case.
