Cameron Miranda
Common law is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England and was spread to North America during the colonial period of the 17th and 18th centuries. Common law is practised in the US, Canada, the UK, and several other countries. While the US and UK operate under a dual system of common and civil law, common law prevails in Canada, except in Quebec, where civil law predominates. Common law is flexible and adapts to changing circumstances, as judges can announce new legal doctrines or change old ones.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Origin | Common law in the US and UK originates from medieval England. |
| Current Status in the US and UK | Both the US and UK operate under a dual system of both common and civil law. |
| Current Status in Canada | Canada has a separate federal and provincial legal system. All but one of the provinces of Canada use a common law system for civil matters (the exception being Quebec, which uses a French-heritage civil law system). |
| Common Law Marriage | Common-law marriage is a legal framework that may allow couples to be considered married without a formal ceremony. However, it is not recognized in all jurisdictions, and the term is often used incorrectly to describe various types of cohabiting relationships. |
| Influence on Decision-Making | 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. |
| Flexibility | Common law is flexible and can adapt to changing circumstances as judges can announce new legal doctrines or change old ones. |
| Relationship with Indigenous Law in Canada | Canada's legal system also incorporates Indigenous law, with Aboriginal rights and treaty rights recognized and protected by the Constitution. |
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What You'll Learn
Common law's origins in medieval England
Common law is a legal system that originated in England and is now used in various forms in several countries, including the United States, Canada, and the United Kingdom. It is a system of law that is based on precedents set by previous legal decisions, rather than on statutory law or codes. The doctrine of precedent, or stare decisis, is a fundamental principle of common law, which means "to stand by things decided." This means that similar facts should be treated similarly, and judges are bound by, and therefore follow, the decisions of courts higher up in the hierarchy. This creates predictability and consistency in the law.
The roots of common law can be traced back to medieval England, where a unified legal system was established following the Norman Conquest in 1066. Before this, legal practices varied across the country, with different customs and traditions in different regions. The Norman Conquest brought a more centralized system of government and law, with the king as the ultimate source of legal authority.
In the early medieval period, justice was often administered locally, with local customs and traditions influencing legal decisions. Over time, a more unified system of law began to emerge, with the king's courts playing a central role. The Court of King's Bench, for example, was established in the 13th century and had jurisdiction over all matters of common law. This court played a crucial role in developing the common law system, as its decisions created precedents that were followed by other courts throughout England.
The Magna Carta, or Great Charter, was another important influence on the development of common law. Signed in 1215 by King John, the Magna Carta established certain rights and liberties for English subjects, and it limited the power of the monarch. This document asserted the principle that everyone, including the king, was subject to the law. It also established the right to due process and fair trial, which became fundamental principles of common law.
Over time, a body of common law began to emerge as judges made decisions that were recorded and used as precedents for future cases. This body of law grew and developed over the centuries, with new precedents being set and old ones being overturned or modified. The common law system was flexible and adaptable, allowing it to evolve and change as society changed. It also provided a degree of stability and predictability, as similar cases were decided in a similar manner.
In conclusion, the origins of common law in medieval England laid the foundation for a legal system that has had a profound influence on the legal traditions of many countries around the world. The principles of stare decisis, the establishment of a centralized legal system, and the influence of documents like the Magna Carta all contributed to the development of common law as a distinct and influential legal tradition.
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Common law in Canada
Canada's legal system is based on a combination of common law and civil law. Common law, in this context, refers to law that is not written down as legislation but evolves from a system of rules based on precedent. This means that judges refer to past decisions to guide them in making rulings on similar cases. Common law is flexible and adapts to changing circumstances, as judges can announce new legal doctrines or change old ones.
Canada's common law system was inherited from the English legal system, which was introduced by explorers and colonists in the 17th and 18th centuries. After the Battle of Quebec in 1759, the country fell under English common law, except for Quebec, which follows a civil law system based on the French Code Napoléon (Napoleonic Code).
In the Canadian context, the term 'common law' also refers to a person's marital status. A person is considered to have a common-law partner if they are living with someone they are not legally married to, but are in a conjugal relationship with. The definition of a common-law relationship varies across Canada's provinces and territories, with most recognising it after 1 to 3 years of continuous cohabitation or if the couple has a child together.
Common-law relationships are recognised in Canada, but they do not have equal rights to traditional marriages. For example, common-law spouses are not treated the same as legally married spouses when it comes to inheritance under succession laws, except in BC, Manitoba, Saskatchewan, and the Northwest Territories. To ensure a common-law spouse is protected in the event of their partner's death, it is important to create a will naming them as a beneficiary.
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Common law in the US
At its core, common law is a system of law that emerges from the decisions of judges and courts, who interpret laws and resolve disputes based on custom, precedent, and tradition. This is in contrast to civil law systems, which primarily rely on codified statutes and legal codes enacted by legislative bodies. While the US common law system has been heavily influenced by English common law, it has evolved independently and has its own unique features and principles.
One of the key characteristics of common law is the principle of *stare decisis*, which means "to stand by things decided." This principle holds that courts should follow the decisions of higher courts within the same jurisdiction and their own prior decisions when faced with similar cases. Stare decisis promotes consistency, predictability, and stability in the law, ensuring that similar disputes are resolved in a similar manner.
The US common law system is a hierarchical structure, with the Supreme Court at the apex. The decisions of the Supreme Court are binding on all lower federal and state courts. If a lower court judge issues a decision that conflicts with a higher court's precedent, that decision can be overturned on appeal. This hierarchical structure ensures a degree of uniformity and consistency in the interpretation and application of the law across the country.
In conclusion, common law in the US forms the bedrock of the nation's legal system, shaping the way laws are interpreted and disputes are resolved. It is a dynamic and evolving body of law that guides the decisions of judges, lawyers, and legal scholars across the country. Understanding common law is essential for anyone seeking to navigate the complexities of the American legal landscape. While it shares similarities with common law in other jurisdictions, the US common law system has developed its own distinct characteristics and principles over time. The common law system in the US continues to play a pivotal role in shaping the country's legal framework and influencing legal practices.
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Common law in the UK
English criminal law derives its main principles from common law. The main elements of a crime are the actus reus (doing something which is criminally prohibited) and mens rea (having the requisite criminal state of mind, usually intention or recklessness). Murder, for example, remains a common-law crime rather than a statutory offence. Common law is made by sitting judges who apply statutory law and established principles derived from the reasoning of earlier decisions.
Civil cases usually start in the County Court and appeals go to the High Court and then the Court of Appeal. The tribunals system has its own structure for dealing with cases and appeals, but decisions from different chambers of the Upper Tribunal and the Employment Appeals Tribunal may go to the Court of Appeal. The courts structure covers England and Wales, while the tribunals system also covers Northern Ireland and Scotland in some cases.
The UK's relationship with international law is dualist, meaning that international treaties must be formally ratified by Parliament and incorporated into statute before becoming binding in the UK. However, the UK's previous integration with EU law allowed for direct effects on the domestic law of its constituent states.
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Common-law marriage
In the US, Canada and the UK, common-law marriage is a term used to describe a couple that lives together in a marriage-like or conjugal relationship without legally registering their union. While the term is widely used, it is often misused, creating confusion about the legal rights of unmarried partners.
In Canada, common-law marriages are not recognised. However, informal cohabitation relationships are recognised for certain purposes, creating legal rights and obligations. For instance, common-law couples in Canada have the same rights and responsibilities as married couples, but this depends on their provincial law. For immigration purposes, a couple must have lived together for at least one year in a conjugal relationship to be recognised as a common-law partnership.
In the US, common-law marriages were historically recognised in the country's overseas colonies. Today, the term is often used to refer to cohabiting couples, regardless of the legal rights involved.
In the UK, a 2008 poll showed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples.
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Frequently asked questions
Common 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.
Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Common law, on the other hand, is flexible and adapts to changing circumstances as judges can announce new legal doctrines or change old ones.
US common law originates from medieval England and was spread to North America during the colonial period in the 17th and 18th centuries. All US states, except Louisiana, have either implemented reception statutes or adopted common law by judicial opinion.
Canada's legal system is based on a combination of common law and civil law. Nine of the provinces, excluding Quebec, and the federal territories follow the common law legal tradition. Common law prevails in criminal law throughout Canada.
The UK operates under a dual system of both common and civil law. The Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts in England, Wales, and Northern Ireland.
