Keith Mack
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 phrase that means to stand by things decided. Common law is flexible and adaptable, responding to changes in society without requiring lawmakers to pass changes in statutes and codes. It is one of the two main legal systems used today, alongside civil law systems, which rely primarily on codes and statutes. Common law originated in England and has since spread to various parts of the world, including the United States, Canada, Australia, and India. It is characterized by its reliance on judicial decisions, institutionalized opinions, and interpretations from judicial authorities and public juries.
| Characteristics | Values |
|---|---|
| Definition | A "body of law" based on court decisions rather than codes or statutes |
| Basis | Judicial decisions, also known as caselaw or case law |
| Other names | Judicial precedent, judge-made law |
| Origin | Practices of the courts of English kings in the centuries following the Norman Conquest |
| Current use | Used in approximately one-third of the world's jurisdictions, including Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States |
| Benefits | Stability, consistency, efficiency, adaptability, flexibility |
| Stages of research and analysis | Ascertain the facts, locate relevant statutes and cases, extract principles, analogies, and statements, integrate lines and reasons, apply the law to the facts |
| Nature of decisions | Binding only in a particular jurisdiction, with some courts having more power than others |
| Nature of precedents | Maintained over time through court records and historically documented in collections of case law |
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What You'll Learn
Common law vs civil law
Common law and civil law are two different legal systems with distinct characteristics, and they are the two main legal systems used in the world today. Common law, also known as case law or judge-made law, is a body of law that is primarily based on judicial decisions and legal precedent rather than statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, common law courts follow precedents established by previous rulings when dealing with similar cases. Common law originated in England during the Middle Ages and was spread to British colonies across the world, including the United States. It is adaptable and flexible, as it can address unforeseen situations and respond to societal changes without requiring changes to statutes. Common law also promotes stability and efficiency, as judges can make shorter court proceedings by simply following precedent.
On the other hand, civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that outline procedures and punishments. Civil law systems are more prescriptive and rely primarily on these codes and statutes rather than judicial precedent. In civil law, judges have a more limited role of applying the law to a specific case and interpreting the text of the code, and their decisions are not binding in other cases, even if the facts are similar. Civil law was developed in continental Europe and was spread by European imperial powers such as Spain and Portugal. It was also adopted by countries such as Russia and Japan, which previously had distinct legal traditions.
In a common law jurisdiction, determining "what the law is" in a given situation involves several stages of research and analysis. It requires ascertaining the facts, locating relevant statutes and cases, extracting principles and statements from various courts, and then integrating all the information to determine the applicable law. The decisions of higher courts and more recent rulings generally carry more weight. While common law is more flexible and adaptable, civil law provides clearer rules for judges to follow in specific disputes.
In terms of contracts, common law places more importance on setting out all the terms governing the relationship between the parties in the contract itself, as there are generally fewer implied provisions. In contrast, civil law systems imply more provisions into contracts and place less importance on explicitly stating all the terms, as inadequacies can be resolved by operation of law. Additionally, in civil law jurisdictions, unless the contract specifies arbitration, it will be enforced by administrative courts.
Overall, common law and civil law represent two distinct legal traditions with unique characteristics, and many countries today have adopted features from one or both systems into their legal frameworks.
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Judicial precedent
Common law, also known as judicial precedent, is a body of law 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". This means that common law is based on the principle that courts and judges need to follow earlier decisions and rulings, or case law, when dealing with similar cases.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This involves ascertaining the facts, locating relevant statutes and cases, extracting principles, analogies, and statements by various courts, and then integrating all the information to determine "what the law is" and applying it to the facts of the case. The decisions of higher courts or legislatures carry more weight than those of lower courts.
The common law system evolved from English law and was spread to many parts of the world, including North America during the colonial period, and to the British colonies, including India, Australia, Canada, Hong Kong, New Zealand, and the United Kingdom. Many former colonies continue to use the common law system today, and approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law.
Common law is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law systems provide clear rules for judges to follow in specific disputes and outline procedures for handling claims and punishments for offences. In contrast, common law is more flexible and adaptable to unforeseen situations as it is not bound by statutes and codes. Judges in common law systems have the power to reinterpret and revise the law to adapt to new trends and societal changes.
One advantage of common law is its stability and consistency, as it provides a predictable framework for decision-making based on previous case law. It also promotes efficiency in court proceedings, as judges only need to follow precedent when making decisions. However, common law has also been criticised for perpetuating outdated or biased decisions that can shape future rulings until societal changes prompt a judicial body to overturn the precedent.
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Pros and cons
Pros of Common Law
Common law is a body of law based on court decisions rather than codes or statutes. It is a flexible system that can adapt to unforeseen situations and changes in society. Here are some advantages of common law:
- Stability and Consistency: Common law promotes stability and consistency because everyone involved knows that the outcome will be based on previous case law, not subjective viewpoints.
- Efficiency: Judges only need to follow precedent, so court proceedings can be shorter, saving time and money.
- Adaptability: Common law can address situations not predicted by lawmakers. It can also respond to changes in society without waiting for lawmakers to pass new statutes.
- Flexibility: Common law is more flexible than statutory law. Judges can reinterpret and revise the law without legislative intervention.
- Unified Legal System: Common law established a unified legal system, supplanting local folk courts and manorial courts. It provides a consistent framework across jurisdictions, making it attractive for commercial parties seeking predictability and simplicity in their contractual relations.
Cons of Common Law
While common law offers stability and flexibility, there are also some disadvantages:
- Outdated or Biased Precedents: Past decisions can continue to shape future rulings, even if societal changes have made them outdated or biased. This can make it difficult for marginalised groups to pursue favourable rulings until civil legislation changes the interpretation. For example, common law in England until the 1970s entitled fathers instead of mothers to custody of children in divorce cases, effectively trapping women in marriages.
- Complexity: Common law systems can be complex, requiring multiple stages of research and analysis to determine "what the law is" in a given situation. This complexity may make it challenging for individuals to understand their legal rights and obligations without specialised knowledge.
- Limited Legislative Control: In common law systems, judges play a significant role in creating and interpreting the law, which may be seen as a drawback if a more rigid adherence to codified laws is preferred.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs when two people who are legally capable of being married and intend to be married, live together as a married couple and hold themselves out to the world as a married couple. This means that the married couple never had a formal wedding ceremony and never obtained a marriage license or marriage certificate.
Common-law marriage is often used incorrectly to describe various types of couple relationships, such as cohabitation (whether or not registered) or other legally formalized relations. Although these interpersonal relationships are often called "common-law marriage", they differ from its original meaning in that they are not legally recognized as "marriages", but may be a parallel interpersonal status such as a domestic partnership, conjugal union, or civil union.
In states that allow common-law marriage, couples in a common-law marriage have the same rights as a married couple who went through a formal marriage process. Generally, a married couple is considered common-law married when they live together for a period of time (although there is no statutory requirement for the length of time), behave as a married couple, and hold themselves out to friends, family, and the community as "married". Both partners must have the legal right or "capacity" to marry, which usually means they must be at least 18 years old, of sound mind, and not already married to other people.
The original concept of a "common-law" marriage is one that is considered valid by both partners but is not formally recorded with a state or religious registry or celebrated in a formal civil or religious service. In effect, the act of the couple representing themselves to others as being married and organizing their relationship as if they were married means they are married. Not all jurisdictions permit common-law marriage, but they will typically respect the validity of such a marriage lawfully entered in another state or country.
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Common law in the modern world
Common law, also known as judicial precedent, judge-made law, or case law, is a body of law based on prior court decisions (judicial precedent) rather than statutes. It originated in the early Middle Ages in the English King's Court (Curia Regis) and has been administered by the courts of England since.
Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law. Many former colonies, including the United States, retain the common law system. Common law has also influenced the legal systems of most Commonwealth countries, such as India, and Ghana, which has embraced English common law in its modern-day constitution.
Common law is often contrasted with civil law, which is the other main legal system used today. Civil law, which originated in mainland Europe, is a codified system based on specific codes and statutes that outline procedures and punishments. Unlike common law, civil law systems do not consider judicial decisions to be binding in other cases, even if the facts are similar.
Common law is known for its flexibility, adaptability, stability, and efficiency. It can respond to changes in society without requiring lawmakers to pass changes in statutes and can address situations not originally predicted by lawmakers. Common law promotes stability and consistency because everyone involved knows that the outcome will be based on previous caselaw rather than subjective viewpoints. Court proceedings can also be shorter, saving time and money.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This includes ascertaining the facts, locating relevant statutes and cases, and extracting principles, analogies, and statements by various courts. While common law courts generally follow precedent, they can reinterpret and revise the law when there is an extraordinarily good reason to do so.
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Frequently asked questions
Common law is a body of law unwritten laws based on legal precedents established by the courts. It is also known as case law or judge-made law.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It centres around a comprehensive code of statutes that outline the procedures for handling claims and the punishment for offences. Common law, on the other hand, relies on case law and legal precedent to guide decisions.
Common law promotes stability and consistency as it is based on previous case law rather than subjective, personal viewpoints. It is also efficient as judges only need to follow precedent, saving time and money. It is adaptable to unforeseen situations and flexible as it can respond to changes in society.
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