Cecily Zamora
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. In practice, this means that judges in common law systems rely on previous rulings, or caselaw, when deciding on new cases. This differs from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law originated in England during the Middle Ages and has since spread to various countries, including Canada, Australia, and India.
| Characteristics | Values |
|---|---|
| Basis | Judicial decisions or rulings, also known as case law or judge-made law |
| Development | Evolved from a British tradition that spread to North America during the 17th and 18th centuries |
| Application | Common law is applied in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and some states in the United States |
| Nature | Unwritten laws based on legal precedents |
| Purpose | To establish consistent outcomes by applying the same standards of interpretation |
| Benefits | Stability, consistency, efficiency, adaptability, and flexibility |
| Limitations | Past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent |
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What You'll Learn
Common law is a body of unwritten laws
Common law, also known as case law, is a body of law unwritten laws based on legal precedents established by the courts. It originated in England during the Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. The common law, so named because it was common to all the king's courts across England, was developed in the centuries following the Norman Conquest of 1066.
Common law is deeply rooted in stare decisis ("to stand by things decided"), a Latin phrase that reflects the principle that courts follow precedents established by previous decisions. 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 new precedent.
The United States federal courts relied on private publishers for law reports until 1874, after which the government began publishing them. Private sector publishers often add indexing, including references to the key principles of common law, editorial analysis, and similar finding aids. Statutes are generally understood to supersede common law and may codify existing common law, create new causes of action, or legislatively overrule the common law.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It promotes stability and consistency since everyone involved knows that the outcome will be based on previous case law rather than subjective viewpoints. It also allows for adaptability and flexibility, as courts can address situations not originally predicted by lawmakers without requiring changes to statutes and codes.
Common law is practiced in various countries, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom, and previously in its colonies.
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It is based on precedent and stare decisis
Common law is a body of law based on legal precedents established by the courts. It is also known as case law, judicial precedent, or judge-made law. It is deeply rooted in the principle of stare decisis, which is a Latin phrase that means "to stand by things decided". In other words, stare decisis dictates that judges in common law systems must follow the precedents established by previous similar cases when deciding new ones. This ensures stability and consistency in the legal system, as it allows all involved parties to know that the outcome of a case will be based on previous caselaw rather than subjective viewpoints.
The role of judges in common law systems is, therefore, primarily to determine which precedents to apply when deciding a new case. This can be influenced by the specific facts of the case, the jurisdiction, and the availability of relevant caselaw. While judges in common law systems are bound by precedent, they also have the power to establish new precedent in cases of first impression where no relevant precedent exists. In such cases, judges are empowered to resolve the issue and set a new precedent that will be followed in future similar cases.
Common law originated in England during the Middle Ages in the King's Court (Curia Regis), where it was based on procedural remedies rather than substantive rights. Over time, the working out of these remedies has produced the modern system, in which rights are seen as primary. The English common law system was then spread to other parts of the world, including North America during the colonial period, and it continues to be practised in countries such as the United States, Canada, Australia, and India, among others.
While common law provides stability and consistency, it has also been criticised for its potential to marginalise or disempower certain groups through the perpetuation of outdated or biased past decisions. However, common law systems are adaptable to changes in society, as they allow for the establishment of new precedent without requiring changes to statutes or codes. This flexibility is one of the key advantages of common law systems.
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Common law is deeply rooted in English history
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in English history, dating back to the early Middle Ages in the King's Court (Curia Regis) near London. This court system, established after the Norman Conquest of 1066, formed the basis of the common law tradition in England and Wales, which has since spread globally.
The English common law system was influenced by various factors, including local customs, the church, and the canon law of the Christian church. The Anglo-Saxons, particularly under Alfred the Great, had a set of rules resembling those used by the Germanic peoples of northern Europe. The Normans, who spoke French, brought their customary law from Normandy, which was administered by literate clergymen. Over time, a new body of rules emerged in England, adapting to local conditions and the early sophistication of the Anglo-Norman system.
The common law, so named because it was common to all the king's courts across England, was originally focused on procedural remedies rather than substantive rights. However, through the working out of these remedies, the modern system evolved to prioritize rights over procedure. This evolution was largely driven by judges, who, until the late 19th century, were the primary developers of English common law rather than legislators.
The principle of stare decisis, a Latin phrase meaning "to stand by things decided," is central to common law. It refers to the practice of following precedents established by previous judicial decisions. This promotes stability and consistency in the legal system, as outcomes are based on previous case law rather than subjective viewpoints. Common law is adaptable and flexible, allowing courts to address unforeseen situations and respond to changes in society.
The influence of English common law spread globally during the colonial period, particularly to North America, where it formed the basis of the legal systems in what became the United States and Canada. Today, common law continues to be practiced in various countries, including Australia, New Zealand, India, and Hong Kong, showcasing its enduring legacy and impact on legal traditions worldwide.
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It is adaptable and flexible
Common law is adaptable and flexible. It is adaptable because it can be applied to situations that lawmakers did not predict. This is an advantage over statutes and rules, which can never account for every possible scenario. Common law is also flexible because it can respond to changes in society. It does not require lawmakers to pass changes to statutes and codes, which can be a lengthy process or may never happen.
The adaptability of common law is particularly useful in the case of unusual cases. Common law influences the decision-making process in cases where the outcome cannot be determined based on existing statutes or written rules of law. In such cases, judges are empowered to resolve the issue and establish a new precedent.
The flexibility of common law is evident in its ability to accommodate changes in society. For example, the UK has long had a common-law offence of "outraging public decency". In recent years, this ancient common law has been used to prosecute a new intrusive activity called "upskirting". In 2019, the UK Parliament passed the Voyeurism (Offences) Act, which officially made upskirting a crime. This new legislation was inspired by common law.
Common law is also flexible because it can be interpreted differently by different jurisdictions. While it aims to establish consistent outcomes by applying the same standards of interpretation, the specific precedent applied may depend on the traditions of individual jurisdictions. This flexibility allows for some variation in the application of common law across different contexts.
Overall, the adaptability and flexibility of common law are key advantages of this legal system. It allows for a more dynamic and responsive approach to law, which can better address the complexities and changes of society.
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Common law promotes stability and consistency
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in England during the Middle Ages, in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that judges in common law systems rely on previous rulings, or caselaw, when dealing with similar cases later on.
Secondly, common law is adaptable and flexible, as it can address situations that lawmakers may not have predicted or accounted for in existing statutes. This is particularly relevant as it is impossible to legislate for every possible scenario. In these "case of first impression" situations, judges are empowered to resolve the issue and establish new precedents, which can then be used in future similar cases. This flexibility also allows common law to respond to changes in society, without requiring lawmakers to pass changes in statutes, which can be a lengthy process.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It aims to establish consistent outcomes by applying the same standards of interpretation. While civil law systems aim for standardization and reducing bias through comprehensive, codified sets of legal statutes, common law achieves stability and consistency through its reliance on stare decisis and caselaw. This consistency is also reflected in the uniform application of criminal law across Canada, where all provinces use a common law system.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is deeply rooted in stare decisis, which means "to stand by things decided".
Common law originated in England during the Middle Ages in the King's Court (Curia Regis). It was brought to North America during the 17th and 18th centuries. Today, common law is practiced in countries like the US, Canada, the UK, Australia, and India.
Civil law is a comprehensive set of written statutes created by legislators, while common law is based on judicial decisions and unwritten precedents. Civil law clearly defines the cases, procedures, and punishments, whereas common law promotes stability and consistency by relying on past rulings in similar cases.
Yes, common law can inspire new legislation. For example, the UK recently passed the Voyeurism (Offences) Act, which criminalized "upskirting", an offence that was previously prosecuted under the common-law offence of "outraging public decency".
