Anaya Nolan
Common law and case law are often used interchangeably, but there are nuances to their application. 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. Case law, on the other hand, refers to the specific past cases that are used as a reference for common law. In other words, case law is the practical implementation of common law. While common law is the overarching principle, case law is the specific application of that principle in a given situation.
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What You'll Learn
Case law from another state
Case law and common law are often used interchangeably, but there is a subtle distinction. Common law is a body of unwritten laws based on legal precedents, or judge-made laws, that guide court rulings when the outcome is undetermined based on written rules of law. It is a system of law that relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case.
Case law is based on precedents, or the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a legal case that have been resolved by courts or similar tribunals. These past decisions are called "case law" or precedent.
In the US, common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous case law and not on subjective, personal viewpoints.
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Mandatory vs. persuasive authority
Case law and common law are often used interchangeably. Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law and relies on detailed records of similar situations and statutes because there is no official legal code that can be directly applied to a case.
Mandatory authority consists of primary sources of law, such as constitutions, statutes, legislation, and administrative rules, and it is binding and must be followed. A court must abide by the rulings that its Supreme or Appeal Courts have decided as they are mandatory authority in that jurisdiction.
Persuasive authority, on the other hand, is not binding and is often from another jurisdiction. It can be used as a tool to find binding cases. For example, a decision by a lower court is persuasive authority for a higher court. A decision by a court of one jurisdiction is persuasive authority for courts of another jurisdiction. For example, federal court decisions do not bind state courts, but state courts may consider federal court decisions when deliberating cases.
When citing persuasive authority, it is important to explain why the court should follow that precedent. This may include explaining that other courts that have heard the issue have come to the same conclusion or that the decision is based on statutory language or public policy considerations.
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Common law vs. civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that relies on detailed records of similar situations and statutes because there is no official legal code that can be directly applied to a case at hand. The judge presiding over a case determines which precedents apply to that particular case. Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900) being notable examples. Civil law is the most common legal system in the world, practised in about 150 countries.
One key difference between the two systems is their approach to precedent. Common law systems place great weight on precedent, with judges presenting precedents that significantly influence the criteria that a jury uses to interpret a case. Civil law judges, on the other hand, tend to give less weight to judicial precedent. For example, the Napoleonic Code expressly forbade French judges from pronouncing general principles of law.
Another distinction is that common law systems are generally less prescriptive than civil law systems. In a common law system, there are few provisions implied into a contract, so it is important to set out all the terms governing the relationship between the parties in the contract itself. In contrast, civil law systems are more prescriptive, with many provisions implied into a contract. As a result, contracts in civil law systems may be shorter since ambiguities can be resolved by operation of law.
In summary, common law and civil law represent two distinct legal traditions with different approaches to sources of law, judicial precedent, and contract interpretation.
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Common law and marginalization
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. It is a general rule among states but is not codified or the actual law in any way. Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and some states in the US.
The common law system has historically led to the unfair marginalisation or disempowerment of certain groups. Past decisions, whether outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This dynamic creates and recreates margins as a byproduct of the law's indeterminate and changeable nature. For example, common law in England in the 1970s held that fathers, rather than mothers, were entitled to custody of the children in cases of divorce, effectively trapping women in marriages. Feminists in the 19th and early 20th centuries often faced difficulties when fighting for women's rights due to such biases in the common law system.
The marginalisation of communities can also be seen in the enforcement and access to the law. Marginalised communities face difficulties in enforcing and accessing justice due to socioeconomic factors and the nature of the formal legal system. For instance, more than 21% of American families are marginalised by intestacy classifications, and this form of marginalisation is more common among individuals of colour and those with less wealth.
The common law system, with its reliance on precedents, can perpetuate social inequalities and family structure disparities. High-status groups are more likely to conform to traditional family structures, while non-traditional household structures are more prevalent among lower socioeconomic status groups. Race and ethnicity also play a role, with differences in marriage rates and household compositions across racial and ethnic lines.
In conclusion, the common law system, with its focus on legal precedents, has been implicated in the marginalisation of certain groups and communities. The indeterminate nature of the law allows for biases and outdated decisions to persist, impacting the enforcement and access to justice for marginalised individuals and communities. While societal changes can prompt the overturning of precedents, the common law system's influence on the marginalisation of groups is a significant concern that requires ongoing scrutiny and reform.
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Common law in the US
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalised opinions and interpretations from judicial authorities and public juries. In the US, 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.
The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. Common law is practised in several other countries, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
In a common law legal system, relevant case law is essential. When a court makes a particular decision based on a specific set of facts, that decision is binding in future cases that involve the same or closely related issues. Likewise, decisions made by higher courts are typically binding on lower courts in the same jurisdiction.
While common law systems rely on case law and legal precedent to guide their decisions, civil law systems primarily rely on codes and statutes. Civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that outlines everything from the procedures for handling claims to the punishment for offences.
It is worth noting that none of the common law systems in the United States are technically pure common law systems. American courts originally fashioned common law rules based on English common law. However, the US and its many common law states also have countless codified statutes that courts must consider.
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Frequently asked questions
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 also known as case law and relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand. It is a legal principle known as stare decisis, which means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later.
Case law is used to refer to law outside of your jurisdiction that is only persuasive authority, whereas common law is used to refer to binding law within your jurisdiction.
A 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 as either a civil or religious marriage.
