Cameron Miranda
Judge-made common law, also known as case law, is a body of unwritten law primarily developed through judicial decisions and precedents rather than statutes. It is deeply rooted in stare decisis, a Latin term that means to stand by things decided, where judges in common law countries create rules and interpretations that become controlling for future cases. The presiding judge determines which precedents to apply in deciding each new case, and while lower courts generally follow the example set by higher courts, they can modify or deviate from precedents if they are outdated or if the current case is substantially different.
| Characteristics | Values |
|---|---|
| Definition | "The body of law derived from judicial decisions, rather than from statutes or constitutions." |
| Other names | Judicial precedent, case law, unwritten law (lex non scripta) |
| Origin | Judge-made common law was the primary source of law for several hundred years before the creation of statutory law. |
| Basis | Precedent, also known as stare decisis, which means "to stand by things decided". |
| Sources | Institutionalised opinions and interpretations from judicial authorities and public juries. |
| Applicability | Common law systems are used in several countries today, including the United States. |
| Pros | Stability and consistency in the legal system. |
| Cons | Past decisions may marginalise or disempower certain groups, and it can be difficult to overturn these precedents. |
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What You'll Learn
Common law vs civil law
Common law, also known as judge-made or case law, is a body of unwritten laws based on legal precedents established by courts. It is deeply rooted in stare decisis, which means "to stand by things decided". Common law originated in medieval England and is the primary source of law in many former British colonies or protectorates, including the United States. In a common law system, judges play a crucial role in shaping the law by interpreting and applying precedents to new cases. While common law may incorporate certain statutes, it is primarily based on judicial rulings made in previous similar cases.
In contrast, civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, notably with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is the most common legal system globally, practised in about 150 countries. Unlike common law, civil law relies on legal codes as the primary source of law. Civil law is generally more prescriptive than common law, and civil law judges tend to give less weight to judicial precedent.
One key difference between the two systems is their approach to contracts. In a common law system, there are typically few provisions implied into a contract, so it is important to set out all the terms governing the relationship between the parties within the contract itself. In contrast, civil law systems imply various provisions into contracts, and there is less emphasis on including all terms in the contract since inadequacies or ambiguities can be resolved by operation of law.
Another distinction is the clarity and predictability of the laws themselves. Civil law systems aim to provide clear and comprehensive codes that define the cases that can be brought to court, the procedures for handling claims, and the punishments for offences. This standardisation aims to create order and reduce bias in the legal system. In contrast, common law systems rely on stare decisis, where past judicial decisions form the basis of evaluation for future cases. While this can promote stability and consistency, it also means that societal changes may be required to prompt a judicial body to overturn outdated or biased precedents.
In summary, common law and civil law represent two distinct approaches to legal systems. Common law is more flexible and adaptable, with judges playing a central role in interpreting and applying precedents. Civil law, on the other hand, offers a more standardised and codified approach, relying primarily on comprehensive legal codes.
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The evolution of common law
The early development of case law in the 13th century was influenced by Bracton's "On the Laws and Customs of England", which led to the publication of the first extant Year Book in 1268. These Year Books, or law reports, served as a principal source for understanding the evolving legal doctrines, concepts, and methods during the formative years of common law.
Over time, common law evolved as judges made decisions in the absence of clear statutory guidance. This process of judicial lawmaking filled the gaps in legislation and contributed to the accumulation of judicial decisions that constitute common law. Judges have "'made law' for hundreds of years, shaping the evolution of legal principles. The reasons and rationales presented by judges in their decisions are often more influential in the long run than the outcomes of specific cases, as they provide guidance for future judgments.
In common law systems, stability and consistency are promoted by adhering to precedents. However, the evolution of common law also allows for the modification or deviation from precedents when they become outdated or when the current case significantly differs from previous ones. This flexibility enables the legal system to adapt to changing societal norms and interpretations.
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Judge-made law and Jeremy Bentham
Common law, also known as judge-made law, is the body of law derived from judicial decisions rather than statutes or constitutions. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. In a "case of first impression", judges are empowered to resolve the issue and establish new precedents.
Jeremy Bentham, an English philosopher, jurist, and social reformer, is known for coining the term "judge-made law" as a criticism of the legal profession and its pretenses. Bentham disagreed with William Blackstone's defence of judge-made law, legal fictions, and his theological formulation of the doctrine of mixed government. Bentham's critique of common law and the arbitrary character of "judge-made law" stemmed from his focus on the rules of evidence and his desire to reform judicial administration. He advocated for practical guidelines on the forms and admissibility of evidence, favouring "natural" over "technical" procedures to produce truth in court proceedings.
Bentham is regarded as the founder of modern utilitarianism, with his philosophy centred on the principle of maximizing the happiness of the greatest number. He became a leading theorist in Anglo-American philosophy of law, influencing the development of welfarism and contributing significantly to discussions of utilitarianism.
Bentham's critique of common law and "judge-made law" highlights the potential for arbitrariness and inconsistency in judicial decision-making. By empowering judges to establish precedents, common law can lead to the marginalization or disempowerment of certain groups, as past decisions shape future rulings until societal changes prompt a shift in interpretation. However, it is important to recognize that common law also allows for flexibility and adaptability in the legal system, empowering judges to resolve novel issues and establish new precedents.
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Common law jurisdictions
Common law, also known as judicial precedent, judge-made law, or case law, is the body of law primarily developed through judicial decisions rather than statutes. Legal systems that rely on common law as precedent are known as "common law jurisdictions".
Common law originated in England and was the primary source of law for several hundred years before Parliament acquired legislative powers to create statutory law. The early development of case law in the 13th century has been traced to Bracton's On the Laws and Customs of England, which led to the yearly compilations of court cases known as Year Books. The Year Books are known as the law reports of medieval England and are a principal source of knowledge for the developing legal doctrines, concepts, and methods of the period.
Today, several countries continue to rely on common law legal systems. including the United States, which originally based its common law rules on English common law. Every US state except Louisiana has a common law legal system. Louisiana's system is based on French civil code. Common law jurisdictions are contrasted with civil law jurisdictions, which centre around a comprehensive code of statutes that outline the procedures for handling claims and the punishment for offences.
In common law jurisdictions, judges fill the gaps in legislation by making decisions in accordance with their own conceptions of justice. These decisions become precedents that are followed in similar cases in the future. This accumulation of judicial decisions constitutes "the common law". In common-law countries, legislation is more limited in scope than in civil-law countries.
While common law may incorporate certain statutes, it is largely based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case. Common law is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions.
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Common law and marginalisation
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, which means "to stand by things decided". This means that judges presiding over a case determine which precedents to apply to that particular case.
The process of making, implementing, and interpreting the law inevitably creates margins by determining what is and is not included in a legal text. This can result in the marginalisation of certain groups or communities. For example, in the past, common law has led to the unfair marginalisation or disempowerment of certain groups, such as women, due to outdated or biased decisions that continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
In some cases, common law may contribute to social inequality and the marginalisation of certain legal categories. For instance, intestate laws, which are laws that determine the distribution of assets when an individual dies without a will, can disadvantage certain family structures that are more common among individuals of colour, those with less wealth, and those from lower socioeconomic backgrounds.
Additionally, common law can intersect with policy and society, influencing access to justice for marginalised communities. For example, the World Justice Project's book, "Marginalized Communities and Access to Justice", examines the role of courts in administering laws pertaining to the entitlements of marginalised communities, including indigenous communities, landless rural workers, and victims of violence.
Furthermore, common law can shape societal norms and values, which can impact the marginalisation of certain groups. For instance, in the context of marriage and family structures, common law has historically favoured traditional marriage and marital childbearing, contributing to a class divide in marital partnerships. This can further marginalise non-traditional household and family structures, which are more common among lower socioeconomic status groups.
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Frequently asked questions
Judge-made common law, also known as case law, is a body of law that is primarily developed through judicial decisions and opinions rather than statutes.
When judges are confronted with a dispute for which there is no clear answer in existing statutes, they must render decisions in accordance with their own conceptions of justice. These decisions are then used as precedents for future cases.
Judge-made common law operated as the primary source of law for several hundred years before Parliament acquired legislative powers to create statutory law. The early development of case law in the 13th century has been traced to Bracton's On the Laws and Customs of England.
Civil law, which originated in mainland Europe, is a comprehensive, codified set of legal statutes created by legislators. Unlike common law, civil law court decisions are not binding in other cases, even if the facts are similar.
