Cameron Miranda
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. Common law is deeply rooted in stare decisis, a Latin phrase that roughly means to stand by things decided. In practice, this means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later. Common law is used in several countries around the world, including the US, Canada, India, Australia, and the UK.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Basis | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
| Goal | To establish consistent outcomes by applying the same standards of interpretation. |
| Adaptability | Common law can address situations not originally predicted by lawmakers. |
| Flexibility | Common law can respond to changes in society. |
| Common law jurisdictions | England, US, Canada, India, Australia, Hong Kong, New Zealand, and the United Kingdom. |
| Common law marriage | A legal framework that may allow couples to be considered married without having formally registered their union. |
| Common law vs civil law | Civil law is a comprehensive, codified set of legal statutes created by legislators. |
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What You'll Learn
Common law is a body of unwritten laws
The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority.
Common law is also known as case law, and it draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is adaptable and flexible, as it can respond to changes in society. It is also capable of addressing situations not originally predicted by lawmakers. In a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
Common law originated in medieval England, and today, the US and UK operate under a dual system of both common and civil law. Common law is also practiced in Australia, Canada, Hong Kong, India, New Zealand, and several other countries.
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Common law is deeply rooted in stare decisis
Common 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. Common law is used in several countries around the world, including the US, Canada, India, Australia, the UK, and Hong Kong.
Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case. The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts. However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the previous cases.
At the centre of common law is a legal principle known as stare decisis, which is a Latin phrase that roughly means "to stand by things decided". In practice, stare decisis means that courts and judges need to follow earlier decisions and rulings, or caselaw, when dealing with similar cases later. For instance, if a court makes a particular decision based on a specific set of facts, then the court is required to follow that decision if they ever rule on the same or a closely related issue.
Stare decisis is deeply rooted in common law, as it is based on the idea of following 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. This flexibility allows common law to respond to changes in society and address situations not originally predicted by lawmakers.
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Common law is flexible and adaptable
Common law is a body of 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". In other words, common law relies on the principle that courts and judges should follow earlier rulings and decisions when dealing with similar cases in the future.
For example, in the United Kingdom, the ancient common-law offence of "outraging public decency" has been used to prosecute a new intrusive activity called "upskirting". This involved individuals taking non-consensual photos or videos of private parts for sexual gratification or to humiliate or distress others. In 2019, the UK Parliament passed the Voyeurism (Offences) Act, officially criminalizing upskirting and making it punishable by up to two years in prison. This demonstrates how common law can adapt to address new societal issues and inspire new legislation.
Additionally, common law provides flexibility in situations where there is no clear precedent or legislative guidance. In such "cases of first impression", judges are empowered to resolve the issue and establish new precedents. This flexibility allows the law to evolve and adapt to unique and unforeseen circumstances.
Furthermore, common law allows for some variation and deviation from precedents. While decisions made by higher courts are typically binding on lower courts, lower courts can modify or deviate from precedents if they are outdated or if the current case differs significantly from the precedent case. This flexibility enables the law to be applied more dynamically, ensuring that past rulings do not constrain present-day realities.
Overall, the flexibility and adaptability of common law lie in its ability to respond to societal changes, address unforeseen situations, establish new precedents, and allow for deviations from past rulings when necessary. These characteristics contribute to the dynamic and evolving nature of common law jurisdictions.
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Common law is influenced by judicial opinions
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". In other words, common law is influenced by previous judicial opinions and rulings, which are followed by courts when dealing with similar cases later on. This allows for consistency and stability in the legal system, as judges can refer to past decisions and rulings to guide their current judgments.
The reliance on judicial opinion is a strength of common law systems. Judicial opinions provide reasonably precise guidance on various issues, allowing parties, especially commercial parties, to predict the lawfulness of their proposed actions. This predictability enables parties to operate with greater freedom and efficiency, as they can structure their actions within the boundaries of the law with confidence. For example, commercial contracts may be more economically efficient and create greater wealth because the parties involved can anticipate the legality of their proposed arrangements.
Judicial opinions also contribute to the robustness of commercial systems in certain jurisdictions, such as the United Kingdom and the United States. In these jurisdictions, the ability to predict the applicable rules of law is often valued over the absolute correctness of those rules. This predictability allows parties to make informed decisions and approach the boundaries of the law with a degree of assurance.
Common law is influenced by the decisions and interpretations of judicial authorities and public juries. It is important to note that common law can evolve and adapt to changes in society. Judges have the power to overrule previous decisions and establish new precedents, particularly in cases where there is no clear legislative guidance. This evolution of common law is a key factor in ensuring that the law remains relevant and responsive to the needs of the society it serves.
In summary, common law is significantly influenced by judicial opinions and rulings. This reliance on stare decisis promotes consistency and stability in the legal system, enables predictability for parties, and allows for the evolution of the law to address societal changes. The influence of judicial opinions on common law is a key characteristic that distinguishes it from civil law systems, which primarily rely on written statutes and codes created by legislators.
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Common law differs across jurisdictions
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 deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided".
While common law is similar to civil law in that they both aim to establish consistent outcomes by applying the same standards of interpretation, elements of common law may differ between districts. This is because, in some instances, precedent depends on the case-by-case traditions of individual jurisdictions. For example, New York common law has a depth and predictability that is not yet available in any other jurisdiction in the United States. Similarly, American corporations often form under Delaware corporate law because of the deep body of law in Delaware on these issues.
Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. However, it differs across these jurisdictions. For example, the U.K. has long had a common-law offence of "outraging public decency", which has been used to prosecute a new intrusive activity called "upskirting". On the other hand, some jurisdictions have sufficiently developed bodies of law so that parties have no real motivation to choose the law of a foreign jurisdiction, such as England and Wales, and the state of California.
Common law originated in England during the Middle Ages and was spread to North America during the 17th and 18th centuries. Today, several countries continue to rely heavily on common law when resolving legal disputes.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases, and finally, apply the law to the facts.
Civil law is a comprehensive, codified set of legal statutes created by legislators. A civil system 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 more flexible and can respond to changes in society without requiring lawmakers to pass changes in statutes.
Common law originated in England during the Middle Ages and spread to North America during the colonial period. Today, common law is used in countries such as the United States, Canada, India, Australia, Hong Kong, New Zealand, and the United Kingdom.
