Keith Mack
Common law is a legal system that originated in England and has since spread to various other countries, including the United States and most Commonwealth countries. It is characterised by its reliance on judicial decisions, legal precedents, and the evolution of laws over time. However, common law is not the only legal system in use today. Many countries follow a civil law system, which originated in mainland Europe and centres around a comprehensive code of statutes created by legislators. Unlike common law, civil law systems do not rely on legal precedents to the same extent and instead focus on the interpretation of written laws. This key difference sets common law apart from civil law, and understanding this distinction is crucial when exploring the legal landscape of a particular country or region.
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What You'll Learn
Common law is not bound by precedent
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 institutionalized opinions and interpretations from judicial authorities and public juries. It is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. When a similar case has already been resolved, courts typically align their reasoning with the precedent set in that decision.
However, common law is not bound by precedent. While stare decisis is a crucial aspect of common law, it is not the only factor that determines judicial decisions. Common law is more malleable than statutory law. Firstly, common law courts are not absolutely bound by precedent. They can reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal, and social philosophy. This flexibility allows common law to respond to changes in society.
For example, in the evolution of the law of negligence, MacPherson overruled prior common law by rendering the formerly dominant factor, the privity formality arising from a contractual relationship, irrelevant. Instead, the most important factor became the nature of the thing sold and the foreseeable uses by downstream purchasers. This evolution of the law demonstrates how common law is not static but adapts to new circumstances and perspectives.
Additionally, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case significantly differs from the precedent case. While this occurs rarely, it highlights that common law is not rigidly tied to precedent. Judges have the power to overturn precedents and establish new ones, especially in "cases of first impression" with no clear legislative guidance.
In summary, while common law relies on stare decisis and legal precedents, it is not bound by them. Common law courts have the flexibility to reinterpret, revise, and adapt the law to new social, political, and legal contexts. This adaptability is a strength of common law systems and contributes to the robust commercial systems in countries like the United Kingdom and the United States.
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Common law is not dependent on a code or statute
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that relies on case law and legal precedent to guide decisions, rather than codes and statutes. Common law is not dependent on a code or statute; instead, it relies on detailed records of similar situations and statutes, as there is no official legal code that can be applied to a case at hand. This is in contrast to civil law systems, which centre around a comprehensive code of statutes that outline everything from procedures to punishments.
Common law is adaptable and flexible, allowing it to respond to changes in society. It does not require lawmakers to pass changes in statutes and codes, which can be a lengthy process. Instead, higher courts can overrule prior decisions and reinterpret and revise the law without legislative intervention. This is a significant strength of common law systems, contributing to robust commercial systems in countries such as the United Kingdom and the United States.
The common law system promotes stability and consistency as outcomes are based on previous case law rather than subjective viewpoints. Judges have been responsible for shaping common law for hundreds of years, and their decisions form precedents that guide future cases. This process allows for the gradual evolution of the law, reducing disruption.
While common law is not dependent on a code or statute, legislatures may choose to codify common law rules to give them permanence or modify their scope. For example, the California Legislature created a new section of the Labor Code to codify and expand on a holding from the California Supreme Court. This process allows for the influence of both common law and civil law elements in legal systems.
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Common law is not inflexible
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that relies on caselaw and legal precedent to guide decisions, rather than codes and statutes. Common law is used in several countries around the world, including the United States, the United Kingdom, and most of the Commonwealth countries.
For example, the law of negligence has evolved over time. The traditional common law rule in the 19th century was that a plaintiff could not recover for a defendant's negligent production or distribution of a harmful instrumentality unless they were parties to a contract. However, this rule has been gradually changed, and now the nature of the thing sold and the foreseeable uses by downstream purchasers are considered more important factors.
The flexibility of common law also allows higher courts to overrule prior decisions as "bad law" without waiting for lawmakers to make changes. This adaptability means that common law can address unforeseen situations and respond to new trends in political, legal, and social philosophy.
However, it is important to note that while common law is flexible, it also promotes stability and consistency in the legal system. This stability is achieved through the principle of stare decisis, where prior court decisions interpreting statutes are considered precedent and binding. As a result, everyone involved knows that the ultimate outcome will be based on previous caselaw rather than subjective viewpoints.
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Common law is not the only legal system used today
Common law is a legal system that originated in England in the early Middle Ages and is now found in the United States and most Commonwealth countries. It is a body of unwritten laws based on legal precedents established by the courts. Common law is flexible and adaptable, allowing higher courts to overrule prior decisions and interpret statutes without legislative intervention. It promotes stability and consistency by relying on previous case law rather than subjective viewpoints.
However, common law is not the only legal system used today. Many countries, particularly those in mainland Europe, follow a civil law system. Civil law differs from common law in that it relies primarily on codes and statutes created by legislators, rather than judicial decisions and case law. This comprehensive, codified set of legal statutes provides clear guidance on procedures, claims handling, and punishments for offences.
The United States, for example, operates under a dual system of both common and civil law. While common law is used in courts and provides a framework for concepts like common-law marriage, civil law also plays a significant role. This is evident in the inclusion of \"choice of law\" clauses in contracts, where parties may choose the law of a specific state or country to govern their agreement.
The existence of multiple legal systems highlights the dynamic nature of law and its ability to adapt to different contexts and societal needs. While common law offers flexibility and stability, civil law provides clear and consistent statutory guidance. The choice between these systems, or a blend of both, depends on the specific requirements and traditions of a country or jurisdiction.
In summary, while common law is a prominent legal system with a rich history and wide influence, it coexists with other systems such as civil law. The diversity of legal approaches ensures that societies can select or combine frameworks that best serve their unique circumstances, values, and legal objectives.
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Common law is not the same as civil law
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system that relies on caselaw and legal precedent to guide decisions, rather than relying on a set of codes and statutes. Common law is often described as flexible, as it can respond to changes in society and adapt to new trends in political, legal and social philosophy.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It centres around a comprehensive code of statutes that outline procedures for handling claims and punishments for offences. Civil law is a system that originated in mainland Europe and is now widespread in continental Europe and elsewhere.
The main difference between the two systems is that common law is based on judicial decisions and precedents, while civil law is based on a set of written laws created by legislators. In common law, the decisions of higher courts are binding on lower courts, whereas in civil law, a judge's decision is not binding in later cases involving different parties.
Another difference is that common law promotes stability and consistency because everyone knows that the outcome will be based on previous caselaw, while civil law can be more unpredictable as it is based on the interpretation of written laws, which may be subject to change over time.
Additionally, common law systems can address situations not originally predicted by lawmakers, as they are not bound by a specific set of codes or statutes. Common law is also more malleable than civil law, as common law courts can reinterpret and revise the law without legislative intervention, whereas civil law requires lawmakers to pass changes in statutes.
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Frequently asked questions
Civil law is a comprehensive, codified set of legal statutes created by legislators. Civil law systems rely primarily on codes and statutes, unlike common law, which is based on legal precedents established by the courts.
Common law does not rely on subjective, personal viewpoints. It is based on legal precedents, and the judge presiding over a case determines which precedents apply.
Common law is flexible and can be changed. It evolves through a series of gradual steps, adapting to new trends in political, legal, and social philosophy.
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