Kara Sears
Common law is a body of unwritten laws based on past judicial opinions and legal precedents. It is a flexible system that can respond to changes in society and allows for some freedom of interpretation. Common law originated in medieval England and is still used in the US, Canada, India, Australia, and elsewhere. It is often used interchangeably with the term 'case law'. Common law is distinct from civil law, which is based on written laws and legislation designed to cover every eventuality. Examples of common law include common-law marriage, which grants similar rights to unmarried couples as those who are married, and the law of negligence, which determines responsibility in disputes involving injury to persons or property.
| Characteristics | Values |
|---|---|
| Basis | Judicial decisions and opinions |
| Sources | Past court rulings and decisions |
| Nature | Unwritten, Uncodified |
| Focus | Precedent, stare decisis |
| Flexibility | Can respond to changes in society |
| Adaptability | Applicable to new situations |
| Interpretation | Allows freedom for interpretation |
| Consistency | Establishes consistent outcomes |
| Jurisdiction | Binding in a particular jurisdiction |
| Marriage | Recognises common-law marriages |
| Negligence | Includes law of negligence |
| Contracts | Includes contract law |
| Tort | Includes law of torts |
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What You'll Learn
Common law is a body of unwritten laws based on precedents
Common law is often referred to as case law because it relies on detailed records of previous rulings on similar cases, or precedents, rather than an official legal code. When judges use common law, they search for past decisions from similar cases, and these past decisions are known as precedents. Trial judges follow these precedents to ensure the law is constant. Judges create common law when they decide cases, and these decisions are published online or found in books in law libraries.
Common law originated in medieval England, and today the US, UK, Canada, India, and Australia rely heavily on it to resolve legal disputes. Common law is particularly useful for commercial contracts, as it allows parties to predict whether a proposed course of action is likely to be lawful, creating greater wealth. For example, commercial contracts often include a "choice of law clause", and American contracts relating to corporate law issues often include a Delaware choice of law clause due to the deep body of law in Delaware on these issues.
Common law can be overruled, but this is rare. Statutes can supersede common law, codify it, create new causes of action, or legislatively overrule it. Common law has also furnished the basis for new legislation, such as the UK's offence of "outraging public decency", which has been used to prosecute upskirting. Other examples of common law in action include the concept of common-law marriage, which grants similar rights to couples who are not officially married, and the law of contracts, which judges define and use to resolve disputes.
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Common law marriage
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. Common-law marriage is not common in the US, and a number of states have abolished it, including Alabama. However, it is still recognised in seven states and the District of Columbia, and nine other states recognise it with some restrictions.
In states that allow common-law marriage, couples may have the same rights as a couple who went through a formal marriage process. Generally, a married couple is considered common-law married when they meet certain requirements: they live together for a period of time (cohabitation), they are not already married to other people, they intend to be married, and they hold themselves out to friends, family, and the public as being married. There is no statutory requirement for the length of time a couple needs to live together, but the longer they live together, the stronger their case is for common-law marriage.
In family law, common-law marriage is a legal marriage and an informal marriage. The original concept of a "common-law" marriage is one considered valid by both partners but not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. Community recognition of a marriage was largely what qualified it as a marriage in medieval Europe, and civil and religious officials took no part in marriage ceremonies and did not keep registries.
In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may be defined as "unmarried spouses" and treated the same as married spouses in certain contexts such as taxes and financial claims. In Scotland, common-law marriage does not exist, although there was a type of irregular marriage called 'marriage by cohabitation with habit and repute' which could apply to couples in special circumstances until 2006.
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Common law is flexible and adaptable
Common law is a body of unwritten laws based on legal precedents. It is flexible and adaptable in several ways.
Firstly, common law is adaptable in that it can be interpreted and applied to situations not previously contemplated by the legislature. This is because common law is derived from judicial decisions and interpretations, rather than from statutes. This adaptability is particularly important in the context of evolving technology, as it allows the law to be applied to new technologies and situations that may not have been foreseen when the law was created.
Secondly, common law is flexible in that it can respond to changes in society. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes, which can be a lengthy or impossible process. Instead, higher courts in common law systems can overrule prior decisions as "bad law" without waiting for lawmakers to act. This flexibility allows common law to evolve and adapt to changing societal norms and values.
Additionally, common law is adaptable at the jurisdictional level. While common law principles are generally consistent, they can be applied and interpreted differently in different jurisdictions. This allows for a degree of flexibility and adaptability to local customs, traditions, and circumstances.
The flexibility and adaptability of common law also extend to the creation of new precedents. Judges create common law when they decide cases, and these decisions can establish new precedents that turn into new laws. This process allows common law to adapt and evolve over time to address new issues and situations.
Finally, common law is flexible in that it allows for a degree of interpretation and prediction. While common law relies on precedents, it also allows for some freedom of interpretation. This flexibility enables parties, especially commercial parties, to predict whether a proposed course of action is likely to be lawful or unlawful, even if it is close to the boundaries of the law. This predictability provides assurance and consistency, contributing to the robust commercial systems in countries like the United States and the United Kingdom.
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Common law is adversarial, not investigatory
Common law is a body of unwritten laws based on legal precedents. It draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common law is adversarial, not investigatory, with the judge moderating between two opposing parties. In other words, common law is based on past judicial opinions, whereas civil law is based on current statutes (written laws).
Common law places an emphasis on precedent while allowing some freedom for interpretation. The value of a common-law system is that the law can be adapted to situations that were not contemplated at the time by the legislature. US common law originates from medieval England, and today both the US and the UK operate under a dual system of both common and civil law. Common law is also frequently referred to as case law because it relies on detailed records of similar situations and statutes due to a lack of an official legal code that can be applied to a given case.
At the centre of common law is a legal principle known as stare decisis, 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 when dealing with similar cases later. For example, 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.
Common law has also been described as flexible, as it can respond to changes in society. Unlike civil law systems, common law doesn't require lawmakers to pass changes in statutes and codes, which can take a long time or never happen. When it comes to common law, higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers to act.
Judges create common law when they decide cases. The US Supreme Court and state supreme courts create most of the common law. Federal and state appellate courts also create common law if an issue has yet to be decided by their supreme court.
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Common law is based on past opinions, not current statutes
Common law is a body of unwritten laws based on past judicial opinions and interpretations from legal precedents. It is distinct from civil law, which is based on current, written statutes. Common law is flexible and can adapt to changes in society without requiring lawmakers to pass changes in statutes and codes. This flexibility allows the law to be interpreted and adapted to situations not previously contemplated by the legislature.
Common law is based on stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law requires courts and judges to follow past decisions and rulings, or precedents, when dealing with similar cases in the future. When judges use common law, they search for precedents in past decisions from similar cases. These precedents guide judges in applying the law to the facts of a case and help ensure consistency in the law.
Common law is created by judges when they decide cases and write opinions explaining their decisions. The US Supreme Court and state supreme courts create most common law, while federal and state appellate courts create common law when the supreme court has not yet ruled on an issue. Common law is also influenced by institutionalized opinions and interpretations from judicial authorities and public juries.
Examples of common law in practice include common-law marriage, which grants similar rights to unmarried couples who meet certain conditions, and the law of negligence, which determines responsibility for damages in car accidents. Another example is contract law, where judges define the creation of contracts and the consequences of broken promises.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents. It is derived from judicial decisions and interpretations rather than statutes.
Common law examples include negligence, contract law, and common-law marriage. Negligence law determines responsibility in cases of injury or property damage, such as car accidents. Contract law governs the creation and enforcement of contracts. Common-law marriage grants similar rights to unmarried couples meeting certain conditions as those who are officially married.
Common law is more flexible than civil law as it relies on judicial interpretation and precedent rather than written codes or statutes. Common law adapts to societal changes without requiring lawmakers to pass new statutes, while civil law is stricter in its application.
