Cameron Miranda
Common law, also known as case law, is a body of law unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin term that roughly means to stand by things decided. In practice, this means that judges in common law systems rely on previous rulings, or caselaw, to guide their decisions. This is in contrast to civil law systems, which rely primarily on codes and statutes. Common law originated in England in the early Middle Ages and has since spread to various countries, including the United States, Canada, Australia, and India. It is characterized by its adaptability, flexibility, and reliance on precedent to develop the law incrementally and by analogy with established authorities.
| Characteristics | Values |
|---|---|
| Definition | A "body of law" based on court decisions rather than codes or statutes. |
| Origin | The English common law originated in the early Middle Ages in the King's Court (Curia Regis). |
| Basis | Precedent, the development of the law incrementally and by analogy with established authorities. |
| Latin Term | Stare decisis, meaning "to stand by things decided". |
| Judicial Decisions | Decisions made by higher courts are typically binding on lower courts. |
| Adaptability | Addresses situations not originally predicted by lawmakers. |
| Flexibility | Can respond to changes in society. |
| Consistency | Promotes stability and consistency in the legal system. |
| Efficiency | Court proceedings can be shorter, saving time and money. |
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What You'll Learn
Common law vs civil law
Common law and civil law are the two main legal systems used today throughout the world. Common law is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". It is a body of law based on court decisions and judicial precedent rather than codes or statutes. In other words, common law is based on previous rulings and decisions made by judges in similar cases, and it is often described as flexible and adaptable.
Civil law, on the other hand, is primarily based on codes and statutes. It is a comprehensive system of laws that clearly outlines the procedures for handling claims and the punishments for offences. Civil law is more prescriptive than common law, and it does not give as much weight to judicial precedent. For example, the Napoleonic Code, a prominent civil law code, expressly forbade French judges from pronouncing general principles of law. Civil law is the most common legal system in the world, with around 150 countries practising it.
Common law is often associated with former British colonies or protectorates, such as the United States. The adoption of common law in the newly independent United States was controversial due to widespread distrust and hostility towards anything British. However, the Federalists believed that common law was the birthright of independence as it protected the natural rights to "life, liberty, and the pursuit of happiness". In contrast, civil law is rooted in the Roman Empire and was later influenced by Napoleonic, Germanic, canonical, and feudal legal traditions. Louisiana is the only US state whose private civil law is based heavily on French and Spanish codes rather than English common law.
There are several advantages to common law. Firstly, it promotes stability and consistency because everyone involved knows that the outcome will be based on previous case law rather than subjective viewpoints. Secondly, common law is efficient as judges only need to follow precedent, which can save time and money. Thirdly, common law is adaptable as it can address situations not originally predicted by lawmakers and respond to changes in society.
Civil law also has its advantages. The comprehensive nature of civil law provides clear rules for judges to follow in specific disputes. Additionally, in civil law jurisdictions, contracts are enforced by administrative courts unless the contract specifies that the parties have agreed to arbitration.
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The stare decisis principle
The principle of stare decisis is based on the idea that the law should be consistent, predictable, and unbiased. It adds integrity to the judicial process by ensuring that similar cases are treated similarly, and it provides a level of certainty for the public, who can refer to previous rulings to understand how the law might be applied in their own situations.
There are two types of stare decisis: vertical and horizontal. Vertical stare decisis refers to the hierarchy of courts, where higher courts, such as a jurisdiction's supreme court, have binding authority over lower courts. In other words, lower courts must adhere to the rulings of higher courts within the same jurisdiction. This is a deeply entrenched principle in legal systems that follow the common law approach, such as the United States.
Horizontal stare decisis, on the other hand, refers to a court adhering to its own previous rulings. For example, if a federal court of appeals were to follow the ruling of a previous case heard by the same court, that would be an instance of horizontal stare decisis. This type of stare decisis is considered to have less "control" compared to vertical stare decisis, as judges can choose to deviate from their court's previous rulings if they believe those rulings would lead to unjust outcomes in the current case.
While stare decisis is a foundational concept, it is not without its limitations and critics. Some argue that stare decisis can impede the advancement of the law by treating similar cases similarly, even as societal beliefs and conditions evolve. In such cases, judges may choose to overturn previous rulings or establish new precedent, particularly when dealing with issues that couldn't have been predicted or addressed by lawmakers.
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Common law's flexibility
Common law is a body of law 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 is based on the idea that courts and judges should follow previous rulings when dealing with similar cases. This principle of stare decisis is a key factor in the flexibility of common law.
One of the key advantages of common law is its adaptability to unforeseen situations. When lawmakers create statutes and rules, they cannot predict all the possible scenarios in which courts may need to apply the laws. Common law allows courts to address situations that were not originally contemplated by lawmakers. This flexibility is further enhanced by the ability of higher courts to overrule prior decisions as "bad law" without needing to wait for lawmakers to make changes to the statutes.
For example, in the United States, the Supreme Court has the power to create and apply federal common law in the absence of any controlling federal statute. This allows the court to address unique situations and protect federal interests. Similarly, in the United Kingdom, common law has evolved over the centuries, with judges playing a significant role in its development, especially after the Norman Conquest of 1066.
Common law also provides flexibility in situations where there is no precedent or clear legislative guidance. In such cases of first impression, judges are empowered to resolve the issue and establish new precedents. This allows the law to adapt and respond to changes in society. Additionally, lower courts have some flexibility to modify or deviate from precedents if they are outdated or if the current case substantially differs from the precedent case.
In conclusion, the common law approach offers significant flexibility due to its reliance on stare decisis, its ability to address unforeseen situations, the power of higher courts to overrule previous decisions, and the discretion given to judges to establish new precedents in novel cases. This adaptability ensures that the law can keep pace with societal changes and address unique circumstances.
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Common law in the US
Common law is a body of law based on court decisions and judicial precedent, also known as judge-made law or case law. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, common law requires courts and judges to follow past rulings and precedents when dealing with similar cases in the future.
In the US, common law was adopted after the American Revolution, despite some widespread distrust and hostility towards anything British at the time. The Federalists believed that the common law was the birthright of Independence, as the natural rights to "life, liberty, and the pursuit of happiness" were protected by common law.
In the US legal system, trial court judges decide cases by applying the law to the facts. They may use laws passed by a legislative body, common law, or a combination of both. When judges use common law, they search for past decisions from similar cases, which are known as precedents. Trial judges follow these precedents to ensure consistency in the law. Decisions of higher courts become binding precedents for lower courts within their geographic region. All courts must follow any binding precedent decisions made by the US Supreme Court.
Examples of legal areas where judges have created common law include negligence and contracts. For instance, determining which driver is responsible for damages caused by a car accident is usually resolved using the common law principles of negligence. Judges also define how contracts are created and what happens when the promises made in a contract are not kept.
At the state level, legislatures may subsequently codify common law rules from the courts of their state, either to give the rule more permanence, to modify it, or to replace it entirely with legislation.
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Common law in the UK
The common law approach is a "'body of law'" based on court decisions rather than codes or statutes. It is deeply rooted in the principle of stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law is based on the idea that judges need to follow earlier decisions and rulings, or case law, when dealing with similar cases later. This is in contrast to civil law systems, which rely primarily on codes and statutes and do not consider previous court decisions binding.
The key strength of common law lies in its adaptability and flexibility. It has the capacity to evolve and respond to societal changes and emerging legal issues. Judges play a crucial role in shaping UK common law through their interpretations, ensuring that the law remains relevant and responsive to the needs of a changing society. They do this by interpreting the law based on the specific circumstances of each case, departing from precedent when necessary.
However, there is a limit to the extent to which common law judges can reform an out-of-date law, particularly if it derives from a statute. In such cases, only Parliament can change the law. The interplay between tradition, precedent, and judicial interpretation continues to shape the development of common law in the UK, making it a dynamic and influential force within the legal system.
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Frequently asked questions
The common law approach, also known as case law, is a body of law based on judicial decisions and detailed records of similar situations, rather than an official legal code or statutes.
The common law approach, also known as the English common law, originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London.
The common law approach is based on the principle of stare decisis, which means "to stand by things decided". This means that judges in common law systems rely on case law and legal precedent when making decisions.
The common law approach promotes stability and consistency in the legal system as it provides a clear framework for judges to follow when making decisions. It is also flexible and adaptable to changes in society as it allows higher courts to overrule prior decisions without waiting for lawmakers to do so.
The common law approach is used in the United States, the United Kingdom, Canada, Australia, New Zealand, India, and Hong Kong. It is also used in most member states of the Commonwealth.
