Keith Mack
The common law system is a legal framework that originated in England during the Middle Ages and spread to its colonies, including the United States, Canada, India, Australia, and New Zealand. It is a body of unwritten laws based on legal precedents and court decisions rather than codes or statutes. The principle of stare decisis, which means to stand by things decided, is central to common law, where courts follow previous rulings when dealing with similar cases. Common law provides stability and consistency and allows for flexibility in adapting to societal changes. It empowers judges to interpret and revise laws without legislative intervention. Common law systems coexist with civil law systems, which rely on comprehensive codes and statutes.
| Characteristics | Values |
|---|---|
| Definition | "A body of law based on court decisions rather than codes or statutes." |
| Origin | The common law system started in England during the Middle Ages. |
| Current use | Many former colonies still use the common law system. Approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law. Countries that use common law include the US, Canada, India, Australia, the UK, and New Zealand. |
| Stare decisis | Latin for "to stand by things decided." The principle that courts and judges need to follow earlier decisions and rulings, or case law. |
| Flexibility | Common law is flexible and can respond to changes in society. Higher courts can overrule prior decisions without waiting for lawmakers to do so. |
| Stability and consistency | Common law promotes stability and consistency because everyone involved knows that the outcome will be based on previous case law rather than subjective, personal viewpoints. |
| Predictability | Common law provides reasonably precise guidance on almost every issue, allowing parties to predict whether a proposed course of action is likely to be lawful or unlawful. |
| Dual system | Some countries, like the US, operate under a dual system of both common and civil law. |
| Codification | At the state level, legislatures may codify common law rules from the courts of their state to give the rule the permanence afforded by a statute, to modify it, or to replace it entirely with legislation. |
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What You'll Learn
Common law origins
The common law legal system, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This principle dictates that courts follow precedents established by previous decisions, ensuring stability and consistency in the legal system.
The origins of the common law system can be traced back to medieval England during the Middle Ages, specifically to the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually replacing local folk courts and manorial courts. Over time, England spread this legal system across the British Isles, including Wales and Ireland, and later to its overseas colonies, which was continued by the British Empire.
American courts initially based their common law rules on English common law until the American legal system became mature enough to create its own common law rules. The spread of English common law to North America during the 17th and 18th centuries, through colonisation, further solidified the foundation of what would become the US common-law system. Thus, the common law system in the US evolved from English legal traditions and was influenced by the country's subsequent legal developments.
Today, the common law system is prevalent in various parts of the world, including the United States, the United Kingdom, Canada, India, Australia, and some former colonies. Many of these jurisdictions continue to rely heavily on common law when resolving legal disputes, shaping the legal landscape and influencing the decision-making process in their respective countries.
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Common law vs civil law
Common law and civil law are the two main legal systems used today throughout the world. Common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system. They are deeply rooted in stare decisis, a Latin term that roughly means "to stand by things decided". This means that courts follow precedents established by previous decisions.
Common law is more flexible than civil law as it can respond to changes in society. It does not require lawmakers to pass changes in statutes and codes, and higher courts can overrule prior decisions as "bad law". Common law originated in England during the Middle Ages and spread to the British Isles and colonies. Today, approximately one-third of the world's population lives in common law jurisdictions, including the US, Canada, India, and Australia.
Civil law, on the other hand, is primarily rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. It is generally more prescriptive than common law, relying on legal codes that function as the primary source of law. Civil law systems have clear rules for how judges need to rule for specific disputes. Unlike common law, civil law court decisions are not binding in other cases, even if the facts are similar.
Louisiana is the only US state whose private civil law is based heavily on French and Spanish codes, rather than English common law. In civil law, codes should ideally go beyond the compilation of discrete statutes and introduce major reforms or start anew. This means that civil law codes are similar to the Restatements of the Law and the Model Penal Code in the US.
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Common law in the US
Common law is a legal system that originated in England during the Middle Ages and is based on judicial decisions and legal precedent rather than codes or statutes. It is named so because it was common to all the king's courts across England. The principle of stare decisis, which means "to stand by things decided", is central to common law, as it requires courts to follow precedents established by previous decisions. Common law is flexible and can adapt to societal changes without legislative intervention. It promotes stability and consistency in the legal system.
Common law was introduced to the US through English common law, and it continues to be a significant aspect of the US legal system. The US Supreme Court and state supreme courts create most of the common law in the country. Federal and state appellate courts also create common law when an issue has not been decided by the supreme courts. Trial court judges are required to follow the common law set by higher courts within their geographic region.
Common law is particularly relevant in commercial systems in the US, as it provides guidance and predictability for commercial parties. It allows them to assess the legality of their actions and create economically efficient contracts. Common law is also applied in areas such as contract law, negligence, and the law of torts.
Although common law is prevalent in the US, it coexists with statutory law. Statutes may codify, modify, or supersede common law. For example, the California Legislature created a new section in the Labor Code in response to the Dynamex Operations West, Inc. v. Superior Court decision, which involved determining the employment status of California workers. This statute codified and expanded on the court's holding, demonstrating the interplay between common law and statutory law.
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Common law in the UK
Common law is a legal system that originated in England during the Middle Ages, specifically during the reign of Henry II (1154-89). It is a "body of law" based on court decisions and judicial precedent, also known as case law, rather than codes or statutes. This means that judges in common law systems rely on previous rulings and precedents to guide their decisions, and courts follow precedents established by previous decisions. The principle of stare decisis, or "to stand by things decided", is central to common law.
English common law, which comprises mainly criminal law and civil law, is the legal system of England and Wales and forms the basis of the legal system in the United Kingdom. Scotland and Northern Ireland, which are part of the UK, have separate legal systems outside of English law. English criminal law derives its main principles from common law, with the main elements of a crime being the actus reus (criminal act) and mens rea (criminal intent).
Common law is deeply rooted in the concept of stare decisis, where courts follow precedents established by previous decisions. This provides stability and consistency to the legal system, as it allows parties to predict the likely outcome of a case based on previous rulings. However, common law is also flexible, as it can respond to changes in society. Higher courts can overrule previous decisions as "bad law" without legislative intervention, and judges can establish new precedents in cases of first impression with no previous precedent.
The UK's legal system is based on parliamentary sovereignty and the rule of law, with sources of law including statute, common law, and EU law (although the UK is not bound to future changes in EU law after Brexit). Important elements of the UK's unwritten constitution are found in Acts, or laws passed by Parliament. Common law precedents and Acts of Parliament are therefore both important components of the UK's legal system.
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Common law's flexibility
Common law is a legal system that is deeply rooted in stare decisis, a Latin term that roughly translates to "to stand by things decided". It is a system of law based on judicial decisions and precedent rather than codes or statutes. Common law originated in England during the Middle Ages and spread throughout the British Isles and later to various colonies, including the United States. Today, many countries, including the US, Canada, India, and Australia, continue to rely heavily on common law to resolve legal disputes.
One of the key advantages of common law is its flexibility. Unlike civil law systems, common law is not solely dependent on written codes or legislative enactments. It is more malleable and adaptable to societal changes. Common law courts are not absolutely bound by precedent and have the power to reinterpret and revise the law without legislative intervention. This flexibility allows common law to keep up with new trends in political, legal, and social philosophy. For example, in the case of R (Soma Oil and Gas Ltd) v Director of the SFO [2016] EWHC 2471, the judge chose to look beyond a strictly legal approach and consider the economic consequences of a judgment that prioritized legal principle over pragmatism.
The flexibility of common law also lies in its incremental nature. Common law evolves through a series of gradual steps, allowing the law to change substantially over time without causing disruptive effects. This gradual evolution ensures stability and consistency in the legal system. It provides predictability, enabling individuals and commercial entities to anticipate the legality of their actions and make informed decisions.
Additionally, common law's flexibility is evident in its ability to respond to changes in society. In common law systems, higher courts can overrule prior decisions as "bad law" without waiting for legislative changes. This adaptability ensures that the law remains relevant and suitable for the society it serves.
The flexibility of common law encourages good judgment and promotes stability, consistency, and fairness in legal systems. It empowers judges to consider the unique circumstances of each case and make decisions that are just and equitable. However, it is important to note that while flexibility is a strength of common law, it also presents challenges in ensuring uniform interpretation and application of the law.
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Frequently asked questions
The common law legal system, 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. Common law legal systems can trace their roots back to medieval England, and today approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.
Common law relies on caselaw and legal precedent to guide decisions, unlike civil law systems, which rely primarily on codes and statutes. Common law is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.
The benefits of the common law legal system include stability and consistency, as everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints. Common law is also flexible, as it can respond to changes in society without lawmakers needing to pass changes in statutes and codes.
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