Cameron Miranda
Common law is a body of law that is based on custom and general principles. It is derived from judicial decisions and precedent rather than from statutes or written laws. Common law is deeply rooted in stare decisis, which means to stand by things decided, where courts follow precedents established by previous decisions. It is also known as judge-made law or case law. Many former British colonies retain the common law system today, and 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.
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Common law vs civil law
Common law is a body of law that is based on custom and general principles and is primarily developed through judicial decisions and social customs rather than statutes. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. Common law originated in England and is the basis of US federal law and of state law in all states except Louisiana. Many former colonies retain the common law system today, including the United States, and 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.
Civil law, on the other hand, is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with notable examples including France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. It is the world's most common legal system, practised in about 150 countries. Unlike common law, civil law systems rely on legal codes that function as the primary source of law. Civil law judges tend to give less weight to judicial precedent and more weight to written decisions.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This involves ascertaining the facts, locating relevant statutes and cases, extracting principles, analogies, and statements by various courts, and determining how the next court is likely to rule based on the facts of the present case. Recent decisions and those of higher courts carry more weight.
In a civil law jurisdiction, a separate administrative law often governs PPP arrangements, and unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts. Civil law codes are more similar to the Restatements of the Law and the Uniform Commercial Code in the United States. Contracts in a civil law system tend to be shorter since the relationship between the parties is governed by operation of law rather than by setting out all the terms in the contract itself.
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Common law and statutes
Common law is a body of law that is based on custom and general principles. It is primarily developed through judicial decisions and precedent rather than statutes. Common law is deeply rooted in stare decisis, which means "to stand by things decided". Here, the presiding judge determines which precedents to apply when deciding on each new case. When a similar case has already been resolved, courts typically align their reasoning with the precedent set in that decision.
Common law is also known as judicial precedent, judge-made law, or case law. It is distinct from civil law and statutory law, which are based on written legislation and codes. Common law is often associated with the English legal system and its former colonies, which is why it forms the basis of US federal law and the law of all US states except Louisiana. Many former colonies continue to retain the common law system today, and 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.
Statutes, on the other hand, refer to written laws that are enacted by a legislative body. These can include the constitution, enactments made by or under the authority of parliament, and any orders, rules, and regulations made by any person or authority under the power conferred by the constitution. Statutes are often used to codify, modify, or replace common law rules. For example, in the case of Dynamex Operations West, Inc. v. Superior Court, the California Supreme Court articulated a test for determining the employment status of workers, and the California Legislature responded by creating a new section in the Labor Code that codified and expanded on the court's holding.
In summary, common law and statutes are both important components of legal systems, with common law focusing on judicial precedent and customary principles, while statutes involve written laws enacted by legislative bodies.
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Common law in the US
Common law is a body of law that is based on custom and general principles and is embodied in case law. It is also known as judicial precedent, judge-made law, or case law. Common law is primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
In the US, common law is a group of legal practices and traditions originating in judges' decisions in earlier cases and in social customs and having the same force in most of the country as if passed into law by a legislative body. It 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.
Many former colonies of the British Empire retain the common law system today, and 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.
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Common law in the UK
Common law is a term with historical origins in the legal system of England. It is a body of law based on the English legal system, distinct from a civil-law system. 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, London. It did not originally consist of substantive rights but rather procedural remedies.
English criminal law derives its main principles from common law. The main elements of a crime are the actus reus (doing something which is criminally prohibited) and a mens rea (having the criminal state of mind). Common law is primarily developed through judicial decisions rather than statutes. 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 been resolved, courts typically align their reasoning with the precedent set in that decision.
In the UK, common law forms the basis of the legal systems in England and Wales, and Northern Ireland. Scotland has a separate legal system. Many former colonies of the British Empire retain the common law system today. These common law systems are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system.
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. Then, one must extract the principles, analogies, and statements by various courts to determine how the next court is likely to rule on the facts of the present case. Finally, one integrates all the lines drawn and reasons given and determines "what the law is".
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Common law in Ghana
Ghana is a common law jurisdiction, meaning that case law and judicial precedent play a significant role in the country's legal system. Ghana's modern-day constitution embraces English common law, entrenching it in its provisions. The doctrine of judicial precedence, based on the principle of stare decisis, is applied in Ghana, as it is in England and other pure common law countries.
Common law, also known as judicial precedent, judge-made law, or case law, is a body of law primarily developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which translates to "to stand by things decided". Here, 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 previous decision. However, in a case of first impression, where there is no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent.
In the context of Ghana's legal history, even present-day British decisions on issues unaffected by statute may be cited, at least as persuasive authority. Ghana's common law is defined to include the rules generally known as the common law, the doctrines of equity, and the rules of customary law, including those determined by the Superior Court of Judicature. The latter refers to the rules of law applicable by custom to particular communities in Ghana.
The court system in Ghana consists of the Supreme Court, the Court of Appeal, the High Court, the Circuit Court, and the District Court, in descending hierarchical order. The Supreme Court is the highest court with original jurisdiction in matters relating to enforcing and interpreting the Constitution and with supervisory jurisdiction over all other courts.
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Frequently asked questions
Common law is a body of law based on the English legal system, which is distinct from a civil-law system. It is primarily developed through judicial decisions and social customs rather than statutes.
Common law is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that judges follow precedents established by previous similar judicial decisions.
Common law is based on judicial decisions and social customs, whereas civil law is based on a written set of rules and laws. Common law gives more power to judges to interpret the law and consider previous cases, while civil law provides a clearer framework of laws that judges must follow.
Common law originated in England and was spread to Wales, Ireland, and later to various colonies of the British Empire. Today, many former colonies retain the common law system, and approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law.
