Keith Mack
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 phrase that means to stand by things decided. Common law originated in England during the Middle Ages and has been administered by the common-law courts of England since then. It has evolved and spread to several other countries, including the United States, Canada, India, and Australia, which continue to rely heavily on common law when resolving legal disputes. The development of common law can be traced back to the early Middle Ages in the King's Court, where it was initially based on procedural remedies rather than substantive rights. Over time, the working out of these remedies has produced the modern system, where rights are prioritized over procedure. The English common law was largely created after the Norman Conquest of 1066, and it has influenced the legal systems of former British colonies and members of the Commonwealth.
| Characteristics | Values |
|---|---|
| Basis | Court decisions, not codes or statutes |
| Type of law | Customary law |
| Sources | Judicial decisions, precedents, opinions and interpretations from judicial authorities and public juries |
| Administered by | Common-law courts of England since the Middle Ages |
| Current use | Used in the US, Canada, India, Australia, Hong Kong, New Zealand and the UK |
| Other names | Judicial precedent, judge-made law, case law |
| Governing principle | Stare decisis (Latin for "to stand by things decided") |
| Exceptions | Judges can resolve issues and establish new precedents in "cases of first impression" |
| Comparison with civil law | More flexibility for judges, less standardized |
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What You'll Learn
Common law's roots in England
The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government.
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. It did not originally consist of substantive rights but rather of procedural remedies. The working out of these remedies has, over time, produced the modern system in which rights are seen as primary over procedure.
The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition. The main sources for the history of common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, the official court records for the Courts of Common Pleas and King's Bench, were written in Latin and are currently deposited in the UK National Archives.
Until the late 19th century, English common law continued to be developed primarily by judges rather than legislators. Common law, also known as judicial precedent, judge-made law, or case law, is the body of law 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.
Common law 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. However, in a ""case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
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Common law in the modern world
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 the principle of stare decisis, which means "to stand by things decided". This means that judges are required to follow the rulings and decisions made in previous similar cases. Common law originated in England during the Middle Ages in the King's Court, and has since spread to many other countries, including the United States, Canada, India, and Australia.
In the modern world, common law continues to be a prominent legal system in many countries. The United States, for example, has a common-law system that evolved from English common law. American corporations often include a Delaware choice-of-law clause in their contracts, as Delaware has a deep body of law on corporate issues. Similarly, New York common law is often chosen in contracts due to its depth and predictability. Other countries that practice common law include Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
The advantage of common law is that it provides a degree of predictability and consistency in the legal system. By relying on past decisions and precedents, judges can ensure that similar cases are treated similarly, promoting stability and fairness. This is particularly beneficial in commercial disputes, where parties seek predictability and simplicity in their contractual relations. London, for instance, is considered the pre-eminent centre for litigation of admiralty cases due to the depth of decided cases.
However, in the modern world, common law has also faced some challenges. One issue is the potential for inconsistency between different jurisdictions, as elements of common law may differ between districts. Additionally, in an increasingly globalized world, there may be conflicts between common law and other legal systems, such as civil law, which is prevalent in continental Europe and is based on a comprehensive code of statutes.
Despite these challenges, common law remains an important legal system in the modern world. It allows for the incorporation of institutionalized opinions and interpretations from judicial authorities and public juries, and can adapt to evolving social values and understandings. Common law also serves as a foundation for legislative decisions and the creation of new legislation.
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Common law in the US
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 phrase that means "to stand by things decided". In other words, common law relies on previous rulings and judicial decisions to guide future cases with similar facts.
The US common-law system has its roots in English common law, which was introduced during the colonial period in the 17th and 18th centuries. The English common law, which originated in the early Middle Ages, was largely created after the Norman Conquest of 1066. Over time, the modern system evolved, prioritising rights over procedure. The US federal courts relied on private publishers for legal information until after the Civil War, only transitioning to government publishing in 1874.
Common law has practical applications in various areas of US law, such as contract law and the law of torts. For example, parties in the US often choose the law of New York for their contracts due to its depth and predictability as the country's historical commercial centre. Similarly, American corporations frequently include a Delaware choice of law clause in merger and acquisition contracts due to Delaware's substantial body of corporate law.
While statutes can supersede common law, they may also incorporate and codify existing common law or create new causes of action. Common law continues to be a significant aspect of the US legal system, influencing court rulings and legislative decisions.
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Common law in other countries
Common law, also known as judicial precedent, judge-made law, or case law, is the body of law primarily developed through judicial decisions rather than statutes. Common law has evolved from the legal system administered by the common-law courts of England since the Middle Ages. It stands in contrast to the civil law system, which is widespread in continental Europe and elsewhere.
The English common law system has directly influenced the legal systems of several other countries, particularly former British colonies and Commonwealth countries. These include Australia (both federally and in each of the states and territories), the Caribbean jurisdictions of Antigua and Barbuda, Barbados, the Bahamas, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, Trinidad and Tobago, and many other generally English-speaking countries or Commonwealth countries (except Scotland and Malta).
Even countries that were not colonized by England, such as Japan, France, and Germany, often choose the law of a common law jurisdiction like New York for their contracts due to its depth and predictability. Similarly, American corporations often include a Delaware choice of law clause in their contracts relating to corporate law issues because of the deep body of law in Delaware on these issues.
Some countries that were colonized by other nations have retained their prior civil law system to respect the civil rights of the local population. For example, South Africa and Sri Lanka follow Roman Dutch law, while Quebec follows the civil code of France in part.
Ghana, a former British colony, has also retained the common law system in its constitution, which was enshrined in 1992. The doctrine of judicial precedence, based on the principle of stare decisis as applied in England and other pure common law countries, also applies in Ghana.
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Common law vs civil law
Common law, also known as case law or judge-made law, is a legal system that originated in England during the early Middle Ages. It is primarily based on judicial decisions and precedent rather than statutes. In other words, it relies on previous similar cases and judicial rulings made in those cases. Common law is deeply rooted in stare decisis, which means "to stand by things decided". It is important to note that common law may incorporate certain statutes, but its essence lies in precedent. This system is prevalent in countries that were former British colonies or protectorates, including the United States and most members of the Commonwealth.
In contrast, civil law, rooted in the Roman Empire, is a legal system characterized by its reliance on comprehensive legal codes as the primary source of law. Civil law is widely practiced in continental Europe and is the most common legal system in the world, with about 150 countries following it. Unlike common law, civil law judges tend to give less weight to judicial precedent and more weight to the legal codes. For example, the Napoleonic Code expressly forbade French judges from pronouncing general principles of law.
One key difference between the two systems is their approach to contracts. Common law provides extensive freedom of contract, with few implied provisions. In a common law system, it is crucial to set out all the terms governing the relationship between the parties in the contract itself. On the other hand, civil law systems imply several provisions into contracts, and the contract may be shorter as ambiguities can be resolved by operation of law.
Another distinction lies in their prescriptive nature. Civil law systems are generally more prescriptive than common law systems. In a civil law jurisdiction, unless a contract specifies arbitration, it will be enforced by administrative courts, and certain infrastructure projects are referred to by well-defined legal concepts. In contrast, a common law system is more flexible, allowing governments to enact specific legislation to protect citizens' rights or address restrictions for infrastructure projects.
In conclusion, common law and civil law represent two distinct legal traditions with unique characteristics. Common law, prevalent in former British colonies, emphasizes judicial precedent and stare decisis, while civil law, widely practiced in continental Europe, relies on comprehensive legal codes and gives less weight to precedent. These differences influence how contracts are interpreted and the level of government intervention in infrastructure projects. Understanding these distinctions is crucial for navigating the legal landscape in different jurisdictions.
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Frequently asked questions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided".
Common law relies on detailed records of similar situations and statutes to guide court rulings when the outcome cannot be determined based on written rules of law. The presiding judge determines which precedents to apply in each new case.
Common law is used in several countries around the world, including the United States, Canada, India, Australia, Hong Kong, New Zealand, and the United Kingdom.
Civil law, which originated in mainland Europe, is a comprehensive, codified set of legal statutes created by legislators. It centres around a clear set of rules for how judges need to rule for specific disputes. Common law, on the other hand, is based on judicial precedent and allows judges more discretion in deciding cases.
