Gavin Howe
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that relies on caselaw and legal precedent to guide decisions, rather than codes and statutes. Common law originated in England during the Middle Ages and has since spread to many other countries, including the United States, Canada, Australia, and India. The term common law refers to the fact that this system of law was common throughout the country, replacing the previous system of local customs and laws that varied by locality. At the center of common law is the principle of stare decisis, which means that judges are bound to follow the decisions of earlier judges in cases with similar facts.
| Characteristics | Values |
|---|---|
| Based on precedent | Stability and consistency |
| Development of law incrementally and by analogy with established authorities | Adaptability to the unforeseen |
| Decisions made by higher courts are binding on lower courts | Flexibility |
| Originated in England in the Middle Ages | |
| Decisions are based on previous caselaw, not subjective viewpoints | |
| Influences the decision-making process in unusual cases | |
| Based on rules and customs |
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What You'll Learn
Common law's origins in medieval England
The common law system, with its emphasis on precedent and the development of law through analogy, has its origins in medieval England. The English common law emerged in the early Middle Ages within the King's Court (Curia Regis) in Westminster, near London. This royal court served as the central legal authority for most of the country. The common law of England was largely shaped following the Norman Conquest of 1066, building upon the Anglo-Saxon legal traditions established during the reign of Alfred the Great (871).
Medieval England's legal system was characterised by local customs and varying laws in each locality. The pre-Norman legal landscape was influenced by the church and governed by local customs, with the Anglo-Saxons adopting rules similar to those used by the Germanic peoples of northern Europe. Over time, the development of the common law system led to a more standardised approach, as judges became bound by the principle of stare decisis, or precedent. This principle, derived from the Latin phrase "to stand by things decided", required judges to follow the decisions and interpretations of earlier judges in cases with similar facts.
The criminal justice system in 12th and 13th century England underwent a significant transition. Initially, trials relied on methods such as trial by ordeal, including trial by cold water and trial by hot iron, where divine intervention was believed to reveal the truth. However, by the early 13th century, following the Fourth Lateran Council in 1215, the Catholic Church withdrew its priests from these trials, prompting a shift towards trial by jury for felony crimes.
Medieval English legal texts, such as Æthelred's Code from around 603, provide valuable insights into the legal thinking of the time. The consideration of a defendant's state of mind, the emphasis on redemption, and the belief in the difficulty of judging another person's intentions all played a role in shaping the legal principles of the era. The English common law system directly influenced the legal development in Wales (since 1536), Ireland, and partially Scotland, and its legacy can be seen in the modern legal systems of many Commonwealth nations and the United States.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
The influence of Christianity
The common law system is based on the principle of stare decisis, which means "to stand by things decided". This means that judges are required to follow the decisions and interpretations of previous judges in similar cases. This system of precedent developed to replace the pre-Norman system of local customs and laws, creating a unified system of law across the country.
Christianity has had a significant influence on the development of common law principles, particularly in the Western legal tradition. The Christian moral framework, based on notions of right and wrong, good and evil, and natural law, has shaped the way laws have been interpreted and applied. The Bible, particularly the New Testament, with its focus on justice, mercy, and love, has been a key source of guidance for lawmakers and judges.
One of the key ways Christianity has influenced common law is through the concept of natural law. Natural law theory holds that there are inherent moral laws that are accessible through human reason and that these laws are given by God. This theory has been used to justify moral principles and legal rights, such as the right to life and the pursuit of happiness. The idea of natural rights, given by God, has been a powerful tool in shaping legal systems and challenging unjust laws.
Biblical principles have also influenced the development of common law. For example, the Ten Commandments, which form the basis of Jewish and Christian moral law, have had a profound impact on legal systems. Commandments against murder, theft, and bearing false witness have been incorporated into legal codes and have shaped societal norms. The Golden Rule, to "do unto others as you would have them do unto you", has also influenced legal thinking, promoting reciprocity and fairness in the law.
Christianity has also influenced the development of legal institutions and processes. The medieval church courts, for example, played a significant role in shaping common law. These courts dealt with a range of matters, including moral and ethical issues, and their decisions influenced the development of legal precedent. Canon law, the internal legal system of the Catholic Church, has also had an impact on common law, particularly in areas such as marriage and property law.
In addition, Christian ethical principles have influenced the way laws are interpreted and applied. The Christian emphasis on compassion and mercy has, at times, mitigated the harshness of legal codes. The concept of forgiveness, for instance, has influenced legal practices such as pardons and amnesty. Similarly, the Christian value of reconciliation has influenced restorative justice practices, which seek to repair the harm caused by crime and promote healing for victims.
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Common law in the US
The defining characteristic of common law is its reliance on precedent, with judges required to follow the decisions and rulings of previous cases when dealing with similar situations. This is known as stare decisis, a Latin phrase meaning "to stand by things decided". The principle of stare decisis promotes stability and consistency in the US legal system as it ensures that the ultimate outcome of a case will be based on previous caselaw rather than subjective viewpoints.
However, common law also allows for some interpretation and is adaptable to unforeseen situations. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes, and higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers to act. This flexibility allows common law to respond to changes in society.
The US common-law system has various sources, including the common law principles of England, equity principles, Christianity, and ecclesiastical courts. While US courts may look to the decisions of English courts when ascertaining the principles and rules of common law, they are not required to adhere to these decisions. Instead, they may also consider the decisions of other states within the Union.
Today, the US operates under a dual system of both common and civil law. While every state except Louisiana has a common law legal system, civil law is also used, particularly in areas influenced by the civil-law tradition of the European Union.
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Common law in Scotland
Common law is a legal system that relies on caselaw and legal precedent to guide decisions, rather than relying on a comprehensive set of statutes and codes. A central principle of common law is stare decisis, which means that judges are bound to follow the decisions and interpretations of previous judges in similar cases.
In the 12th century, the introduction of feudalism and the expansion of the Kingdom of Scotland established the modern roots of Scots Law, which was gradually influenced by Anglo-Norman and continental legal traditions. After the Union with England Act of 1707, Scotland retained a distinct legal system, but English influence increased. The House of Lords, acting as the supreme court of appeal from Scotland, often applied English law in Scottish appeals.
In the 19th century, the Scottish approach to precedent developed into a stare decisis akin to that of England, reflecting a narrower, more modern approach to the application of case law. While the substantive rules of common law in Scotland and England are not the same, they share similarities in many matters, particularly those of UK-wide interest. The influence of English-trained judges on Scottish common law through rulings of the Supreme Court has been considerable, especially in areas where conformity across the UK was required for pragmatic reasons.
Overall, common law in Scotland has a unique character, influenced by various historical sources and legal traditions, and continues to evolve through the interpretation and application of legal precedent.
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Common law's adaptability
Common law is a legal system that originated in England during the Middle Ages. It is based on judicial decisions and reported cases, and it has been adopted and adapted by many countries, including the United States, Canada, Australia, and India.
One of the key characteristics of common law is its adaptability. Common law is adaptable because it relies on legal precedent and caselaw rather than a strict set of written rules. This means that common law can be applied to situations that were not contemplated or predicted by lawmakers when the original statutes were created. For example, as technology continues to evolve and play a larger role in our lives, common law's ability to be interpreted will become increasingly important.
In a common law system, judges are required to follow the decisions and interpretations of previous cases, particularly those decided by higher courts. This is known as stare decisis, which roughly translates from Latin to "to stand by things decided". However, lower courts have some flexibility to modify or deviate from precedents if they are outdated or if the current case differs substantially from the precedent case. This flexibility allows common law to adapt to changes in society and new situations.
The adaptability of common law also lies in its ability to be influenced by principles of equity, natural justice, and fairness, as seen in the Scottish approach to precedent. Additionally, common law can inspire new legislation, further demonstrating its adaptability and influence on legal systems.
While common law provides stability and consistency by relying on previous caselaw, its adaptability allows it to address unforeseen situations and respond to societal changes. This balance between stability and adaptability is a key feature of common law systems.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law.
Common law has been administered by the courts of England since the Middle Ages. It then spread to North America during the 17th and 18th centuries, and was adopted by each of the states following the American Revolution. Today, common law is practised in the US, the UK, Australia, Canada, Hong Kong, India, New Zealand, and more.
Common law relies on stare decisis, which means "to stand by things decided". In other words, courts and judges need to follow earlier decisions and rulings when dealing with similar cases later.
Common law promotes stability and consistency because everyone knows that the outcome will be based on previous caselaw, rather than subjective viewpoints. It is also adaptable and flexible, as it can address situations not originally predicted by lawmakers.
