Keith Mack
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a legal system that primarily developed in England and relies on judicial decisions and precedents rather than codified statutes. Central to this system is the principle of stare decisis, which mandates that courts follow established precedents in making rulings. Common law is more malleable than statutory law, as common law courts can reinterpret and revise the law without legislative intervention. Common law systems are considerably more complicated in practice, and while they promote stability and consistency, they are also flexible and can respond to changes in society.
| Characteristics | Values |
|---|---|
| Basis | Common law is based on legal precedents established by the courts. |
| Flexibility | Common law is flexible and can respond to changes in society. |
| Stability and consistency | Common law promotes stability and consistency as the outcome is based on previous caselaw, not subjective, personal viewpoints. |
| Judicial opinions | Judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases. |
| Binding nature of decisions | Decisions of higher courts are binding on lower courts. |
| Jurisdiction | The decisions of a court are binding only in a particular jurisdiction. |
| Evolution | Common law evolves through a series of gradual steps, so that over a decade or more, the law can change substantially without a sharp break. |
| Human rights | Common law plays a significant role in protecting human rights and public interest. |
| Contracts | Common law establishes a legal framework for addressing disputes that arise from contracts. |
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What You'll Learn
Common law is flexible and adaptable
Common law is a legal system that primarily developed in England and is based on judicial decisions and precedents rather than a set of codified statutes. It is flexible and adaptable in several ways.
Firstly, common law is flexible because it can respond to changes in society. It is not bound by a strict legal code, allowing it to address situations not originally predicted by lawmakers. This flexibility is further enhanced by the ability of higher courts to overrule prior decisions as "bad law", without requiring legislative intervention. This means that common law can adapt to new trends and changes in political, legal, and social philosophy. For example, the evolution of the law of negligence illustrates how common law evolves in the hands of judges, who have been "making law" for hundreds of years.
Secondly, common law is adaptable in that it allows for the modification or deviation from precedents if they are outdated or if the current case differs significantly from the precedent case. This adaptability ensures that the law can keep up with the changing needs and contexts of society. Lower courts have the power to make these adjustments, demonstrating the flexibility of the common law system.
Thirdly, common law is flexible in its application across different jurisdictions. While the principle of stare decisis, or "let the precedent stand," is central to common law, the specific precedents applied can vary between jurisdictions. This allows for a degree of localized interpretation and application of the law, making the system adaptable to different contexts and cultural norms.
Lastly, common law is adaptable in its ability to influence and be influenced by legislation. While common law is based on judicial decisions, it can provide the inspiration for new legislation to be enacted. This two-way interaction between common law and statutes allows for a more dynamic and responsive legal system. For example, after the American Revolution in 1776, the decisions made in US courts added to the body of common law, influencing its development.
In conclusion, common law is flexible and adaptable due to its ability to respond to societal changes, modify precedents, adapt to different jurisdictions, and influence and be influenced by legislation. These characteristics contribute to the dynamic nature of the common law system.
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Common law is based on precedent
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a legal system that primarily developed in England and is now used in several countries, including the United States, Australia, Canada, India, and New Zealand. In a common law jurisdiction, determining "what the law is" in a given situation involves several stages of research and analysis. This includes ascertaining the facts, locating relevant statutes and cases, and extracting principles, analogies, and statements by courts to predict how the next court might rule.
The principle of stare decisis, a Latin phrase meaning "to stand by things decided," is central to common law. This means that courts and judges are generally required to follow earlier decisions, rulings, and precedents, also known as caselaw, when dealing with similar cases. For example, a court's decision based on specific facts is binding for future cases with the same or closely related issues. This applies across jurisdictions, with decisions by higher courts, such as a supreme court, typically binding on lower courts. However, lower courts may modify or deviate from precedents if they are outdated or substantially different from the current case.
Common law is flexible and can address situations not predicted by lawmakers. It evolves through a series of gradual steps, with judges playing a crucial role in this evolution. The reasons given for decisions are often more important than the immediate outcome, as they provide rationales and policies that can be balanced with judgment in future cases. This is reflected in the length of judicial opinions, which can be quite extensive.
The evolution of common law stands in contrast to civil law systems, which rely primarily on codes and statutes. Civil law, which originated in mainland Europe, provides a comprehensive code of statutes that outlines procedures and punishments. In civil law systems, judicial decisions are not binding in future cases, even with similar facts. Common law, on the other hand, promotes stability and consistency by ensuring that outcomes are based on previous caselaw rather than subjective viewpoints.
While common law is based on precedent, it is important to note that it is not absolutely bound by it. Common law courts can reinterpret and revise the law to adapt to new trends in political, legal, and social philosophy. This flexibility allows common law to change substantially over time without sharp breaks, reducing disruption.
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Common law is not the only legal system
Common law is a legal system that is based on court decisions and judicial precedents rather than statutes and written laws. It is a flexible system that can adapt to changes in society and address situations not originally predicted by lawmakers. Common law is practised in several countries around the world, including the US, Canada, India, Australia, and the UK.
However, common law is not the only legal system in existence. Another widely used system is civil law, which originated in mainland Europe and is centred around a comprehensive code of statutes that outline specific rules and procedures for judges to follow. Civil law systems provide clear guidelines for handling claims and determining punishments for offences, whereas common law systems rely on caselaw and legal precedent to guide their decisions.
In a common law jurisdiction, determining "what the law is" in a given situation involves several stages of research and analysis. It requires ascertaining the facts, locating relevant statutes and cases, extracting principles and statements from various courts, and then applying the relevant law to the facts. Common law promotes stability and consistency because outcomes are based on previous caselaw rather than subjective viewpoints.
In contrast, civil law systems aim to standardise the application of laws to create order and reduce bias. While civil law judges may consider precedents, they are not bound by them in the same way as common law judges. This allows civil law systems to adapt to changing circumstances and address new issues that may not be covered by existing statutes.
In summary, while common law is a widely used legal system, it coexists with other systems such as civil law, which offers a different approach to handling legal disputes and interpreting laws. Both systems have their advantages and can be adapted to suit the specific needs and contexts of different countries and jurisdictions.
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Common law is a body of unwritten laws
Common law originated in England and was spread to its colonies, including the United States, during the 17th and 18th centuries. It is now practised in several countries, including the US, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. In the US, common law plays a significant role in the Supreme Court, which often adheres to previous rulings when interpreting laws and constitutional provisions.
The evolution of common law is in the hands of judges, who have made law for hundreds of years. Judges have the power to reinterpret and revise laws without legislative intervention, allowing the law to adapt to new trends in political, legal, and social philosophy. This evolution occurs through a series of gradual steps, so that over time, the law can change substantially without sharp breaks, reducing disruption.
Common law is particularly useful in addressing unusual cases where existing statutes or written rules do not provide a clear outcome. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. While common law promotes stability, it has also been associated with the marginalization and disempowerment of certain groups due to the influence of past decisions on future rulings.
In summary, common law is a dynamic and flexible legal system that adapts to societal changes through judicial interpretation and precedent. It is a body of unwritten laws that guides decision-making in unusual cases and promotes stability and consistency in legal outcomes.
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Common law is based on stare decisis
Common law is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a specific case. The judge presiding over a case determines which precedents apply to that particular case.
At the centre of common law is a legal principle known as stare decisis, which is a Latin phrase that roughly means "to stand by things decided". In practice, stare decisis is a way of saying that courts and judges need to follow earlier decisions and rulings, otherwise known as caselaw, when dealing with similar cases later. Stare decisis is the doctrine that courts will adhere to precedent in making their decisions. When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make its decision in alignment with the previous court's decision. The previous deciding court must have binding authority over the court; otherwise, the previous decision is merely persuasive authority.
Stare decisis can be horizontal or vertical. Horizontal stare decisis refers to a court adhering to its own precedent. For example, if the Seventh Circuit Court of Appeals adheres to the ruling of a previous Seventh Circuit Court of Appeals case, that would be horizontal stare decisis. Vertical stare decisis, on the other hand, obligates lower courts to adhere strictly to rulings made by higher or appellate courts within the same jurisdiction as they have persuasive authority. For example, an appellate court must abide by decisions made by the U.S. Supreme Court, as it is the federal court of last resort with binding authority.
Stare decisis assures that the law won't change randomly and allows society to assume that fundamental beliefs are based on the law rather than on people's preferences. It also lessens the need for subsequent litigation and further saves the time and energy of the judiciary by preventing it from having to continually decide the same legal question or issue if it has already been decided in another case.
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