Gavin Howe
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems place great weight on precedent and past decisions from similar cases, which are known as precedents. In common law, judges create laws when they decide cases, and these decisions make up what is called the common law. The common law of England was largely created in the period after the Norman Conquest of 1066, and it has had a significant influence on the legal system in the United States. The Uniform Commercial Code (UCC), for example, is a codified framework governing commercial law that has been enacted in all 50 states. The significance of common law in US history lies in its evolution, stability, and consistency, promoting fairness and justice in the US legal system.
| Characteristics | Values |
|---|---|
| Common law vs Civil law | Civil law is a comprehensive, codified set of legal statutes created by legislators. Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Sources of law | Civil law systems rely on codes and statutes. Common law systems rely on caselaw and legal precedent. |
| Binding nature of precedents | In civil law systems, a judge's decision is not binding in future cases with different parties. In common law systems, precedents are binding. |
| Evolution of common law | Common law evolves as judges "make law". |
| Role of judges | Judges interpret which precedents apply to a case and can modify or overturn precedents. |
| Consistency | Common law promotes stability and consistency in the US legal system. |
| Marginalization of certain groups | Common law has historically led to the marginalization or disempowerment of certain groups. |
| Influence on legislation | Common law can inspire new legislation. |
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What You'll Learn
The evolution of common law
Common law is a body of unwritten laws based on legal precedents established by the courts. It is usually contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law systems trace their history to English common law, while civil law systems trace their history to the Roman law of the Corpus Juris Civilis. The primary contrast between the two systems is the role of written decisions and
Common law evolved and spread to North America during the 17th and 18th centuries, influencing the decision-making process in unusual cases where existing statutes did not apply. After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. The evolution of common law continued with the development of new legislation inspired by common law principles, such as the Uniform Commercial Code (UCC) enacted in all 50 states.
Common law is not static but evolves gradually through a series of steps, allowing the law to change substantially over time without sharp breaks. This evolution is driven by judges who interpret and apply precedents to new situations, shaping the criteria that juries use to interpret cases. However, societal changes and shifts in popular thought can also lead to the overturning of outdated or biased precedents, addressing the marginalization of certain groups that has occurred in the past due to common law traditions.
In conclusion, the evolution of common law in the US has been a dynamic process, influenced by its English origins, the development of precedents, and the interpretation and application of these precedents by judges. The evolution continues as society changes and new legislation is enacted, balancing stability and consistency with the need for adaptability in the legal system.
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Common law vs civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is usually contrasted with civil law, which has its roots in the Roman Empire and was comprehensively codified and disseminated in the 19th century, notably with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Common law systems place a great emphasis on precedent, while civil law judges tend to give less weight to it. Common law systems are less prescriptive than civil law systems, which clearly define the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence.
Common law is often regarded as the "law common to Europe", consolidating canon law, Roman law, and, to some extent, feudal law. It originated in medieval England and is the legal system of choice in the United States and other former British colonies or protectorates. In the US, the Uniform Commercial Code (UCC) is an example of a codified framework governing commercial law, enacted in all 50 states and other territories.
The evolution of common law is largely in the hands of judges, who have been "making law" for centuries. The reasons given for a decision are often more important than the outcome of a particular case, which is why judicial opinions tend to be lengthy and provide rationales and policies that can be balanced with judgment in future cases. Precedents are maintained over time through court records, historically documented in collections of case law known as yearbooks and law reports.
Civil law, on the other hand, is a more prescriptive system with a comprehensive set of legal codes that function as the primary source of law. It is currently the world's most common legal system, practised in about 150 countries, including Continental Europe, Mexico, most of Central and South America, and some African countries.
Louisiana is the only US state whose private civil law is heavily based on French and Spanish codes rather than English common law. Its private law is codified in the Louisiana Civil Code, which has since converged considerably with American law.
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Judges and their role in common law
Common law is a body of unwritten laws based on legal precedents established by the courts. It is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. In common law systems, judges play a crucial role in evolving the law and have been “making law” for hundreds of years. They do so by interpreting and applying precedents to the cases before them, thereby influencing the criteria that juries use to interpret cases.
The doctrine of precedent, or stare decisis, is a fundamental principle of common law, where judicial decisions form the basis for evaluating future cases. Judges presiding over common law cases determine which precedents apply to a particular case, and while higher courts' precedents are binding on lower courts, lower courts have some flexibility to modify or deviate from precedents if they are outdated or substantially different from the current case. This system of precedent promotes stability and consistency in the US legal system.
In common law countries, the path to becoming a judge typically involves completing formal legal education and then gaining significant experience in private legal practice, law teaching, or governmental legal service. Judges are then appointed or elected, with no competitive examination. In the United States, federal judges are appointed by the president or governor, and ideological and partisan considerations play a significant role in these appointments.
Once in office, common law judges enjoy greater power, prestige, and independence compared to civil law judges. They are not subject to supervision or inspection by a council of judges or a minister of justice and cannot be transferred from one court to another. The only administrative control over common-law judges is exercised by their judicial colleagues, and only in limited matters. Disciplinary sanctions for common law judges are rare and usually only occur in cases of misconduct or criminal prosecution.
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Common law in practice
Common law is a body of unwritten laws based on legal precedents established by the courts. It is often contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems place great weight on precedent and judicial decisions, while civil law systems rely primarily on codes and statutes.
In the United States, common law is a significant aspect of the legal system, influencing the decision-making process in unusual cases where existing statutes or written rules of law do not provide a clear outcome. The Uniform Commercial Code (UCC) is an example of a codified framework within common law, governing various aspects of commercial law across all 50 states and other territories.
The evolution of common law is largely driven by judges, who have "made law" for centuries. Judges create common law when they decide cases and their opinions become precedents for future cases. These precedents, known as stare decisis, are essential in common law, as they provide a basis for evaluating and deciding future cases. The decisions of higher courts are binding on lower courts, promoting stability and consistency in the legal system.
An example of common law in practice is the law of negligence. When determining liability in car accidents or other disputes involving injuries or property damage, judges rely on common law principles of negligence to establish fault. Similarly, common law defines the law of contracts, outlining the creation of contracts and the consequences of broken promises.
While common law has been influential in the US legal system, it has also faced criticism for its potential to marginalize or disempower certain groups. Past decisions and precedents may reflect outdated societal norms and biases, impacting future rulings until societal changes prompt a judicial body to overturn them.
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The history of common law
Common law is a body of unwritten laws based on legal precedents established by the courts. It is usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems trace their history to English common law, while civil law systems derive from the Napoleonic Code and the Corpus Juris Civilis of Roman law.
The common law of England was largely created in the period after the Norman Conquest of 1066. Under Anglo-Saxon rule, local customs governed most matters, while the church played a significant role in government. Crimes were treated as wrongs, and compensation was made to the victim. The Norman Conquest brought about a period of colonial rule, during which land was allocated to feudal vassals of the king. Serious wrongs were now regarded as public crimes punishable by death and property forfeiture. Elements of the Anglo-Saxon system that endured included the jury, ordeals (trials by physical test or combat), the practice of outlawry, and writs (orders requiring a person to appear before a court).
The doctrine of precedent, a key aspect of common law, developed during the 12th and 13th centuries. This period saw the emergence of the first common law scholars, such as Glanvill and Bracton, who were often clerics trained in Roman canon law. One of the most significant treatises of common law, Bracton's "De Legibus et Consuetudinibus Angliae" (On the Laws and Customs of England), was heavily influenced by the division of law in Justinian's Institutes. The main sources for the history of common law during the Middle Ages are the plea rolls and the Year Books, which were written in Latin and deposited in the UK National Archives.
In common law systems, precedents are maintained over time through court records and historical documentation in collections of case law known as yearbooks and law reports. Judges play a crucial role in common law by interpreting and applying precedents to new cases, thereby shaping the criteria used by juries to interpret cases. While common law promotes stability and consistency, it has also been criticised for leading to the marginalisation or disempowerment of certain groups due to outdated or biased past decisions.
In the United States, common law has significantly influenced the legal system, with the Uniform Commercial Code (UCC) being enacted in all 50 states and certain territories. The UCC is a codified framework governing various aspects of commercial law, demonstrating the adoption of codes in common law countries similar to those in civil 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 usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries.
Common law in the US promotes stability and consistency in the legal system. Judges create common law when they decide cases and write opinions explaining their decisions. These opinions are usually quite long, giving rationales and policies that can be balanced with judgment in future cases.
Common law examples in the US include negligence and contracts. For instance, determining which driver is responsible for damages caused by a car accident is usually resolved using the common law principles of negligence.
