Cameron Miranda
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means to stand by things decided. Common law is usually contrasted with civil law systems, which are used in Continental Europe, Mexico, most of Central and South America, and some African countries. The common law of England was largely created in the period after the Norman Conquest of 1066 and has evolved into the legal systems found in the United States and most Commonwealth countries.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| History | Common law systems trace their history to English common law, which was largely created after the Norman Conquest of 1066. |
| Sources | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
| Contrast with Civil Law | Common law is usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. |
| Flexibility | Common law is flexible as it can respond to changes in society without requiring lawmakers to pass changes in statutes and codes. |
| Primary Sources | In the United States, primary sources of law include the Constitution, state constitutions, federal and state statutes, common law, case law, and administrative law. |
| Stare Decisis | Common law is deeply rooted in stare decisis, which means adhering to precedents established by previous decisions. |
| Case Law | Case law refers to law that comes directly from court decisions and includes judicial interpretations of the Constitution, statutes, or common law. |
| Precedent | Precedent plays a crucial role in common law, with judges determining which precedents to apply when deciding new cases. |
| Applicability | Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and some Commonwealth countries. |
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What You'll Learn
Common law's roots in English law
Common law is a body of 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 courts follow precedents established by previous decisions. Common law is usually contrasted with civil law systems, which are in use in Continental Europe, Mexico, most of Central and South America, and some African countries.
The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the reign of Alfred the Great (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. Crimes were treated as wrongs for which compensation was made to the victim. The Norman Conquest did not immediately end Anglo-Saxon law, but a period of colonial rule by the mainly Norman conquerors produced change. Land was allocated to the king's feudal vassals, and serious wrongs were regarded mainly as public crimes punishable by death and forfeiture of property.
In the 13th century, the early development of case law was traced to Bracton's On the Laws and Customs of England, which led to the yearly compilations of court cases known as Year Books. The first extant Year Book was published in 1268, the same year that Bracton died. These Year Books are known as the law reports of medieval England and are a principal source of knowledge about the developing legal doctrines, concepts, and methods from the 13th to the 16th centuries, when common law took on a recognisable form.
For several hundred years, judge-made common law was the primary source of law before Parliament gained the power to create statutory law. The common law system then spread to the United States and most of the member states of the Commonwealth (formerly the British Commonwealth of Nations) during the colonial period of the 17th and 18th centuries.
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Common law vs civil law
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the principle of stare decisis, which means that courts follow precedents established by previous decisions. Common law is largely based on precedent and draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is flexible, as higher courts can overrule prior decisions without waiting for lawmakers to do so. Common law originated in medieval England and is practiced in several countries, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
In contrast, civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, notably with the Napoleonic Code and the German Bürgerliches Gesetzbuch. Unlike common law, civil law systems are characterized by their reliance on legal codes as the primary source of law. Civil law is the most common legal system globally, practiced in about 150 countries. It is generally more prescriptive than common law, and civil law judges tend to give less weight to judicial precedent. Civil law is used in Continental Europe, Mexico, most of Central and South America, and some African countries, including Egypt.
One key difference between common law and civil law systems is the role of written decisions and precedent. Common law systems heavily emphasize precedent, while civil law judges may give less weight to previous decisions and interpret the text of the code. In common law, the decisions of the highest court are generally binding and can only be overturned by that same court or through legislation. Common law systems also provide extensive freedom of contract, with few provisions implied into the contract by law. In contrast, civil law systems imply various provisions into contracts, and contracts may be shorter due to the ability to remedy ambiguities by operation of law.
Another distinction is the process of establishing consistent outcomes. While both common law and civil law aim to achieve consistent outcomes, they differ in their approaches. Common law relies on institutionalized opinions and interpretations from judicial authorities and public juries, while civil law uses legal codes as the primary source of law. Common law systems are less prescriptive than civil law systems, allowing governments more flexibility in enacting specific legislation to protect citizens or establish infrastructure programs.
The sources of common law can be traced back to the English common law, which was influenced by Roman law and later developed into the Napoleonic Code. Over time, common law evolved as a distinct system, emphasizing judicial precedent and unwritten laws. The early development of common law in the 13th century led to the yearly compilations of court cases known as Year Books, which served as a principal source of legal knowledge during the period.
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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)
Common law's flexibility
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 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 flexibility of common law lies in its ability to respond to societal changes. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes, which can be a lengthy or impossible process. In common law systems, higher courts can overrule prior decisions as "bad law" without needing the approval of lawmakers. This means that common law can adapt to new situations and circumstances more quickly and effectively.
For example, in the United States, common law is one of the primary sources of law, alongside the Constitution, state constitutions, federal and state statutes, case law, and administrative law. When a statute exists, courts must apply it to the facts of a case. However, if no statute is available, courts defer to common law or case law. Common law, in this case, refers to law that has not been codified or passed by a legislature but is applied by courts based on tradition and the legal history of the United States, dating back to English common law.
The flexibility of common law is also evident in its ability to inspire new legislation. As societal norms and values evolve, common law can provide a basis for enacting new statutes that reflect these changes. This ensures that the law remains relevant and responsive to the needs and expectations of society.
Additionally, common law is flexible in that it allows for differences between districts. While the overall goal of common law is to establish consistent outcomes, elements of common law may differ based on the case-by-case traditions of individual jurisdictions. This flexibility allows for the incorporation of local customs and values into the legal system.
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Common law in the US
Common law, also known as case law or judge-made law, is a body of 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". Common law is usually contrasted with civil law systems, which are used in Continental Europe, Mexico, most of Central and South America, and some African countries.
The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. It is not a pure common-law system as it has countless codified statutes that courts must consider. However, the principle of stare decisis remains constant in US common law legal systems. This means that even when interpreting a statute and not applying common law, prior court decisions interpreting the same statute are considered precedent and are therefore binding.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is flexible as it can respond to changes in society. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes. Higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to do so.
In the US, common law is one of the primary sources of law, along with the US Constitution, state constitutions, federal and state statutes, and administrative law. It has been administered by the courts of England since the Middle Ages and has influenced the legal systems of most Commonwealth countries. The common law of England was largely created in the period after the Norman Conquest of 1066, although Anglo-Saxon law still played a role.
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Common law and stare decisis
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin term meaning "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.
Common law is often contrasted with civil law systems, which are used in Continental Europe, Mexico, most of Central and South America, and some African countries. The primary contrast between the two systems is the role of written decisions and precedent as a source of law, which is one of the defining features of common law legal systems. Civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law, whereas common law systems trace their history to English common law.
In a common law legal system, relevant caselaw is essential. When determining a new case, the presiding judge will consider which precedents to apply. In a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent. Common law has been described as flexible since it can respond to changes in society. Higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers to do so.
Stare decisis, in the context of Anglo-American law, is the principle that a question once considered and answered by a court must elicit the same response each time the same issue is brought before the courts. This principle is observed more strictly in England than in the United States. While stare decisis provides consistency in decision-making, it may also lead to rigidity and legal hairsplitting. In rare cases, higher courts may overturn their own previous rulings, replacing the former precedent with a new one that lower courts must adapt to.
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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 or judge-made law.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is deeply rooted in stare decisis, which means that courts follow precedents established by previous decisions.
Common law was largely created in the period after the Norman Conquest of 1066. It operated as the primary source of law for several hundred years before Parliament acquired legislative powers to create statutory law.
Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. It has evolved from the English common law and is now practised in most Commonwealth countries.
