Kara Sears
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is one of the two main legal systems used today throughout the world, the other being civil law. Common law originated in England during the Middle Ages and is now practised in several countries, including the US, Canada, India, and Australia. It is used to determine legal disputes by relying on detailed records of similar situations and statutes, as there is often no official legal code that can be applied to a case.
| Characteristics | Values |
|---|---|
| Basis | Court decisions, also known as case law |
| Sources | Caselaw and legal precedent |
| Application | Applied in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law |
| History | Originated in England during the Middle Ages |
| Current Use | Used in the US, Canada, India, Australia, and many other English-speaking or Commonwealth countries |
| Other names | Case law, stare decisis |
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What You'll Learn
Common law is a body of unwritten laws
Common law is deeply rooted in stare decisis, a Latin term that means "to stand by things decided". This means that common law is based on the principle of adhering to previous rulings and decisions, also known as case law or judicial precedent. The decisions of higher courts are typically binding on lower courts within the same jurisdiction. This gives common law the advantage of stability and consistency, as outcomes are based on previous case law rather than subjective viewpoints.
The process of determining the applicable law in a given situation under common law involves several stages of research and analysis. It requires ascertaining the facts, locating relevant statutes and cases, extracting principles and analogies from court decisions, and then integrating this information to determine the applicable law. This law is then applied to the specific facts of the case.
Common law is flexible and adaptable, as it can respond to changes in society without requiring legislative intervention. Higher courts can overrule prior decisions as "bad law" and establish new precedents. This allows common law to address situations that may not have been originally predicted or addressed by statutes. However, it is important to note that common law is not absolutely bound by precedent and can reinterpret and revise the law to adapt to new trends in political, legal, and social philosophy.
Common law has its pros and cons. On the one hand, it promotes stability, consistency, and efficiency by providing a framework for judges to follow previous rulings. On the other hand, past decisions may shape future rulings in ways that marginalize or disempower certain groups until societal changes prompt a judicial body to overturn the precedent.
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Common law is based on legal precedents
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that originated in England during the Middle Ages, specifically in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. The doctrine of precedent developed during the 12th and 13th centuries as the collective judicial decisions that were based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning.
Common law is a flexible system of law that allows for adaptation to new situations that were not contemplated at the time by the legislature. It is based on the principle of stare decisis, which means "to stand by things decided". In practice, this means that judges follow previous decisions and rulings, also known as case law, when dealing with similar cases. The decisions of higher courts are binding on cases tried in lower courts, promoting stability and consistency in the legal system. However, lower courts can modify or deviate from precedents if they are outdated or if the current case is substantially different.
Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be directly applied to a case. Instead, judges determine which precedents are relevant and how they should be applied to the specific facts of the case. This process involves interpreting and distinguishing previous cases, as well as considering the underlying principles and policies. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common law is used in many countries around the world, including the United States, Canada, India, Australia, and other Commonwealth countries. It is one of the two main legal systems in use today, alongside civil law. Civil law, in contrast, relies primarily on codes and statutes created by legislators. It provides a comprehensive set of legal rules and procedures that govern how judges rule on specific disputes.
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Common law relies on case law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common law relies on case law to determine legal disputes.
Case law is a legal principle known as stare decisis, a Latin phrase that means "to stand by things decided". In practice, this means that judges need to follow previous rulings and decisions when dealing with similar cases. The doctrine of precedent, which is central to common law, developed during the 12th and 13th centuries, emerging from tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning.
In common law systems, case law and legal precedent guide decision-making. Judges determine which precedents apply to a particular case, and these precedents are binding in future cases tried in lower courts. This promotes stability and consistency in the legal system. While lower courts generally follow higher court precedents, they can modify or deviate from them if they are outdated or if the current case differs significantly.
Common law originated in England during the Middle Ages in the King's Court (Curia Regis). It was further developed in the 13th century by Bracton's On the Laws and Customs of England, which led to the yearly compilations of court cases known as Year Books. Common law then spread to North America during the 17th and 18th centuries and is now practised in several countries, including the US, Canada, Australia, India, and the UK.
The use of case law in common law systems allows for adaptability, as the law can be interpreted and applied to new situations not contemplated by the legislature. This flexibility distinguishes common law from civil law systems, which rely primarily on codes and statutes. Civil law, which originated in mainland Europe, provides clear rules for judges to follow in specific disputes.
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Common law is contrasted with civil law
Common law, also known as case 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 influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. The U.S. common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. Common law is practiced in Australia, Canada, India, New Zealand, Hong Kong, the United Kingdom, and the United States.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It centres around a comprehensive code of statutes that clearly outlines everything from the procedures for handling claims to the punishment for offenses. Civil law systems provide clear rules for how judges need to rule in specific disputes. Civil law originated in mainland Europe and is less flexible than common law. While common law emphasizes precedent, civil law does not have the same concept of stare decisis, or the idea that past decisions are binding for future cases. In civil law, only legislative enactments are considered binding for all.
Another key difference is that common law systems have greater flexibility in granting different types of security over assets. They also have the concept of trusts, which enable security interests to be held by a trustee for lenders in a syndicated loan without the need for formal transfer or re-registering of security interests in the names of new lenders. Civil law does not have such a concept, and security interests generally need to be re-registered in the name of the new lender, incurring additional costs.
In terms of business, common law jurisdictions such as England and the US emphasize reorganization when a business faces financial trouble, while civil law jurisdictions focus on liquidation. Additionally, doctrines in civil law jurisdictions, such as France, can prohibit or severely restrict a target company and its subsidiaries from providing guarantees or security in connection with the acquisition of the target company's shares.
In summary, common law and civil law differ in their sources of authority, with common law relying on case law and precedent, while civil law is based on codes and statutes created by legislators. Common law allows for more interpretation and flexibility, while civil law provides clear, predetermined rules for judges to follow. These differences have practical implications for various legal and business matters, including security interests and insolvency proceedings.
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Common law is influenced by stare decisis
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is used to determine legal disputes in several countries around the world, including the US, Canada, India, and Australia. It is distinct from civil law, which relies primarily on codes and statutes.
At the center of common law is the principle of stare decisis, a Latin phrase that means "to stand by things decided". 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, the court will rule in alignment with the previous decision. This doctrine operates both horizontally and vertically. Horizontal stare decisis occurs when a court adheres to the ruling of a previous court at the same level, such as when a court of appeals follows the ruling of another court of appeals. Vertical stare decisis, on the other hand, occurs when a court applies precedent from a higher court, such as when a court of appeals follows a ruling from the Supreme Court.
The doctrine of stare decisis promotes stability and consistency in the legal system by preventing the same legal question or issue from being litigated repeatedly. It also lessens the need for subsequent litigation, saving time and energy for the judiciary. Stare decisis fosters predictable, unbiased, and consistent development of legal principles, increasing reliance on judicial decisions and contributing to the integrity of the judicial process.
However, stare decisis is not an absolute rule, and courts can deviate from precedent in certain circumstances. Lower courts can modify or deviate from precedents if they are outdated or if the current case is substantially different. While rare, lower courts can also overturn precedents, particularly in constitutional cases where prior decisions are "unworkable or badly reasoned".
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Frequently asked questions
Common law is a body of laws based on legal precedents established by the courts. It is also known as case law.
Common law relies on detailed records of similar situations and statutes to guide decisions as there is no official legal code. The presiding judge determines which precedents apply to a case.
Common law originated in England during the Middle Ages in the King's Court (Curia Regis). It was then spread to North America during the 17th and 18th centuries and continues to influence many countries today.
Civil law systems, prevalent in mainland Europe, rely primarily on codes and statutes, with clear rules for judges. Common law, on the other hand, emphasises precedent and allows for interpretation, adapting to situations not contemplated by the legislature.
Common law forms the basis of legal systems in many countries, including the US, Canada, Australia, India, and some Caribbean nations. It also influences English-speaking and Commonwealth countries.
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