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 derived from judicial decisions rather than statutes or constitutions. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is one of the two main legal systems used today, the other being civil law. Common law systems can be traced back to England during the Middle Ages and are still heavily relied on today by several countries, including the US, Canada, India, and Australia.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of law derived from judicial decisions, rather than statutes or codes. |
| Basis | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
| Purpose | Common law promotes stability and consistency in legal systems. |
| Evolution | The evolution of common law is in the hands of judges, who have "made law" for hundreds of years. |
| Jurisdiction | Common law is followed in several countries, including the US, Canada, India, and Australia. |
| Binding Nature | Judicial decisions are binding, and decisions of higher courts are generally binding on lower courts. |
| Flexibility | Common law allows lower courts to modify or deviate from precedents if they are outdated or if the current case is substantially different. |
| Contract Law | Common law provides extensive freedom of contract, with few provisions implied into the contract by law. |
| Limitations | Common law is less prescriptive than civil law and may not cover all legal scenarios. |
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What You'll Learn
Common law is derived from judicial decisions, not statutes or constitutions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from judicial decisions, or case law, rather than statutes or constitutions. This means that common law evolves over time, with judges making law for hundreds of years. The decisions of higher courts or legislatures carry more weight and are binding in future cases, even if the facts are different, unless the precedent is outdated. This is known as stare decisis, which means "to stand by things decided".
Common law systems rely on caselaw and legal precedent to guide their decisions, while civil law systems primarily rely on codes and statutes. Civil law is a comprehensive, codified set of legal statutes created by legislators, which clearly define the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Civil law systems have clear rules for how judges need to rule for specific disputes, whereas common law systems are based on the principle of stare decisis, promoting stability and consistency.
In common law systems, precedents are maintained over time through court records and are historically documented in collections of case law referred to as yearbooks and law reports. The reliance on judicial opinion is a strength of common law systems and is a significant contributor to the robust commercial systems in the United Kingdom and United States. Common law is less prescriptive than civil law, and provides for extensive freedom of contract.
The two main legal systems used today throughout the world are common law and civil law systems. Countries that follow a common law system are typically those that were former British colonies or protectorates, including the United States, Canada, India, and Australia. Civil law countries, on the other hand, were often former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central and South America and Central and Eastern Europe.
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Common law is a body of unwritten laws
Common law is a type of legal system that gives precedence to long-standing social and cultural customs, as opposed to written statutes or codified regulations. It is a body of unwritten laws based on judicial decisions, customs, and usage, which are often ancient and well-established. This is in contrast to civil law or statutory law, which are written laws that are enacted by a legislative body or a similar authority.
The concept of common law is deeply rooted in the history and tradition of a particular society. It evolves over time as a result of societal changes, judicial interpretations, and the adaptation of customs to new situations. Common law is often associated with the idea of "judge-made law," where judges play a significant role in developing and interpreting the law based on previous decisions and principles.
As a body of unwritten laws, common law relies heavily on precedent, which means that past decisions made by courts are used as guidelines for future decisions. This principle, known as stare decisis, promotes consistency and predictability in the legal system. It ensures that similar cases are decided in a similar manner, providing stability and continuity.
The development of common law involves the interpretation and application of legal principles by judges. When confronted with a dispute or a legal question, judges consider the facts of the case, examine previous relevant decisions (known as precedents), and apply the principles and reasoning from those precedents to the current case. Over time, a body of law emerges that guides future decisions and establishes a framework for resolving similar disputes.
Common law systems are prevalent in countries with a history of English influence, such as the United States, the United Kingdom, Canada, Australia, and New Zealand. Each of these countries may have unique variations and developments of common law, reflecting their specific cultural, historical, and social contexts.
In conclusion, the concept of common law as a body of unwritten laws underscores the importance of tradition, precedent, and judicial interpretation in shaping a legal system. It adapts to societal changes and ensures consistency in decision-making, contributing to the overall stability and fairness of the law.
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Common law is based on legal precedents
Common 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, 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.
Common law is derived from judicial decisions, rather than from statutes or constitutions. Legal systems that rely on common law as precedent are known as "common law jurisdictions". Until the early 20th century, common law was widely considered to derive its authority from ancient Anglo-Saxon customs. Common law is often defined as "unwritten law" or "judge-made law".
Common law systems rely on case law and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Civil law is a comprehensive, codified set of legal statutes created by legislators. A civil system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions.
While civil law is regularly updated, the goal of standardised codes is to create order and reduce bias in systems where laws are applied differently from case to case. Common law is similar in that it aims to establish consistent outcomes by applying the same standards of interpretation. However, in some instances, precedent depends on the case-by-case traditions of individual jurisdictions.
Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous case law and not on subjective, personal viewpoints. Judicial decisions are binding – decisions of the highest court can generally only be overturned by that same court or through legislation.
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Common law is influenced by public juries
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 case at hand. The judge presiding over a case determines which precedents apply to that particular case.
The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous case law and not on subjective, personal viewpoints.
In the jurisdictions of England and Wales, and Northern Ireland, since 2009, the Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts. It is the final court of appeal for civil law cases in all three UK jurisdictions, but not for criminal law cases in Scotland, where the High Court of Justiciary has this power.
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Common law is often more complicated than simplified systems suggest
Common 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, 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 presiding judge determines which precedents apply to a particular case.
The United States federal courts relied on private publishers until after the Civil War and only began publishing as a government function in 1874. Government publishers typically issue only decisions "in the raw", while private-sector publishers often add indexing, including references to the key principles of the common law involved, editorial analysis, and similar finding aids. Statutes are generally understood to supersede common law. They may codify existing common law, create new causes of action that did not exist in the common law, or legislatively overrule the common law.
Common law has furnished the basis for new legislation to be written. For example, the UK has long had a common-law offence of "outraging public decency". In 2019, the UK Parliament passed the Voyeurism (Offences) Act that officially made upskirting a crime, punishable by up to two years in prison. This new legislation was inspired by ancient common law.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts.
Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. It relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a particular case.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Civil law systems have clear rules for how judges need to rule for specific disputes.
Common law systems are used in countries that were former British colonies or protectorates, including the United States, Canada, India, and Australia.
