Keith Mack
The common law system, which is deeply rooted in stare decisis (to stand by things decided), is followed in many countries that were previously colonized by England, Great Britain, or the United Kingdom. In these countries, including Australia, the Caribbean, the United States, and Ghana, the common law forms the basis of their legal systems. This means that judges interpret the rules and declare the law based on customs and precedents. While there is no single document or source that constitutes the UK constitution, common law plays a crucial role in shaping it, influencing the understanding of the original meaning and its adaptation over time.
| Characteristics | Values |
|---|---|
| Basis of legal systems | Australia, Caribbean jurisdictions, United States, and English-speaking or Commonwealth countries |
| History | Traced to English common law |
| Judicial decisions | Made through precedent and rulings in previous similar cases |
| Judges | Identify what the law is and create it |
| Individual rights | Established |
| Public authorities | Subject to limitations and do not possess arbitrary power |
| Complexity | Interactions between common law, constitutional law, statutory law, and regulatory law |
| Binding | Court decisions are binding only in a particular jurisdiction |
| Adaptability | Common law adapts to changing circumstances |
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What You'll Learn
Common law and the UK constitution
The UK constitution is unique in that it is uncodified and can be altered relatively easily by the government of the day. This means that, unlike other countries, the UK constitution is not contained in a single document, but is instead spread across numerous sources, including statutes, court judgments, political conventions, and treaties with other nations.
One of the key features of the UK's legal system is its use of common law. Common law, also known as judicial precedent, judge-made law, or case law, is a system of law primarily developed through judicial decisions rather than statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, courts follow precedents established by previous decisions. When a similar case arises, judges will typically align their reasoning with the precedent set in previous decisions. However, in cases without precedent or clear legislative guidance, judges are empowered to establish new precedent.
The UK has a 'common law' system, which means that judges declare the law based on custom and precedent. While the courts interpret the rules, they also effectively create them by identifying what the law is. In doing so, they have established important features of the UK constitution, such as individual rights and the idea that public authorities are subject to limitations and do not possess arbitrary power.
The UK's common law system has influenced the constitutions of many other countries, particularly those that were formerly colonized by England, Great Britain, or the United Kingdom. For example, Ghana follows the English common law tradition inherited from British colonization. The laws of Ghana are mostly a modified version of imported British law, including common law and statutory law, which continues to adapt to the country's changing socio-economic and political landscape.
Common law plays a significant role in the interpretation and understanding of the UK constitution. Many phrases in the constitution have their meaning defined by the common law of the era, and common law canons have influenced the interpretation of written constitutions. James Stoner argues that it is not possible to understand the constitution without understanding common law.
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Common law in former British colonies
Common law, also known as judicial precedent, judge-made law, or case law, is deeply rooted in stare decisis, which means "to stand by things decided". It is a body of law primarily developed through judicial decisions rather than statutes. The presiding judge determines which precedents to apply in deciding each new case.
English common law was spread to the British colonies in America, Asia, Africa, and the Pacific. Common law was first established in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually supplanting the local folk courts and manorial courts. England spread the English legal system across the British Isles, first to Wales, then to Ireland, and later to overseas colonies.
Many former British colonies retain the common law system today, including Australia, the Caribbean jurisdictions of Antigua and Barbuda, Barbados, the Bahamas, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, Trinidad and Tobago, and many other generally English-speaking countries or Commonwealth countries. The United States also follows common law, with the partial exception of Louisiana and Puerto Rico.
In some cases, the adoption of common law in newly independent countries was controversial. For example, after the American Revolution, there was widespread distrust and hostility towards anything British, including common law. However, the Federalists believed that common law was the birthright of Independence, as the natural rights to "life, liberty, and the pursuit of happiness" were protected by common law.
In other cases, the common law was adapted to local colonial circumstances. For example, in North American colonies, the importation of African slaves required the implementation of new laws regulating master-slave relations. In Australian settlements, colonizers adopted the practice of terra nullius, or "nobody's land", thus not recognizing native claims to land and securing European land titles.
Some countries that were formerly colonized by other nations, such as Quebec, South Africa, and Sri Lanka, did not retain the common law system and instead followed the civil law system of the colonizing nation.
Ghana is another example of a former British colony that follows the English common law tradition. The laws of Ghana are mostly a modified version of imported law that is continuously adapting to the changing socio-economic and political realities of the country. Similarly, the law of India, Pakistan, and Bangladesh are largely based on English common law due to the long period of British colonial influence during the British Raj.
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Common law and the US constitution
Common law is the body of law primarily developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous decisions. In the past, common law pleading standards made it almost impossible for a pro se party (someone without a lawyer) to initiate a case. However, one of the major reforms of the late 19th and early 20th centuries was the abolition of these common law pleading requirements. Now, a plaintiff can initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong.
Common law systems are used in many countries that were previously colonized by England, Great Britain, or the United Kingdom, such as Australia, the Caribbean, and the United States. In the US, common law is the law of the states, to which federal judges are expected to defer. The US Constitution itself contains many phrases whose meanings were defined by the common law of the era. For example, the term ex post facto is a technical term that originates from common law.
Common law is usually contrasted with the civil law system, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Civil law systems trace their history to Roman law, whereas common law systems trace their history to English common law.
The adaptability of common law is one of its key features. It develops case by case, applying precedents to new cases that are similar to previous ones and reasoning by analogy when new circumstances arise. This adaptability has allowed common law to retain its authority in American life and support lawful liberty.
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Common law in civil law systems
The common law system, also known as judicial precedent, judge-made law, or case law, is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. Common law is largely based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case. Common law is usually contrasted with the civil law system, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries including Egypt and the Francophone countries of the Maghreb and West Africa. Civil law systems are characterized by their reliance on legal codes that function as the primary source of law. Civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, most notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900).
Countries following a common law system are typically those that were former British colonies or protectorates, including the United States, Australia, and Ghana. Judicial decisions are binding in common law systems – decisions of the highest court can generally only be overturned by that same court or through legislation. Common law systems are less prescriptive than civil law systems, and generally, everything is permitted that is not expressly prohibited by law. There is extensive freedom of contract in common law systems, with few provisions implied into the contract by law.
Civil law systems, on the other hand, are more prescriptive, with many provisions implied into a contract by law. Civil law is generally based on specific codes (e.g., civil code, codes covering corporate law, administrative law, tax law, and constitutional law) enshrining basic rights and duties. Only legislative enactments are considered binding for all in a civil law system. There is little scope for judge-made law in civil law systems, although in practice, judges tend to follow previous judicial decisions. Constitutional and administrative courts in civil law systems can nullify laws and regulations, and their decisions in such cases are binding for all.
While common law systems place great weight on precedent, civil law judges tend to give less weight to judicial precedent. The decisions of a court in a common law system 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.
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Common law and natural law
The UK has what is known as a "common law" system, which means that judges declare the law based on customs and precedents. While the courts are responsible for interpreting the rules rather than creating them, judges effectively establish the law by identifying what it is. This has resulted in the establishment of key features of the UK constitution, such as individual rights and the idea that public authorities are subject to limitations and do not possess arbitrary power.
Common law is deeply rooted in stare decisis, which means "to stand by things decided". It is primarily developed through judicial decisions rather than statutes, with judges determining which precedents to apply in each new case. While common law may incorporate certain statutes, it is largely based on precedent and judicial rulings made in previous similar cases. Common law systems are found in many countries that were formerly colonised by England, Great Britain, or the United Kingdom, such as Australia, the Caribbean, the United States, and Ghana.
In contrast, natural law is considered a timeless and universal moral law founded on nature, reason, or the will of God. It is not dependent on what any judge says but rather on the nature of people. Natural rights, which are a core part of natural law, are rights that everyone has and do not overlap with the rights of others. These include rights such as liberty, freedom of speech, and the right to purchase property or services.
While some view natural law and common law as distinct and unrelated ideas, others argue that they are intertwined. According to James Stoner, common law has been a means by which natural law has retained authority in American life. Stoner further argues that many phrases in the Constitution, such as "ex post facto," were defined by the common law of the era. Additionally, Craig Ford suggests that the natural law tradition can be given new life as a foundation for envisioning the justice that laws should pursue.
In conclusion, while common law and natural law are distinct concepts, they have influenced each other and played significant roles in shaping legal systems and constitutions, particularly in countries with a history of colonisation by common law-practising nations.
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Frequently asked questions
Common law is the body of law developed through judicial decisions and precedent rather than statutes. Judges interpret the rules and create new laws based on these interpretations.
The constitution is spread across multiple documents and sources, and common law is essential for interpreting the original meaning of these various parts.
The meaning of many phrases in the constitution, such as "ex post facto", are defined by the common law of the era.
Common law and constitutional law interact in complex ways. While common law is based on judicial precedent, constitutional law deals with the interpretation and application of the rules and principles outlined in a country's constitution.
Common law forms the basis of the legal systems in Australia, the Caribbean, the United States, and many other English-speaking or Commonwealth countries.
