Gavin Howe
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is deeply rooted in stare decisis, a Latin term that means to stand by things decided, where courts follow precedents established by previous decisions. It originated in the practices of the courts of English kings in the centuries following the Norman Conquest in 1066. 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. Common law systems are employed by the greatest number of people compared to any single civil law system, and countries that operate under a dual system of both common and civil law include the US and the UK.
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What You'll Learn
Common law in the US
Common law, also known as case 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", 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. However, 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.
In the United States, common law originated from medieval England, and it is still very much in effect today. The US operates under a dual system of both common and civil law. The courts, for example, operate under common law. The concept of common-law marriage, which grants similar rights to married couples to those that are not officially married, is one example of common law in action today.
American courts originally fashioned common law rules based on English common law until the American legal system was sufficiently mature to create common law rules either from direct precedent or by analogy to comparable areas of decided law. While most common law is found at the state level, there is a limited body of federal common law—that is, rules created and applied by federal courts in the absence of any controlling federal statute.
At the state level, legislatures often subsequently codify common law rules from the courts of their state, either to give the rule the permanence afforded by a statute, to modify it, or to replace the outcome entirely with legislation. For example, in 2018, the California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court articulated a three-part test for determining whether California workers were independent contractors or employees. The California Legislature responded by creating a new section of the Labor Code, which codified and expanded on the Dynamex holding, and went into effect on January 1, 2020.
It is important to note that none of the common law systems in the United States are technically pure common law systems. The US and its many common law states have countless codified statutes that courts must consider. However, regardless of whether a court is using common law or applying a statute, one constant in US common law legal systems is the principle of stare decisis.
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Common law in the UK
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. When resolving a similar case, courts typically align their reasoning with the precedent set in the previous decision. However, 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 originated in England in the early Middle Ages, in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. It was common to all the king's courts across England and established a unified legal system, gradually supplanting local folk courts and manorial courts. The English legal system spread across the British Isles, first to Wales, then to Ireland and overseas colonies, and later to most of the member states of the Commonwealth.
English law, the common law legal system of England and Wales, comprises mainly criminal law and civil law, each branch having its own courts and procedures. The judiciary is independent, and legal principles like fairness, equality before the law, and the right to a fair trial are foundational to the system. Common law has historically been the foundation and primary source of English law, but the most authoritative law today is statutory legislation, comprising Acts of Parliament, regulations, and by-laws. In the absence of any statutory law, the common law, with its principle of stare decisis, forms the residual source of law, based on judicial decisions, custom, and usage.
English criminal law derives its main principles from common law. The main elements of a crime are the actus reus (doing something which is criminally prohibited) and the mens rea (having the requisite criminal state of mind, usually intention or recklessness). Murder remains a common law crime rather than a statutory offence. While most of its criminal law has been codified from its common law origins, some notable defences to crimes include self-defence, intention, necessity, and duress.
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Common law in the British Commonwealth
The common law system, which originated in England in the early Middle Ages, has spread to various parts of the world, including many countries in the British Commonwealth.
Origins of Common Law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in the practices of the English king's courts following the Norman Conquest in 1066, establishing a unified legal system across England and Wales, Ireland, and later, the British colonies.
The British Commonwealth, now referred to as the Commonwealth of Nations, consists of countries that were formerly colonized by England, Great Britain, or the United Kingdom. As a result of this colonial history, many of these countries adopted the common law system, which forms the basis of their legal systems today.
Countries in the British Commonwealth that follow common law include Australia (federally and in each state and territory), Caribbean jurisdictions such as Antigua and Barbuda, Barbados, 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.
Exceptions
However, it is important to note that not all countries in the British Commonwealth follow common law. Notable exceptions include Scotland, which has a mixed or "bijuridicial" system, and Malta, which follows a different legal tradition.
The Role of the Commonwealth Framework
The British Commonwealth operates within a framework that enables citizens to participate in the creation of Commonwealth Law, reflecting the will of the people and establishing a self-governing society. This framework consists of primary and secondary legislation, with common law being classified as primary legislation made by the Commonwealth judiciary.
In summary, the common law system, which originated in England, has been adopted by many countries in the British Commonwealth, shaping their legal systems and contributing to the global influence of this legal tradition.
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Common law in England
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is deeply rooted in stare decisis ("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. However, 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.
The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 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 role 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 followed, during which the mainly Norman conquerors introduced change. Land was allocated to the king's feudal vassals, many of whom had joined the conquest with this reward in mind. Serious wrongs were now regarded mainly as public crimes rather than personal matters, and the perpetrators were punished by death and forfeiture of property.
In the early Middle Ages, the English common law originated in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. It did not originally consist of substantive rights but rather of procedural remedies. The English common law 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 overseas colonies, later continued by the British Empire.
In the Late Medieval Period, English law was codified through judge-made laws and precedents created in the proceedings of Royal justices in the Circuit courts. This body of legal scholarship was first published at the end of the 19th century in The History of English Law Before the Time of Edward I, in which Pollock and Maitland expanded the work of Coke (17th century) and Blackstone (18th century). Specifically, the law developed in England's Court of Common Pleas and other common-law courts, which became the law of the colonies settled initially under the Crown of England or, later, the United Kingdom.
In the 12th and 13th centuries, there were great strides towards the development of common law, marked by the Bologna revival of Roman law, which reached England in the 12th century. The first treatise on the common law of England, Tractatus de Legibus et Consuetudinibus Regni Angliae (A Treatise on the Laws and Customs of the Kingdom of England), was written between 1187 and 1189 by Ranulf Glanvil, a prominent lawyer and advisor to King Henry II. The reign of Henry II saw many legal reforms, such as the consolidation of the courts in England and the first forms of jury trials, which are reflected in Glanvil's treatise.
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Common law in English colonies
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. It was common to all the king's courts across England and established a unified legal system, gradually replacing local folk and manorial courts.
England spread the English legal system across the British Isles, first to Wales, then to Ireland, and later to overseas colonies, which was continued by the British Empire. Many former colonies, including the United States, retain the common law system today. When a former British colony becomes independent, it usually adopts a reception statute, which means the new nation typically continues to follow pre-independence English common law and precedent unless explicitly rejected by the new legislative body or constitution.
The United States, for example, operates under a dual system of both common and civil law. Common law is deeply rooted in stare decisis, where courts follow precedents established by previous decisions. While common law systems place great weight on precedent, they also allow for some freedom of interpretation, and judges are empowered to resolve issues and establish new precedents when no prior precedent exists.
Common law is the basis of the legal systems of many countries that were once English, British, or UK colonies, including Australia, Canada, and many Caribbean nations. Approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law.
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Frequently asked questions
Common law, also known as case 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 originated in England after the Norman Conquest of 1066. It was spread across the British Isles and to overseas colonies, and today, the US and UK operate under a dual system of both common and civil law.
Common law promotes stability and consistency as it is based on previous caselaw, rather than subjective viewpoints. It also allows for adaptability to unforeseen situations and is efficient as court proceedings can be shorter.
One example of common law in action is the concept of common-law marriage, which grants similar rights to married couples to those who meet certain conditions without being officially married.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is used in Continental Europe, Mexico, most of Central and South America, and some African countries. In contrast, common law systems place greater weight on precedent and are based on caselaw.
