Keith Mack
English common law, which originated in the early Middle Ages, forms the basis of many modern legal systems, including those of the United States, Canada, Australia, New Zealand, and various former British colonies. It is a system of unwritten laws based on legal precedents, where judges apply both statutory law and established principles derived from previous decisions. This principle, known as stare decisis, or the doctrine of binding precedent, guides judges in determining which precedents apply to a particular case. While common law originally developed through judicial decisions and local customs, it can now be amended or repealed by Parliament, with statutory legislation taking precedence.
| Characteristics | Values |
|---|---|
| Basis | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| History | Common law originated in the early Middle Ages in the King's Court (Curia Regis). |
| Influence | Common law has been exported to many parts of the world, including the British Empire, the US, and Commonwealth countries. |
| Flexibility | Common law allows for interpretation and can adapt to new situations not contemplated by the legislature. |
| Sources | Common law draws from judicial decisions, custom, usage, and institutionalized opinions and interpretations. |
| Equity | Equity, developed as a separate system, provides discretionary remedies to address the inflexibility of common law. |
| Relationship with Civil Law | Common law contrasts with civil law, which is a comprehensive, codified set of legal statutes created by legislators. |
| Precedent | Common law places a strong emphasis on precedent, while civil law judges tend to give less weight to judicial precedent. |
| Jurisdiction | Each jurisdiction has its own laws and courts, but laws from one jurisdiction may apply similarly in others. |
| Amendment | Common law can be amended or repealed by Parliament and superseded by legislation. |
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What You'll Learn
Influence on American law
English common law has had a significant influence on American law, even after the American Revolutionary War. The United States' legal system is fashioned after the British legal system, and many fundamental principles of injury law or "tort law" originate from England. The presumption of innocence until proven guilty, which is a fundamental principle of the US criminal justice system, is also derived from British law.
The US has also adopted the British principle of stare decisis, which is a key aspect of common law. This principle ensures uniformity and consistency in the legal system. American jury trials are also modelled after British jury trials, with the same evidentiary standard of "beyond a reasonable doubt" for criminal cases and "preponderance of evidence" for civil cases.
English common law has also influenced specific American legal traditions and principles. For example, the res ipsa loquitur doctrine, which was first applied in the US in Byrne v Boadle (1863), is believed to have originated from English common law.
In addition, the US has a common law system, similar to England, which places great weight on precedent. This means that previous judicial decisions are used as a source of law and are applied to new cases with similar fact patterns. The influence of English common law in the US is not surprising, given that English law was imposed on the colonists during the colonial period.
Furthermore, the structure of the American legal system also has roots in English common law. Originally, the British monarch stood at the top of the legal system, controlling the appointment of judges. While the US does not have a monarch, the appointment process for judges now involves multiple parties, including senior politicians and current judges, which may be a reflection of the evolution of the legal system from its English common law origins.
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The principle of stare decisis
Stare decisis holds that courts and judges should honour "precedent", or the decisions, rulings, and opinions from prior cases. Respect for precedents gives the law consistency and makes interpretations of the law more predictable and less seemingly random. There are two types of stare decisis: vertical and horizontal. Vertical stare decisis dictates that the decisions of higher courts take precedence over the decisions of lower courts. This is deeply entrenched in the American legal system and is part of what makes the Supreme Court "supreme". On the other hand, horizontal stare decisis holds that prior decisions made by courts at a particular appellate level should provide precedent for cases heard by courts of the same appellate level.
While stare decisis is a useful principle, it is not without its limitations. For example, in cases where following precedent may lead to unjust outcomes, judges may offer reasons or legal nuances to avoid following precedential decisions or to overturn prior rulings. As society and its beliefs change, there must be some logical variation in the approach to the application of the law.
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Common law vs civil law
English common law has historically been the foundation and prime source of English law. Common law is made by sitting judges who apply statutory law and established principles derived from the reasoning from earlier decisions. Common law is based on the principle of stare decisis, which means that past decisions are legally binding for similar cases in the future.
Common law systems place great weight on precedent and past judicial decisions. Civil law systems, on the other hand, are more prescriptive and rely on legal codes as their primary source of law. Civil law judges tend to give less weight to precedent and past judicial decisions and more weight to the law codes. For example, the Napoleonic Code expressly forbade French judges from pronouncing general principles of law. Civil law is concerned with tort, contract, families, companies, etc. Civil law courts provide remedies such as damages or declarations to a party with an enforceable claim against another party.
Common law systems trace their history to English common law, while civil law systems trace their history to the Napoleonic Code and further back to the Corpus Juris Civilis of Roman law. Common law systems are typically found in countries that were former British colonies or protectorates, such as the United States, Canada, Ghana, and Nicaragua. English law was also exported to most parts of the British Empire, influencing the legal traditions of many countries, including the United States and India.
Civil law is the most common legal system in the world, practiced in about 150 countries. It is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Louisiana is the only US state whose private civil law is based on French and Spanish codes rather than English common law.
In summary, the key difference between common law and civil law is the role of written decisions and precedent. Common law systems rely heavily on precedent and past judicial decisions, while civil law systems prioritize legal codes and give less weight to precedent.
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The role of judges
The English common law system, which originated in the early Middle Ages in the King's Court, is based on the principle of stare decisis, or the doctrine of binding precedent. This means that judges are responsible for applying the principles and precedents established in previous cases decided by higher courts, also known as "courts of record". Judges play a crucial role in interpreting and applying the law within this system.
In the early centuries of English common law, justices and judges were responsible for adapting the system of writs to meet everyday needs, using a combination of precedent and common sense to create a coherent body of law. For example, the Law Merchant, derived from the "Pie-Powder" Courts, indicates the establishment of ad hoc marketplace courts. Judges are tasked with interpreting and applying the law in individual cases, drawing from institutionalised opinions, interpretations, and precedents established by judicial authorities and public juries.
Judges also play a role in interpreting and clarifying ambiguous statutes. While Parliament has the power to legislate, the courts have the exclusive authority to interpret the true meaning of statutes using statutory interpretation principles. This interpretation process allows judges to provide guidance and clarity on how the law should be applied in practice.
In addition to interpreting and applying the law, judges in the English common law system may also contribute to the development of new legal principles and doctrines. Over time, judges' decisions and interpretations can establish new precedents that guide future cases and shape the evolution of the law. This process allows the law to adapt to new situations and changing societal needs.
Furthermore, judges are responsible for administering justice and ensuring fair and impartial decision-making within their jurisdictions. They oversee court proceedings, evaluate evidence, and apply the relevant laws and precedents to reach a conclusion in each case. Judges are expected to act independently and impartially, ensuring that the rights of all parties involved are respected and protected.
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The influence of Roman law
English common law has historically been the foundation and prime source of English law. Civil law, on the other hand, is founded on the ideas of Roman law. Roman law refers to the legal institutions and laws of ancient Rome. It has influenced the development of law in most Western civilisations and parts of the East.
Roman law was a highly sophisticated and influential legal system during the first 250 years of the current era, known as the "classical period of Roman law". It was characterised by three branches: the Assemblies, the Senate, and the Consuls. The Assemblies passed laws and made declarations of war, the Senate controlled the treasury, and the Consuls held the highest juridical power. Jurists played a crucial role in giving legal opinions, advising magistrates, and helping draft edicts.
The English common law system, exported to British colonies, has influenced the legal traditions and principles of many countries, including the United States and Ghana. While civil law systems, such as those in continental Europe, trace their history back to the Napoleonic Code and the Corpus Juris Civilis of Roman law, common law systems emphasise the role of precedent and stare decisis.
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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.
The principle of common law is to establish consistent outcomes by applying the same standards of interpretation. It draws from institutionalised opinions and interpretations from judicial authorities and public juries.
English common law 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 historically administered in the king's courts and was called "common" because it applied equally across the whole country.
