Keith Mack
Common law is a body of unwritten laws based on legal precedents and court decisions rather than statutes. It is deeply rooted in stare decisis, a Latin phrase that means to stand by things decided, where courts follow precedents established by previous decisions. Common law promotes stability and consistency because everyone involved knows that the outcome will be based on previous caselaw and not on subjective viewpoints. Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and several other countries.
| Characteristics | Values |
|---|---|
| Definition | A "body of law" based on court decisions, also known as judicial precedent, judge-made law, or case law. |
| Basis | Court decisions or caselaw, rather than codes or statutes. |
| Principle | Stare decisis, a Latin phrase that means "to stand by things decided". |
| Jurisdiction | Common law jurisdictions include Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. |
| Adaptability | Addresses situations not originally predicted by lawmakers. |
| Flexibility | Can respond to changes in society and can reinterpret and revise laws without legislative intervention. |
| Efficiency | Court proceedings can be shorter, saving time and money. |
| Stability and Consistency | Promotes stability and consistency by basing decisions on previous caselaw rather than subjective viewpoints. |
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What You'll Learn
Common law is a body of unwritten laws
The common law system is one of the two main legal systems used today, the other being civil law. Civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that outlines procedures for handling claims and punishments for offences. Unlike common law, civil law systems have clear rules for how judges need to rule in specific disputes, and civil law court decisions are not binding in other cases, even if the facts are similar.
Common law, on the other hand, is more flexible and adaptable to unforeseen situations. It promotes stability and consistency because everyone involved knows that the outcome will be based on previous caselaw rather than subjective viewpoints. It also allows for efficiency in court proceedings, as judges only need to follow precedent when making decisions.
The common law system has its origins in the practices of the courts of the English kings following the Norman Conquest. It was then spread to various parts of the world, including North America during the colonial period, and many former British colonies continue to use the common law system today. Approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.
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Common law is based on legal precedent
Common law is a body of law unwritten laws based on legal precedent, also known as case law or judge-made law. It is a system of law that is largely based on precedent—judicial rulings made in previous similar cases. The idea of common law is that there is a "body of law" based on court decisions rather than codes or statutes.
The common law system is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In other words, courts and judges need to follow past decisions and rulings, or caselaw, when dealing with similar cases in the future. For example, if a court makes a decision based on a specific set of facts, then the court is required to follow that decision if a similar issue arises in the future.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must establish the facts. Then, one must locate any relevant statutes and cases. The principles, analogies, and statements made by various courts are then considered to determine how the next court is likely to rule on the facts of the present case. More recent decisions and decisions of higher courts are generally given more weight. Finally, one integrates all the lines drawn and reasons given and applies that law to the facts.
Common law is flexible and adaptable to unforeseen situations. It can respond to changes in society and higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers to act. Common law promotes stability and consistency because everyone involved knows that the outcome will be based on previous caselaw rather than subjective viewpoints. It also allows for efficiency, as judges only need to follow precedent when making decisions, saving time and money.
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Common law is flexible and adaptable
Common law is a body of law based on precedent, or stare decisis, which means "to stand by things decided". This means that common law is flexible and adaptable in several ways.
Firstly, common law is flexible because it is based on judicial decisions and interpretations rather than statutes. This means that it can respond to changes in society and new trends in political, legal, and social philosophy. For example, in a “case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent. This adaptability also means that common law can address situations not originally predicted by lawmakers.
Secondly, common law is flexible because it is not bound by precedent in the same way that civil law is. While judges in a common law system will generally follow previous rulings, they can, with good reason, reinterpret and revise the law without legislative intervention. This means that common law can evolve gradually over time, reducing disruption.
Thirdly, common law is flexible because it does not require lawmakers to pass changes in statutes and codes, which can be a long and difficult process. Instead, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act. This allows common law to adapt more quickly to changing circumstances.
Finally, common law is flexible because it draws from institutionalized opinions and interpretations from judicial authorities and public juries. This means that it can reflect the values and beliefs of society at a given time and can be influenced by changes in public opinion.
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Common law promotes stability and consistency
Common law is a body of law based on judicial decisions and unwritten rules, rather than codes or statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that common law promotes stability and consistency in several ways.
Firstly, common law provides stability and consistency because everyone involved knows that the outcome of a case will be based on previous case law, rather than subjective personal viewpoints. This means that the ultimate decision is based on a history of judicial decisions, or precedents, which form the basis of evaluation for future cases.
Secondly, common law promotes stability and consistency by providing a unified legal system. This means that, unlike civil law, common law establishes consistent outcomes by applying the same standards of interpretation. For example, if a court makes a particular decision based on a specific set of facts, then the court is required to follow that decision if faced with a similar issue in the future.
Thirdly, common law is adaptable and flexible, allowing it to promote stability and consistency in the face of changing circumstances. Common law can address situations not originally predicted by lawmakers and respond to changes in society. For example, higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers to act, and judges can reinterpret and revise the law when there is an extraordinarily good reason to do so. This allows the law to evolve through a series of gradual steps, reducing disruption.
Finally, common law promotes stability and consistency by providing efficiency in the legal process. As judges only need to follow precedent when making decisions, court proceedings can be shorter, saving time and money. This also provides consistency by reducing the potential for bias, as the focus is on applying previous decisions rather than on the subjective views of individual judges.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs between two people who are legally capable of being married and who intend to be married. They live together as a married couple and present themselves as such, but without going through a statutorily defined process. In other words, they do not have a formal wedding ceremony, nor do they have a marriage license or marriage certificate.
The term "common-law marriage" is often used incorrectly in reference to cohabiting couples, regardless of their legal rights or religious implications. These relationships are not legally recognised as marriages, but they may be considered a "domestic partnership", "civil union", or "conjugal union". In Canada, for example, couples in marriage-like relationships may be granted many of the rights and responsibilities of a marriage, but they are not legally considered married. They may be defined as "unmarried spouses" and treated as such for tax and financial purposes.
In states that do recognise common-law marriage, couples may have the same rights as those who went through a formal marriage process. There is no statutory requirement for the length of time a couple needs to live together, but a common misconception is that cohabiting for ten years or more constitutes a common-law marriage.
Common-law marriage should not be confused with the term "common law", which is a legal system used throughout the world, alongside civil law. Common law is based on judicial decisions and legal precedent, whereas civil law relies primarily on codes and statutes.
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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 or judge-made law.
Civil law is a comprehensive, codified set of legal statutes created by legislators. Civil law systems have clear rules for how judges need to rule for specific disputes. Common law, on the other hand, is more flexible and can address situations not originally predicted by lawmakers.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts, then locate any relevant statutes and cases, and then extract the principles, analogies, and statements by various courts. Finally, one integrates all the lines drawn and reasons given and determines "what the law is", and then applies that law to the facts.
