Anaya Nolan
Common law, also known as judicial precedent, judge-made law, or case law, is a body of law that is primarily developed through judicial decisions instead of statutes. It originated in England during the Middle Ages, after the Norman Conquest of 1066, and has been the foundation of legal systems in several countries, including the US, Canada, India, and Australia. Common law is deeply rooted in the principle of stare decisis, which means that judges are bound by the decisions and interpretations of previous similar cases. This promotes stability, consistency, and efficiency in the legal system.
| Characteristics | Values |
|---|---|
| Origin | England, during the Middle Ages, after the Norman Conquest of 1066 |
| Current usage | Several countries, including the U.S., Canada, India, and Australia, rely heavily on common law |
| Definition | A "body of law" based on court decisions and previous precedents, rather than codes or statutes |
| Latin name | Stare decisis, meaning "to stand by things decided" |
| Benefits | Stability, consistency, and efficiency |
| Comparison with civil law | In civil law, court decisions are not binding in other cases, even with similar facts |
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What You'll Learn
Common law's roots
The common law system as we know it today originated in England during the Middle Ages, in the centuries following the Norman Conquest in 1066. The common law was so named because it was common to all the king's courts across England.
Before the Norman Conquest, much of England's legal business was conducted in local folk courts in its various shires and hundreds. There were also urban borough and merchant fair courts, as well as manorial and seigniorial courts held by large landholders as needed. The Norman Conquest did not immediately abolish Anglo-Saxon law, but it did bring about change. For example, land was granted to the king's feudal vassals, and serious wrongs were now considered public crimes rather than personal matters, punishable by death and property forfeiture.
The English common law system has influenced the legal systems of many countries, including those of the United States and most Commonwealth countries. Several countries continue to rely heavily on common law when resolving legal disputes, including the US, Canada, India, and Australia.
The common law is primarily based on precedent, or stare decisis, a Latin term meaning "to stand by things decided". This means that judicial decisions in previous similar cases are used as a basis for resolving new cases. Judges are required to follow the interpretation and principles established by earlier judges in comparable cases. This differs from civil law systems, which rely primarily on codes and statutes.
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Common law vs civil law
Common law, also known as judge-made law, case law, or judicial precedent, is a body of law that is derived from judicial decisions instead of statutes. It originated in England during the Middle Ages, following the Norman Conquest in 1066, and is common to all the king's courts across England. Common law 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 is less prescriptive than civil law, and generally, everything is permitted that is not expressly prohibited by law.
Civil law, on the other hand, is a legal system rooted in the Roman Empire, with modern civil codes appearing in the 19th century, such as France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. It is the most common legal system in the world, practiced in about 150 countries. Civil law systems rely primarily on codes and statutes, and centre around a comprehensive code of statutes that outlines procedures and punishments. Civil law is more prescriptive than common law, and there are a number of provisions implied in a contract under this system.
The two systems differ in their treatment of judicial precedent. While common law systems heavily rely on judicial precedent and previous case rulings to guide their decisions, civil law judges tend to give less weight to precedent and more to legal codes as the primary source of law. In civil law, court decisions are not binding in other cases, even if the facts are similar, and there is no doctrine of stare decisis in the French civil law tradition.
Many countries today have adopted either a common law or civil law system, or a combination of both. Common law is prevalent in former British colonies or protectorates, including the United States, Canada, India, and Australia. Civil law, with its roots in Roman and Napoleonic law, is practiced in much of mainland Europe and its former colonies, such as Louisiana in the United States.
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Stare decisis
The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. For example, if the Seventh Circuit Court of Appeals adheres to the ruling of a previous Seventh Circuit Court of Appeals case, that would be horizontal stare decisis. Vertical stare decisis, on the other hand, occurs when a court applies precedent from a higher court. For instance, if the Federal District Court for the Southern District of New York adhered to a previous ruling by the Second Circuit, that would be vertical stare decisis.
The doctrine of stare decisis is important as it lessens the need for subsequent litigation and saves the time and energy of the judiciary by preventing them from having to continually decide the same legal question or issue if it has already been decided in another case. It also promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Stare decisis assures that the law won't change randomly and allows society to assume that fundamental beliefs are based on the law rather than people's preferences.
However, stare decisis is not an "inexorable command". While courts seldom overrule precedent, the US Supreme Court has explained that stare decisis may not be followed if prior decisions are "unworkable or are badly reasoned". In some cases, judges may offer reasons or legal nuances to avoid following precedential decisions or to overturn prior rulings, especially if they believe that adhering to precedent may lead to unjust outcomes.
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Influence on other countries
Common law, also known as judicial precedent, judge-made law, or case law, is a body of law based on judicial decisions rather than statutes. It originated in England in the centuries following the Norman Conquest in 1066 and was common to all the king's courts across the country. Common law is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided", where judges are bound to follow the decisions and interpretations of previous similar cases.
The common law system has influenced the legal systems of many countries, especially in the United States and most Commonwealth countries. American courts initially based their common law rules on English common law, and later created their own rules through direct precedent or by analogy to comparable areas of decided law. The United States Supreme Court has also cited stare decisis in several cases, including the 2019 case of Gamble v. United States. Additionally, Restatements of various subject matter areas, edited by the American Law Institute, collect the common law and are considered highly persuasive authority by American courts and lawyers.
The influence of common law can also be seen in the legal systems of Canada, India, and Australia, which continue to rely heavily on common law when resolving legal disputes. For example, in the 2018 California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, a three-part test was articulated to determine the employment status of California workers. This decision was later codified and expanded upon by the California Legislature in the state's Labor Code.
In contrast, civil law systems, which originated in mainland Europe, rely primarily on codes and statutes. In these systems, court decisions are not binding in other cases, even if the facts are similar. For example, in French civil law, there is no doctrine of stare decisis, and civil law codes must be constantly changed as court decisions are not binding and judges lack the authority to act without a statute. However, it is important to note that some countries with civil law systems, such as Armenia, may adopt legal codes that introduce issues that judges are not empowered to adjudicate under the established principles of common law.
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Common law in the US
Common law, also known as judicial precedent, judge-made law, or case law, is a body of law primarily developed through judicial decisions instead of statutes. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law is based on the principle that courts and judges should follow previous rulings and decisions when dealing with similar cases. This promotes stability and consistency in the legal system, as outcomes are based on previous case law rather than subjective viewpoints.
The common law system as we know it today originated in England during the Middle Ages, specifically after the Norman Conquest of 1066. It was common to all the king's courts across England and evolved from earlier Anglo-Saxon traditions, such as the jury, ordeals, the penalty of outlawry, and writs. King Henry II played a significant role in the development of common law by sending judges to hear disputes throughout the country and record their decisions, which then became precedents for future cases.
In the United States, the common law system was influenced by English common law. American courts initially based their common law rules on English precedents until the American legal system matured and began creating its own common law rules through direct precedent or by analogy to comparable areas of decided law. While most common law in the US is found at the state level, there is also a limited body of federal common law created and applied by federal courts in the absence of controlling federal statutes.
The Restatements of various subject matter areas, edited by the American Law Institute, collect the common law for these areas and are often cited by American courts and lawyers for propositions of uncodified common law. At the state level, legislatures may subsequently codify common law rules to give them the force of statutes, modify them, or replace them with new legislation. This interplay between common law and statutory law allows for the evolution of the legal system to meet the changing needs of society.
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Frequently asked questions
Common law is a body of law based on court decisions rather than codes or statutes. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided".
Common law originated in England in the centuries following the Norman Conquest in 1066. It was common to all the king's courts across England.
Common law systems rely on caselaw and legal precedent to guide their decisions. Judges need to follow earlier rulings when dealing with similar cases.
Several countries continue to rely heavily on common law, including the US, Canada, India, and Australia.
