Gavin Howe
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It originated in the practices of the courts of the English kings following the Norman Conquest in 1066 and has since spread to various parts of the world, including North America, Australia, Canada, and India. To learn more about common law, one can refer to classic texts such as The Common Law by Justice Oliver Wendell Holmes Jr., which offers an authoritative perspective on American common law, or The Nature and Sources of the Law by law professor John Chipman Gray, which provides an examination of common law and is commonly read in U.S. law schools. Additionally, Restatements of various subject areas, edited by the American Law Institute, collect and cite common law and are often referenced by American legal professionals.
| Characteristics | Values |
|---|---|
| Common law definition | A body of unwritten laws based on legal precedents established by the courts. |
| Common law countries | Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and previously the U.S. |
| Common law history | Evolved from British tradition during the 17th and 18th centuries. |
| Common law sources | Plea rolls and Year Books from the Middle Ages; stare decisis (precedent); judicial rulings in previous similar cases. |
| Common law application | Influences decision-making in unusual cases without existing statutes or written rules; establishes consistent outcomes by applying the same standards of interpretation. |
| Common law books | The Common Law by Oliver Wendell Holmes, Jr., a former Associate Justice of the Supreme Court. |
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What You'll Learn
Common law vs civil law
Common law and civil law are the two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England and is practised in the United States, the United Kingdom, and other former British colonies or protectorates. Common law relies heavily on judicial precedent and is less prescriptive than civil law. It recognises prior court decisions as legally binding precedent and gives judges the power to make laws in certain areas. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries, with the goal of establishing consistent outcomes by applying the same standards of interpretation.
Civil law, on the other hand, is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). It is the world's most common legal system, practised in about 150 countries, including most of Europe, as well as Louisiana in the United States. Unlike common law, civil law is characterised by its reliance on legal codes that function as the primary source of law. Civil law is more prescriptive than common law, with civil law judges tending to give less weight to judicial precedent. Civil codes are designed to create order and reduce bias, providing clear definitions of the cases that can be brought to court, the procedures for handling claims, and the punishments for offences.
One notable difference between the two systems is the role of written decisions and precedent as a source of law. While common law places great weight on precedent, with decisions of the highest court generally only able to be overturned by that same court or through legislation, civil law judges have more flexibility to interpret and deviate from precedent. Another difference lies in the appointment of judges: common law judges are typically appointed after successful legal careers, while civil law jurisdictions tend to appoint recent university graduates.
In terms of contracts, common law requires all the terms governing the relationship between the parties to be set out in the contract itself, while civil law implies certain provisions into the contract, allowing for ambiguities to be resolved by operation of law. In the area of infrastructure, civil law jurisdictions refer to well-defined legal concepts, which may include specific legislation to limit the scope of restrictions or to address particular sectors.
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Common law jurisdictions
Common law, also known as case law or judge-made 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. Common laws sometimes prove the inspiration for new legislation to be enacted. Common law is deeply rooted in stare decisis, a Latin phrase that roughly means "to stand by things decided". In practice, stare decisis means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later.
Many countries continue to rely on common law legal systems, including the United States, which originally based its common law rules on English common law. Every US state except Louisiana has a common law legal system. Common law is also practiced in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. Many former colonies retain the common law system today. These common law systems are legal systems that give great weight to judicial precedent and the style of reasoning inherited from the English legal system.
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, one must locate any relevant statutes and cases. Then, one must extract the principles, analogies, and statements by various courts to determine how the next court is likely to rule on the facts of the present case. Finally, one integrates all the lines drawn and reasons given, determines "what the law is", and applies that law to the facts.
The two main legal systems used throughout the world are common law systems and civil law systems. Civil law is a comprehensive, codified set of legal statutes created by legislators. A civil system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case.
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Stare decisis
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.
For example, in the case of Salman v. the United States, the doctrine of stare decisis was applied to a situation involving insider trading. Bassam Salman gained access to insider knowledge through his brother-in-law, who worked as an investment banker for Citigroup, and used it to make an estimated $1.5 million. The court followed the precedent set by Dirks v. SEC, which established that a fiduciary obligation is broken when secret information is offered as a gift. As a result, Salman was found accountable for insider trading.
While stare decisis promotes consistency and predictability in the law, it is not an absolute rule. Courts and judges may choose to depart from precedent in certain situations, particularly when prior decisions are deemed "unworkable or badly reasoned". For example, in Brown v. Board of Education, the U.S. Supreme Court directly overturned the precedent set by Plessy v. Ferguson, explicitly renouncing the earlier decision and refusing to apply stare decisis. This demonstrates that stare decisis is flexible and can be adapted to changing circumstances and societal norms.
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Judicial precedent
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is practised in several countries, including the United States, the United Kingdom, Canada, Australia, and India.
When researching common law, one key aspect to focus on is judicial precedent, also known as stare decisis, which forms the basis of evaluation for future cases. This means that judges are bound by the decisions and interpretations of previous similar cases, creating consistency in the application of the law. Judges are responsible for determining which precedents to apply to a new case, and in situations where there is no applicable precedent, they have the power to establish new precedent.
The development of judicial precedent in common law can be traced back to the practices of King Henry II, who sent judges to resolve disputes across the country. These judges would then return to London and discuss their cases and decisions with their peers, recording and filing their rulings. Over time, a rule known as stare decisis emerged, whereby judges were required to follow the decisions and interpretations of their predecessors in cases with similar facts.
To understand the evolution and current application of judicial precedent in common law, there are several sources that can be consulted. One notable work is "The Common Law" by Oliver Wendell Holmes, Jr., a former Associate Justice of the Supreme Court of the United States. Written in 1881, this book provides an authoritative and informative perspective on American common law, covering topics such as torts, property, contracts, and crime. It is considered a classic and a must-read for anyone seeking to understand the historical development of American common law.
In addition to theoretical works, it is essential to refer to case law and legal databases to understand how judicial precedent operates in practice. Online resources, such as the UK National Archives, provide access to historical court records, including plea rolls and Year Books, which can offer valuable insights into the development of common law and judicial precedent over time.
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Common law marriage
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law influences decision-making in unusual cases where no clear outcome can be determined based on existing statutes or written rules.
Common-law marriage, also known as non-ceremonial marriage, is a legal framework that allows couples to be considered married without formally registering their union. It is a marriage that results from an agreement between two legally capable individuals to consider themselves married, followed by cohabitation. While it is not common in the U.S., some states have statutes or allow common-law marriage under certain requirements. These requirements may include cohabitation for a specific period, such as ten years, but there is no standard statutory requirement.
In Canada, some provinces may grant couples in marriage-like relationships many rights and responsibilities similar to married spouses, but they are not legally considered married. They may be defined as "unmarried spouses" and treated similarly to married couples for specific purposes like taxes and financial claims.
The term "common-law marriage" is often used incorrectly in informal contexts to describe various types of cohabiting couple relationships, regardless of their legal status. This misuse of the term has led to confusion, with many people incorrectly believing that cohabitants have the same rights as married couples.
Common-law marriage, as a legal concept, specifically refers to a marriage that is legally recognized without a formal ceremony, license, or certificate. It is important to distinguish this legal definition from the colloquial use of the term, which often carries no legal weight.
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Frequently asked questions
Common 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.
Common law is practiced in the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
You can read *The Common Law* by Oliver Wendell Holmes Jr., which is about common law in the United States.
