Cecily Zamora
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is adopted by legislatures to address situations not originally predicted by lawmakers, as it draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law originated in England during the Middle Ages and is still very much in effect in the US and elsewhere today, including in Australia, Canada, India, and the United Kingdom.
| Characteristics | Values |
|---|---|
| Basis | Common law, also known as case law, is based on legal precedents established by the courts. |
| Adaptability | Common law is adaptable to unforeseen situations not contemplated by the legislature at the time of writing. |
| Flexibility | Common law is flexible as it can respond to changes in society and does not require lawmakers to pass changes in statutes and codes. |
| Sources | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
| Consistency | Common law aims to establish consistent outcomes by applying the same standards of interpretation. |
| Jurisdiction | Common law is practised in the US, UK, Australia, Canada, Hong Kong, India, and New Zealand. |
| Judicial Decisions | Judicial decisions are binding, and decisions of higher courts become a binding precedent for lower courts. |
| Freedom of Contract | Common law provides extensive freedom of contract, with few provisions implied into the contract by law. |
| Interpretation | Common law allows for some freedom of interpretation by judges. |
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What You'll Learn
Common law is adaptable to unforeseen situations
Common law, also known as case 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 deeply rooted in stare decisis, a Latin term that means "to stand by things decided". In a common law jurisdiction, determining "what the law is" in a given situation involves several stages of research and analysis. This includes ascertaining the facts, locating relevant statutes and cases, extracting principles and analogies from court decisions, and integrating this information to determine the applicable law. Common law is more malleable than statutory law, as it evolves through a series of gradual steps, allowing the law to change substantially over time without sharp breaks and reducing disruptive effects.
The value of a common-law system is its adaptability to unforeseen situations. While legislators cannot predict all the scenarios in which laws will need to be applied, common law allows courts to address situations not originally contemplated by lawmakers. For example, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to establish new precedents. Common law is also flexible, as higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act. This flexibility enables common law to respond to changes in society and evolve gradually, promoting stability and consistency in the legal system.
The evolution of technology and its increasing presence in our lives highlight the importance of common law's ability to adapt and interpret the legal code. Common law's flexibility can be advantageous in situations where civil law may fall short. For instance, civil law can be clearer when the legislature has addressed the precise set of facts applicable to a specific situation. In such cases, civil law statutes tend to be more detailed, but this can also make them more challenging to read and understand.
Common law's adaptability is particularly evident in countries with a history of British colonisation or protection, such as Ghana. The laws of Ghana are largely modified versions of imported laws that continuously adapt to the country's changing socio-economic and political realities. This showcases how common law can be dynamic and responsive to the evolving needs of a nation.
In summary, common law's adaptability to unforeseen situations is a significant advantage. It empowers judges to address novel scenarios, promotes stability and consistency, and enables the legal system to evolve gradually in response to societal changes. As technology and societal complexities advance, the flexibility and interpretative nature of common law will become increasingly valuable.
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Common law is flexible
Secondly, common law is flexible in that it allows for interpretation. It is derived from judicial precedents, customs, and other decided legal proceedings, and it draws from institutionalized opinions and interpretations from judicial authorities and public juries. This means that common law can be adapted to situations that were not contemplated at the time by the legislature.
Thirdly, common law is flexible because it is constantly changing. As there are constantly new situations arising that need to be distinguished, as well as entirely new situations where there is no legislation or precedent, common law is adaptable and responsive to real-life situations.
Additionally, common law is flexible in that it allows for freedom of contract. In a common law system, few provisions are implied into a contract by law, so everything is permitted unless expressly prohibited. This provides a great deal of flexibility and adaptability in contractual matters.
Lastly, the courts and judges applying common law can be more flexible in their approach towards cases. As they are not elected, they do not have ties to a particular political party and are therefore able to make decisions without worrying about re-election or popularity with the majority. This allows them to be more agile and responsive to the unique circumstances of each case.
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Common law is based on precedent
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that originated in England during the Middle Ages and is still very much in effect in the US and other countries today. Common law is based on the principle of stare decisis, which means "to stand by things decided". In practice, this means that judges are required to follow the decisions and rulings of previous cases when dealing with similar situations. This ensures consistency and stability in the legal system.
The value of a common-law system lies in its adaptability and flexibility. It allows for the law to be interpreted and applied to situations that were not contemplated by the legislature at the time the original law was created. This is especially important as technology evolves and plays a greater role in our lives. Common law enables judges to address these new scenarios without having to wait for new legislation to be passed.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, the facts of the case must be ascertained. Then, any relevant statutes, cases, and principles must be located and examined. The courts will then consider the analogies and statements made by various other courts to predict how the next court is likely to rule on the current case. Finally, all the information is integrated to determine the appropriate course of action.
Common law is particularly useful in litigation of commercial disputes arising out of unpredictable torts. Certain jurisdictions, such as London for admiralty cases, attract a high fraction of these cases due to the predictability afforded by the depth of decided cases. However, civil law can be clearer than common law when the legislature has specifically addressed the precise set of facts applicable to a particular situation. This is because civil law statutes are more detailed, although they tend to be more difficult to read as a result.
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Common law is derived from medieval England
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England, specifically after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a set of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, and the church played a significant role in governance. However, the Norman Conquest brought about a transition from Anglo-Saxon law to a period of colonial rule, during which land was allocated to feudal vassals of the king. This marked the beginning of the development of common law in England.
In medieval England, common law was influenced by the practices of the courts. King Henry II played a pivotal role in this process by sending judges from his Curia Regis to hear disputes across the country. These judges would resolve disputes based on their interpretation of customs and then return to London to discuss their cases and decisions with other judges. Over time, a principle known as stare decisis or precedent emerged, whereby judges were bound to follow the decisions and interpretations of earlier judges in similar cases.
The early development of case law in the 13th century is attributed to Bracton's "On the Laws and Customs of England," leading to the publication of the first extant Year Book in 1268. These Year Books served as law reports of medieval England, documenting the evolution of legal doctrines, concepts, and methods over centuries. Common law was further influenced by the spread of the English legal system to Wales, Ireland, and later to colonies, with many former colonies retaining the common law system today.
Common law places emphasis on precedent while allowing room for interpretation. It values adaptability, ensuring that the law can address situations not contemplated by the legislature at the time. This flexibility becomes increasingly important as technology advances and its presence in our lives grows. Common law draws from institutionalized opinions and interpretations of judicial authorities and public juries, aiming to establish consistent outcomes through uniform standards of interpretation.
Today, common law is practiced in various countries, including the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand. It coexists with civil law in some jurisdictions, offering a dual system that provides stability and consistency in legal frameworks.
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Common law is not the only legal system
Common law, also known as case law, is a system of law that is derived from judicial decisions and not statutes or constitutions. It is a body of unwritten laws based on legal precedents established by the courts. Common law originated in England and was influenced by Anglo-Saxon law and, to a lesser extent, the Norman conquest of England, which introduced legal concepts from Norman law. Today, common law is practised in various jurisdictions around the world, including Australia, Canada, India, New Zealand, the United Kingdom, and the United States.
However, common law is not the only legal system in existence. There are two main types of legal systems in the world: common law and civil law. Civil law, also known as Roman law, is the most widespread legal system by landmass and population. It is a comprehensive, codified set of legal statutes created by legislators, and it clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishments for offences. Civil law systems derive from the Roman Empire, particularly the Corpus Juris Civilis issued by Emperor Justinian in AD 529, which brought together the law of the Byzantine Empire into codified documents. Civil law was also influenced by religious laws such as Canon law and Islamic law.
While common law emphasises precedent and allows some freedom for interpretation, civil law is generally more prescriptive. In a civil law system, there are typically separate constitutional, administrative, and civil courts that interpret and apply the law in accordance with specific codes. Civil law systems tend to have more provisions implied into contracts, and less importance is placed on setting out all the terms governing the relationship between the parties in the contract itself. This often results in shorter contracts compared to those in common law countries.
In addition to common law and civil law, there are also religious legal systems such as Sharia in Islam, Halakha in Judaism, and Canon law in some Christian groups. These religious laws may be used as the basis for a country's legal system or as individual moral guidance. For example, in the European Union, the Court of Justice adopts a mixed system that combines civil law with an attachment to the importance of case law.
Overall, while common law is a significant legal system, it exists alongside other legal traditions such as civil law and religious law, which are prevalent in many parts of the world.
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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.
Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. Judges search for past decisions from similar cases, known as precedents, and use them to help decide the outcome of a case.
Common law originated in England during the Middle Ages. It was then spread to North America during the colonial period of the 17th and 18th centuries.
Civil law is a comprehensive, codified set of legal statutes created by legislators. Common law is more flexible and adaptable to unforeseen situations as it is not bound by written codes.
Common law can inspire new legislation. For example, in 2018, the California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court led to the creation of a new section of the Labor Code, which codified and expanded on the holding.
