Keith Mack
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 originated in England in the Middle Ages and was developed by judges rather than legislators. It is still used in the United States and other countries today, although it is not the only legal system in use. For example, many countries use a civil law system, which relies primarily on codes and statutes rather than legal precedent. Common law is flexible and adaptable to changing needs and situations, but it can also be time-consuming and inefficient to find relevant case law. While common law marriage is not common in the U.S., some states allow for it if certain requirements are met.
| Characteristics | Values |
|---|---|
| Definition | 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) in England. |
| Evolution | Common law evolves over time, with judges "making law" and adapting to changing needs and circumstances. |
| Sources | Common law draws from institutionalized opinions, interpretations, and precedents established by judicial authorities and public juries. |
| Implementation | Common law is implemented in unusual cases where existing statutes or written rules do not provide a clear outcome. |
| Flexibility | Common law is flexible, allowing higher courts to overrule prior decisions and adapt to changes in society. |
| Efficiency | Common law proceedings can be shorter, as judges only need to follow precedent, saving time and money. |
| Adaptability | Common law can address unforeseen situations not contemplated or predicted by lawmakers. |
| Influence | Common law has influenced the legal systems of the United States, Commonwealth countries, and former colonies like Ghana. |
| Current Usage | The US operates under a dual system of common and civil law, and common law is still practised in Australia, Canada, Hong Kong, India, New Zealand, and the UK. |
| Criticism | Common law has been criticised for leading to the marginalization or disempowerment of certain groups due to outdated or biased past decisions. |
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What You'll Learn
Common law is a body of unwritten laws based on legal precedents
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is derived from its original appearance in medieval England, specifically in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, London. It is a flexible system that can respond to changes in society and adapt to situations not contemplated by the legislature. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is not based on a comprehensive, codified set of legal statutes created by legislators like civil law but instead relies on caselaw and legal precedent to guide decisions.
The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. In common law systems, precedents are maintained over time through court records and are historically documented in collections of case law referred to as yearbooks and law reports. The main sources for the history of common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, the official court records for the Courts of Common Pleas and King's Bench, were written in Latin and are currently deposited in the UK National Archives.
Common law is practised in the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand. The U.S. common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. The United States federal courts relied on private publishers until after the Civil War and only began publishing as a government function in 1874. The largest private-sector publisher of law reports in the United States is West Publishing in Minnesota.
Common law is also practised in Ghana, which inherited it during colonisation. The Supreme Court Ordinance of 1876 formally introduced British law in Ghana, and the common-law tradition was formalised in Section 14 of the Ordinance. After independence, Ghana did not abolish the common law system, and it has been enshrined in the 1992 Constitution.
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Common law is also known as case law
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law, and it is deeply rooted in stare decisis, which means "to stand by things decided". Common law is a system of law that primarily develops through judicial decisions rather than statutes. It is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law, or case law, draws from institutionalized opinions and interpretations from judicial authorities and public juries.
The form of reasoning used in common law is known as casuistry or case-based reasoning. It involves several stages of research and analysis to determine "what the law is" in a given situation. This includes ascertaining the facts, locating relevant statutes and cases, and extracting principles, analogies, and statements by various courts. The doctrine of precedent in common law developed during the 12th and 13th centuries, based on tradition, custom, and precedent. The main sources for the history of common law during the Middle Ages are the plea rolls and the Year Books, which are deposited in the UK National Archives.
Common law originated in the practices of the courts of the English kings following the Norman Conquest in 1066. Henry II further institutionalized common law by creating a unified system of law common to the country, incorporating and elevating local customs, and eliminating arbitrary remedies. This unified system curbed the power of canonical (church) courts. Common law was later introduced to British colonies, such as Ghana (formerly Gold Coast), and it continues to influence their legal systems today.
In the United States, the common law system evolved from British traditions during the 17th and 18th centuries. Today, the US operates under a dual system of both common and civil law. While common law marriage is not common in the US, some states have statutes allowing for it under certain conditions. Common law continues to influence legal systems worldwide, providing a basis for adapting the law to changing socio-economic and political realities.
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Common law is flexible and adaptable to unforeseen situations
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin term that means "to stand by things decided". Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can apply to a case at hand. The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts.
The flexibility of common law allows it to respond to changes in society and evolve gradually over time, reducing disruption. For instance, the laws of Ghana are mostly a modified version of imported English common law that is continuously adapting to changing socio-economic and political realities in the country. Common law also promotes stability and consistency in the legal system because everyone involved knows that the outcome will be based on previous case law rather than subjective viewpoints.
However, the reliance on precedent in common law can also lead to unfair marginalization or disempowerment of certain groups. Past decisions can continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
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Common law is contrasted by civil law, which is widespread in Europe
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law is derived from its original appearance in medieval England, and it is still in effect in the US and other countries today. Common law is also known as case law, and it draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is less prescriptive than civil law, and it emphasizes precedent while allowing some freedom for interpretation.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, particularly with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is the most common legal system in the world, practiced in about 150 countries. It is characterized by its reliance on legal codes as the primary source of law, rather than judicial precedent. In a civil law system, the law is typically more prescriptive, and there are more provisions implied into a contract.
The two systems contrast in their approach to precedent and written decisions. Common law systems place great weight on precedent, with judicial opinions and rationales influencing future cases. In civil law systems, judges tend to give less weight to precedent, and there is no doctrine of stare decisis in the French civil law tradition. Common law systems also rely on detailed records of similar situations and statutes, as there is no official legal code for a specific case.
Countries that follow a common law system are typically former British colonies or protectorates, including the United States, Australia, Canada, India, and New Zealand. Civil law, on the other hand, is widespread in Europe and has influenced the legal traditions of many European countries. It is also practiced in many countries in Africa and other parts of the world. Louisiana is the only U.S. state whose private civil law is heavily based on French and Spanish codes, rather than English common law.
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Common law originated in 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 a system of law that gives great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law originated in medieval England, in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. It was so named because it was common to all the king's courts across England and established a unified legal system, gradually replacing local folk courts and manorial courts.
The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government. The degree to which common law drew from earlier Anglo-Saxon traditions, such as the jury, ordeals, the penalty of outlawry, and writs, is still a subject of much discussion.
The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. The early development of case law in the 13th century has been traced to Bracton's On the Laws and Customs of England, which led to the yearly compilations of court cases known as Year Books. The Year Books are known as the law reports of medieval England and are a principal source for knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when common law developed into a recognisable form.
Today, common law is practised in many countries, including the United States, Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and Ghana, a former British colony.
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Frequently asked questions
Common law is still used today in the US and other countries, including Australia, Canada, India, and New Zealand, and the UK.
No, the other main legal system used today is civil law, which originated in mainland Europe.
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Judges need only follow precedent when making decisions in common law systems, allowing for flexibility and adaptability to unforeseen situations.
Civil law systems rely primarily on codes and statutes, with a clear outline of procedures for handling claims and punishments for offenses. Common law, on the other hand, relies on caselaw and judicial decisions from previous cases, allowing for more interpretation and evolution of the law.
Common law can inspire new legislation by providing a basis for addressing new and unforeseen situations. It also helps interpret undefined words in statutes and gives meaning to language in collateral source statutes.
