Kara Sears
Judge-made common law has been the primary source of law for several hundred years, with its origins in the early Middle Ages in the King's Court (Curia Regis). It is a body of unwritten laws based on legal precedents established by the courts, also known as case law. Judges interpret and apply these laws, and their decisions are recorded and maintained over time through court records. This evolution of common law is in the hands of judges, who have made law and continue to shape future rulings. Common law is flexible, as it can respond to changes in society and does not require lawmakers to pass changes in statutes and codes. It is currently practised in several countries, including the United States, Canada, the United Kingdom, and Australia.
| Characteristics | Values |
|---|---|
| Basis | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| History | Judge-made common law operated as the primary source of law for several hundred years. |
| Evolution | Common law evolves and this evolution is in the hands of judges, who have "made law" for hundreds of years. |
| Adaptability | Common law systems can address situations not originally predicted by lawmakers. |
| Flexibility | Common law is flexible as it can respond to changes in society. |
| Efficiency | Judges need only follow precedent when making decisions, so court proceedings are shorter and more efficient. |
| Influence | Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. |
| Jurisdiction | Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and most U.S. states. |
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What You'll Learn
Common law is flexible and adaptable
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".
The flexibility of common law is further demonstrated in its ability to respond to changes in society. Unlike civil law systems, which rely on comprehensive codes and statutes, common law can adapt to societal changes without the need for legislative intervention. This adaptability ensures that common law remains relevant and responsive to the evolving needs and values of society.
Additionally, the flexibility of common law allows for the reinterpretation and revision of laws to adapt to new trends in political, legal, and social philosophy. This adaptability ensures that common law can be applied consistently and fairly, promoting stability and consistency in the legal system.
Overall, the flexibility and adaptability of common law are key advantages that enable it to address unforeseen situations, respond to societal changes, and adapt to new trends. These characteristics contribute to the dynamic and evolving nature of common law, ensuring its relevance and effectiveness in a changing world.
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Common law is judge-made law
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 has evolved over time through judicial decisions and has been administered by the common-law courts of England since the Middle Ages. Common law is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. While civil law systems have clear rules and codes for judges to follow, common law relies on case law and legal precedent to guide decisions.
The term "judge-made law" was introduced by Jeremy Bentham as a criticism of the legal profession's pretence of reaffirming pre-existing customs without making new laws. However, the evolution of common law is indeed influenced by judges, who have "made law" for hundreds of years. In common law systems, judges are bound by the decisions of earlier judges and must follow the interpretation of the law and apply the same principles if the cases have similar facts. This concept is known as stare decisis or precedent.
The early development of case law in the 13th century can be traced to Bracton's "On the Laws and Customs of England," which led to the yearly compilations of court cases known as Year Books. These Year Books are a principal source for understanding the development of legal doctrines, concepts, and methods during the formative years of common law. Common law operated as the primary source of law for several hundred years before the emergence of parliamentary legislative powers to create statutory law.
Common law is adaptable and flexible, allowing it to address unforeseen situations and respond to societal changes. It influences the decision-making process in unusual cases where existing statutes or written rules do not provide a clear outcome. This flexibility enables higher courts to overrule prior decisions as "bad law" without waiting for lawmakers to act. However, the past decisions in common law can lead to the marginalization or disempowerment of certain groups, and societal changes may be necessary to prompt the overturning of outdated or biased precedents.
Common law is practiced in various countries, including the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand. While the U.S. operates under a dual system of common and civil law, every state except Louisiana has a common law legal system. Common law has also served as the basis for new legislation, such as the U.K.'s Voyeurism (Offences) Act criminalizing "upskirting."
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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. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is a flexible system that can respond to changes in society.
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. Crimes were treated as wrongs for which compensation was made to the victim.
In the early Middle Ages, the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London, began to develop a body of customary law. In the 1180s, Henry II sent around 20-30 judges from his Curia Regis to hear disputes throughout the country. They would resolve disputes on an ad hoc basis according to their interpretation of the customs. Upon returning to London, these judges would often discuss their cases and decisions with other judges, and these decisions would be recorded and filed.
Over time, a rule known as stare decisis (commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge if the two cases had similar facts. This rule of precedent was maintained over time through court records and historical documentation in collections of case law known as yearbooks and law reports.
Today, common law is practiced in several countries, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. It is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators.
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Common law is unwritten law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is adaptable to the unforeseen and flexible, as it can respond to changes in society.
The term "judge-made law" was introduced by Jeremy Bentham as a criticism of the pretense of the legal profession. However, many notable writers, including A.V. Dicey, William Markby, and Oliver Wendell Holmes, eventually adopted the modern definition of common law as "case law" or ratio decidendi, which serves as binding precedent. 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 before extracting 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.
Judge-made common law operated as the primary source of law for several hundred years before Parliament acquired legislative powers to create statutory law. In England, judges have devised rules regarding how to deal with precedent decisions. 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. Common law is still very much in effect today in the US and elsewhere, with many countries using common law legal systems, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
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Common law is case law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". Common law is adaptable and flexible, as it can address situations not predicted by lawmakers and respond to changes in society. It is based on the principle of binding precedent, where judges are bound to follow the decisions and interpretations of earlier judges in similar cases. This is in contrast to civil law, which is a comprehensive, codified set of legal statutes created by legislators.
The evolution of common law is in the hands of judges, who have "made law" for hundreds of years. Judicial opinions are usually quite long, providing rationales and policies that can be balanced with judgment in future cases. Judges present the precedents that apply to a case, significantly influencing the criteria that a jury uses to interpret it. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is based on the concrete facts of a case, rather than abstract statutes and regulations.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. One must first ascertain the facts, locate relevant statutes and cases, and then extract the principles, analogies, and statements by various courts. Common law systems rely on caselaw and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Common law has also been criticized for leading to the unfair marginalization or disempowerment of certain groups due to outdated or biased past decisions.
Common law originated in the practices of the English king's courts following the Norman Conquest. It was first developed by Henry II, who sent judges to hear disputes throughout the country, interpreting and recording the customs. Over time, the rule of stare decisis developed, whereby judges were required to follow the interpretation of an earlier judge if the two cases had similar facts. The early development of case law in the 13th century led to the yearly compilations of court cases known as Year Books, which are a principal source for understanding the development of legal doctrines, concepts, and methods during this period.
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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 influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. Every US state except Louisiana has a common law legal system.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It centres around a comprehensive code of statutes that outlines the procedures for handling claims and the punishment for offences. Common law, on the other hand, relies on caselaw and legal precedent to guide decisions.
Judges present the precedents that apply to a case, which can significantly influence the criteria that a jury uses to interpret a case. Judges need only follow precedent when making decisions in common law systems, and higher courts can overrule prior decisions as "bad law".
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