Keith Mack
Common law is a body of unwritten laws based on legal precedents established by the courts. It is often contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems trace their history to English common law, which emerged in the 12th century under King Henry II, while civil law systems are based on the Napoleonic Code and Roman law. Common law is characterized by its adversarial process, where two parties present their arguments to a judge, and it plays a significant role in the legal framework of several countries, including the United States, Canada (excluding Quebec), India, and others. It is used in civil cases to compensate someone for wrongful acts (torts) and to recognize and regulate contracts.
| Characteristics | Values |
|---|---|
| History | Originated in the early Middle Ages in the King's Court (Curia Regis) in England |
| Developed into a recognisable form between the 13th and 16th centuries | |
| Influenced by Roman law and canon law | |
| Developed independently of civil law, which originated in mainland Europe | |
| Used in several countries today, including the US, Canada, India, and Australia | |
| Use | Used to guide court rulings when the outcome is undetermined based on written rules of law |
| Influences the decision-making process in unusual cases | |
| Used to uphold precedent and avoid "absurd and outrageous consequences" |
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What You'll Learn
Common law vs civil law
Common law and civil law are two distinct legal systems with different histories and applications. Common law is a body of unwritten laws based on legal precedents and judicial decisions that guide court rulings when the outcome is undetermined by written rules of law. It originated in medieval England and is the legal system of choice in several countries today, including the United States, Canada, India, and Australia. The doctrine of precedent developed during the 12th and 13th centuries, with the collective judicial decisions based on tradition, custom, and precedent.
In contrast, civil law, rooted in the Roman Empire, is a comprehensive system of codified laws that clearly outline procedures and punishments. It is the world's most common legal system, practiced in about 150 countries, including Continental Europe, Mexico, most of Central and South America, and some African countries. Civil law systems rely primarily on codes and statutes, and civil law judges tend to give less weight to judicial precedent. For example, the Napoleonic Code expressly forbade French judges from pronouncing general principles of law.
One of the key differences between common law and civil law is their approach to precedent. Common law systems heavily rely on stare decisis, a Latin term meaning "to stand by things decided." Judges in common law jurisdictions are bound by previous court decisions and rulings, known as case law. In civil law systems, on the other hand, court decisions are not binding in other cases, even if the facts are similar. Civil law judges have more flexibility in interpreting the law and are not strictly bound by previous rulings.
Another difference lies in their approach to contracts. Common law systems provide extensive freedom of contract, with few provisions implied by law. It is important to set out all the terms governing the relationship between the parties in the contract itself. In contrast, civil law systems imply various provisions into contracts, and the contracts tend to be shorter. These provisions may include protections for consumers or requirements for equal bargaining between parties with unequal bargaining power.
The impact of these legal systems can be significant, as seen in the example of 19th- and early 20th-century feminists fighting for women's rights. In England, common law held that fathers were entitled to custody of children in cases of divorce, effectively trapping women in marriages. This illustrates how past decisions in common law can shape future rulings until societal changes prompt a judicial body to overturn the precedent.
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Common law in the Middle Ages
Common law, a body of unwritten laws based on legal precedents, is often contrasted with civil law systems, which are used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems trace their roots back to the Middle Ages in England, where they were influenced by Roman law and Canon law.
During the 12th and 13th centuries, England saw a shift from local, informal power arrangements to a more centralized system of royal justice under King Henry II. This period marked the development of the doctrine of precedent, with judicial decisions based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. The first common law scholars, such as Glanvill and Bracton, were well-versed in Roman law, and their treatises on English law showed its influence. Bracton's 13th-century treatise, in particular, drew upon Roman law to supply a method of reasoning and a technical language to describe precise rules from vague customs and individual cases.
The emergence of improved remedies in the King's Court during the late 12th century led to the elaboration and standardization of rules governing land tenure, marking the effective origin of common law. Land law was a significant area of focus in common-law courts, and the rules governing land tenure were often developed in local lord's courts, which managed the estates of the lord's immediate tenants. Littleton's Tenures, published in 1481, became the first "textbook" of English law, summarizing the detailed set of substantive rules that had emerged in this area.
The Year Books, or the law reports of medieval England, are a principal source for understanding the development of legal doctrines, concepts, and methods during the period from the 13th to the 16th centuries, when common law took on a recognizable form. The Plea Rolls, written in Latin, also provide official court records for the Courts of Common Pleas and King's Bench during this time. These sources offer valuable insights into the evolution of common law during the Middle Ages, shaping the legal traditions of English-speaking countries that continue to rely on common law today.
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Common law in modern times
Common law is a body of unwritten laws based on legal precedents established by the courts. It is often contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems place a strong emphasis on precedent and allow some freedom for interpretation, whereas civil law systems rely primarily on codes and statutes.
In modern times, common law continues to be relevant and applied in several countries, including the United States, Canada, India, Australia, and the United Kingdom. It influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. Legal technology has made it easier and faster to research case law, which is essential in common law systems.
Common law has evolved over time and adapted to changing societal norms. For example, in England, common law once held that fathers were entitled to custody of children in cases of divorce, but this bias has since been overturned. Common law has also served as the basis for new legislation, such as the prosecution of "upskirting" under the common-law offense of "outraging public decency" in the UK.
The value of a common-law system lies in its ability to adapt to situations not contemplated by the legislature. As technology advances and plays a greater role in our lives, the flexibility of common law in allowing for interpretation will become increasingly important.
In summary, common law remains a significant legal framework in modern times, influencing legal systems and shaping judicial decisions in various countries. Its emphasis on precedent, adaptability, and interpretation ensures that it remains relevant and responsive to societal changes and emerging issues.
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Common law in federal courts
Common law is a body of unwritten laws based on legal precedents and past decisions. It is often contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems place great weight on precedent and past judicial decisions, while civil law systems rely primarily on codes and statutes.
Federal common law refers to common law that is developed by the federal courts of the United States, rather than by the courts of individual states. While federal courts generally apply state law as the substantive law when hearing cases between parties from different states, there are several areas where federal common law continues to govern. These areas fall into two basic categories: where Congress has given the courts the power to develop substantive law, and where a federal rule of decision is necessary to protect uniquely federal interests.
The U.S. Congress has given courts the power to formulate common law rules in areas such as admiralty law, antitrust, bankruptcy law, interstate commerce, and civil rights. In these areas, Congress often provides broad mandates with vague standards, leaving it to the courts to interpret and apply federal common law. Federal common law is valid only to the extent that Congress has not repealed it with a statute.
While federal courts cannot define new common law crimes, they do have the ability to create federal common law in limited circumstances where federal or Constitutional interests are at stake, and the application of state laws would create uncertainty or conflict. In such cases, federal courts may adopt a reasonable state law, refer to their own precedent, or create new law.
Overall, federal common law plays a significant role in the United States legal system, allowing federal courts to address unique federal interests and interpret broad congressional mandates through the development and application of common law rules.
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Common law in the US
Common law is a body of unwritten laws based on past judicial decisions and legal precedents. It is often contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems, on the other hand, are used in several countries around the world, including the US, where it plays a significant role in the legal system.
In the US, common law is derived from judicial decisions rather than statutes. The US legal system initially based its common law rules on English common law. Over time, the American legal system matured, and common law rules were created either from direct precedent or by drawing parallels with comparable areas of decided law. While most common law is found at the state level, there is also a limited body of federal common law, which comprises rules created and applied by federal courts in the absence of a controlling federal statute.
Trial court judges in the US decide cases by applying the law to the facts. The law may originate from laws passed by a legislative body, common law, or a combination of both. When employing common law, judges refer to past decisions from similar cases, known as precedents, to ensure consistency in the law. These precedents are binding for lower courts within the same geographic region, and all courts must follow any binding precedent decisions made by the US Supreme Court.
Common law plays a significant role in various legal areas, including negligence and contracts. For instance, determining liability in car accidents often involves applying the common law principles of negligence. Judges also define the creation of contracts and outline the consequences of unfulfilled contractual promises.
In summary, common law in the US is a crucial aspect of the legal system, influencing judicial decisions and shaping various areas of law. It is characterised by its reliance on past precedents and judicial decisions rather than written codes or statutes.
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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 derived from judicial decisions rather than written statutes.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Common law, on the other hand, draws from institutionalised opinions and interpretations from judicial authorities and public juries.
Common law systems are used in several countries, including the United States, Canada (excluding Quebec), India, and others. It is also used at the state level in the United States, with some federal common law created and applied by federal courts.
Common law is based on the principle of stare decisis, which means "to stand by things decided". In practice, this means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later. This creates consistency and fairness across similar legal situations.
