Kara Sears
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 that promotes stability and consistency in the legal justice system. In common law jurisdictions, several stages of research and analysis are required to determine what the law is in a given situation. Common law has also been described as flexible, as it can respond to changes in society. For example, in England, common law held that, when couples divorced, fathers—rather than mothers—were entitled to custody of the children. However, societal changes prompted a judicial body to overturn this precedent. From time to time, common law has furnished the basis for new legislation to be written. For instance, in the UK, the ancient common law offence of outraging public decency was used to prosecute a new intrusive activity called upskirting. This led to the Voyeurism (Offences) Act being passed in February 2019, officially making upskirting a crime. Similarly, common law countries are increasingly adopting codes similar to civil law systems in areas such as bankruptcy, intellectual property, and tax law. When legislation is enacted that changes common law principles, it can provide clarity and consistency in legal decision-making, address unforeseen situations, and reflect societal changes.
| Characteristics | Values |
|---|---|
| Common law principles | Common law, also known as case law, relies on detailed records of similar situations and statutes. |
| Legislation enacted | Legislation is enacted to address unforeseen situations and to correct substantive errors in previous legislation. |
| Changes to common law | Common law can be changed through the enactment of new legislation, such as the Voyeurism (Offences) Act in the UK, or the adoption of codified frameworks, such as the Uniform Commercial Code in the US. |
| Stability and consistency | Common law promotes stability and consistency by relying on previous case law and judicial precedents. |
| Adaptability | Common law is adaptable to changes in society and can address situations not originally predicted by lawmakers. |
| Flexibility | Common law is flexible as it does not require lawmakers to pass changes in statutes and codes. |
| Judicial independence | An independent judiciary interprets the Constitution and ensures that legislative power is exercised within the authority granted by the Constitution. |
| Fundamental laws | The Constitution and other fundamental laws, such as the Bill of Rights, take precedence over legislative statutes. |
| Equality before the law | The court system upholds equality before the law and protects the rights of minorities. |
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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 flexible and adaptable in several ways.
Firstly, common law is flexible because it can respond to changes in society. It does not require lawmakers to pass changes in statutes and codes, which can be time-consuming or may never happen. Instead, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act. This adaptability allows common law to address situations not originally predicted by lawmakers. For example, in the UK, the ancient common law offence of "outraging public decency" was used as the basis for new legislation to criminalise "upskirting".
Secondly, common law is adaptable because it allows for some freedom of interpretation. While it places an emphasis on precedent, it does not rely on written rules or official legal codes, allowing judges presiding over a case to determine which precedents apply. This flexibility enables common law to be applied to specific situations and helps to establish consistent outcomes by applying the same standards of interpretation.
Thirdly, common law is flexible because it can be influenced by societal changes. While past decisions continue to shape future rulings, societal changes can prompt a judicial body to overturn a precedent. For example, feminists in the 19th and early 20th centuries faced difficulties due to common law traditions that marginalised women, but societal changes have since led to the interpretation of common law evolving to be more favourable towards women's rights.
Finally, common law is adaptable in that it can be codified and integrated with civil law systems. For instance, the US state of California has a system based on common law but has also adopted the California Codes, treating them as an extension of the common-law tradition and subject to judicial development. Similarly, common law countries are increasingly adopting codes in areas such as bankruptcy, intellectual property, and tax law.
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Common law can be influenced by societal changes
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 influences decision-making in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law.
Common law can indeed be influenced by societal changes. Historically, the traditions of common law have led to the unfair marginalization or disempowerment of certain groups. Past decisions, whether outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. For example, in England, common law held that, in cases of divorce, fathers were entitled to custody of the children, a bias that kept women trapped in marriages. Feminists in the 19th and early 20th centuries who fought for women's rights often faced such difficulties. However, societal changes and shifts in popular thought can lead to the reinterpretation of common law, making it more inclusive and reflective of current social norms.
In some cases, common law has furnished the basis for new legislation to be written. For instance, the U.K. has long recognized the common-law offense of "outraging public decency". In recent years, this ancient common law has been used to prosecute a new intrusive activity called "upskirting", which involves taking non-consensual photos or videos of private parts for sexual gratification or to humiliate or distress. This led to the Voyeurism (Offenses) Act of 2019, which officially criminalized upskirting.
Common law countries are increasingly adopting codes similar to civil law systems in specific areas, such as bankruptcy, intellectual property, and tax law. For example, the U.S. has enacted the Uniform Commercial Code (UCC), which has been widely regarded as a significant development in American law. While civil law provides a comprehensive set of codified legal statutes, common law relies on detailed records of similar situations and statutes due to the absence of an official legal code. This flexibility allows common law to adapt to societal changes and address new issues that may arise over time.
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Common law can be overruled by higher courts
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a particular case. The judge presiding over a case determines which precedents apply to that case. The example set by higher courts is binding on cases tried in lower courts. This system promotes stability and consistency in the US legal justice system.
In the US, the Supreme Court can and does change its interpretation of laws passed by Congress and the Constitution. The US Supreme Court can overrule decisions of other courts and sometimes its own decisions. The Supreme Court interpretations of the Constitution or federal statutes are stable only so long as older decisions are not overruled by new ones.
In the jurisdictions of England, Wales, and Northern Ireland, the Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts. It is the final court of appeal for civil law cases in all three UK jurisdictions but not for criminal law cases in Scotland, where the High Court of Justiciary has this power.
Common law can be overruled by statutes or new legislation. Statutes may codify existing common law, create new causes of action that did not exist in the common law, or legislatively overrule the common law. For example, in the UK, the ancient common law offence of "outraging public decency" was used to prosecute upskirting. In 2019, the UK Parliament passed the Voyeurism (Offences) Act, which officially made upskirting a crime, punishable by up to two years in prison.
Lower courts can also choose to overturn the precedent, but this rarely occurs. They can modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case.
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Common law promotes stability and consistency
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law and relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand. The judge presiding over a case determines which precedents apply to that particular case. This system promotes stability and consistency in the U.S. legal justice system.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Similar to civil law, the goal of common law is to establish consistent outcomes by applying the same standards of interpretation. In some instances, precedent depends on the case-by-case traditions of individual jurisdictions. As a result, elements of common law may differ between districts.
Common law has also been described as flexible, since it can respond to changes in society. Unlike civil law systems, common law doesn’t require lawmakers to pass changes in statutes and codes, which can take a long time or never happen at all. 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 of what they consider important to determine how the next court is likely to rule on the facts of the present case.
Common law countries are increasingly adopting codes, similar to civil law systems, in areas such as bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law.
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Common law can be influenced by civil law
Common 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 relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand. The judge presiding over a case determines which precedents apply to a particular case.
Civil law, on the other hand, 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. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions.
While common law and civil law have distinct features, common law can be influenced by civil law in several ways. Firstly, common law countries are increasingly adopting codes similar to civil law systems in various areas of law, such as bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law. For example, the United States has enacted the Uniform Commercial Code (UCC), which has been adopted with local variations across all 50 states and other US territories.
Secondly, in some civil law systems, the writings of legal scholars have a significant influence on the courts. This can indirectly impact common law, as seen in the case of Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health, where a court composed of essentially civil law judges used a historically common law principle.
Additionally, civil legislation can change the interpretation of common law. For example, in the 19th and early 20th centuries, feminists fighting for women's rights had to contend with common law traditions that marginalized and disempowered women. It was only when societal changes prompted a shift in interpretation, influenced by civil legislation, that the marginalization was addressed.
Furthermore, civil law can provide the basis for new legislation that modifies or replaces common law. For instance, in the UK, the common-law offence of "outraging public decency" was used to prosecute "upskirting". In 2019, the Voyeurism (Offences) Act was passed, officially criminalizing "upskirting" and providing specific punishments, thereby superseding the common law precedent.
In conclusion, while common law and civil law have distinct characteristics, common law can be influenced by civil law through the adoption of similar codes, the impact of legal scholars, changes in interpretation prompted by civil legislation, and the enactment of new legislation that modifies or replaces common law precedents.
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Frequently asked questions
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.
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 offense. Common law, on the other hand, is more flexible and adaptable to unforeseen situations. It does not require lawmakers to pass changes in statutes and codes, and higher courts can overrule prior decisions without waiting for lawmakers.
Yes, common law can be changed by legislation. While common law is flexible and can evolve through a series of gradual steps, legislation can directly change or amend common law principles. An Act of Parliament, for example, can create a new law or change an existing law, and this can come into force immediately or at a future date.
