Cecily Zamora
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that has evolved from English common law, which originated in the early Middle Ages in the King's Court, and has been exported around the world through colonialism and the influence of the British Empire. Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom and the United States, among others. It is one of the two main legal systems used today, the other being civil law. Common law is often used in civil cases and is designed to compensate someone for wrongful acts, known as torts. It is also used to recognise and regulate contracts.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of law based on legal precedents established by the courts. |
| History | Common law originated in England in the Middle Ages and was spread to North America during the colonial period. |
| Geographic Reach | Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom, and some states in the United States. |
| Basis of Decisions | Common law relies on caselaw and legal precedent to guide decisions, in contrast to civil law, which relies on codes and statutes. |
| Flexibility | Common law is flexible and adaptable to unforeseen situations as it can respond to changes in society and does not require lawmakers to pass changes in statutes. |
| Stability and Consistency | Common law promotes stability and consistency as decisions are based on previous caselaw rather than subjective viewpoints. |
| Efficiency | Common law can save time and money in court proceedings as judges only need to follow precedent when making decisions. |
| Influence on Legislation | Common law can inspire new legislation and influence the legislative process. |
| Judicial Interpretation | Common law allows for judicial interpretation of fundamental laws, such as the US Constitution, and the application of law to specific facts. |
| Marginalization and Bias | The traditions of common law have been criticized for leading to the marginalization and disempowerment of certain groups. |
| Federal Common Law | In the United States, there is a limited body of federal common law, which consists of rules created and applied by federal courts in the absence of controlling federal statutes. |
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What You'll Learn
Common law is a body of unwritten laws
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 from a British tradition that spread to North America during the 17th and 18th centuries. Common law is currently practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States.
The United States operates under a dual system of both common and civil law. The U.S. common-law system originated in medieval England, but it is still very much in effect in the U.S. today. Every U.S. state, with the exception of Louisiana, has a common law legal system. Louisiana stands alone as the only civil law state, as its system is based on the French civil code that was in place before the U.S. purchased it in the early 1800s.
The form of reasoning used in common law is known as casuistry or case-based reasoning. Common law was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as a way to develop the body of law recognizing and regulating contracts. The type of procedure practised in common law courts is known as the adversarial system, which is also a development of common law.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is a system that promotes stability and consistency in the legal justice system. 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 that particular case. The example set by higher courts is binding on cases tried in lower courts. Lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case.
At the centre of common law is a legal principle known as stare decisis, which is a Latin phrase that roughly 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.
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Common law is 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. 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 roughly translates to "to stand by things decided". In other words, courts and judges must follow earlier decisions and rulings when dealing with similar cases later. This promotes stability and consistency in the legal system, as everyone involved knows that the outcome will be based on previous caselaw rather than subjective viewpoints.
The form of reasoning used in common law is known as casuistry or case-based reasoning. It involves evaluating the facts of each case and making legislative decisions based on the applicable civil code. While civil law is regularly updated to create order and reduce bias, common law is more flexible and can adapt to changes in society. It allows for situations not originally predicted by lawmakers to be addressed and does not require lawmakers to pass changes in statutes and codes, which can be time-consuming.
The doctrine of precedent in common law developed during the 12th and 13th centuries, emerging from collective judicial decisions based on tradition, custom, and precedent. Common law originated in the practices of the English king's courts following the Norman Conquest in 1066, establishing a unified legal system across England. It then spread to other parts of the world, including North America during the colonial period, and is currently practised in countries like Australia, Canada, India, and the United Kingdom.
The United States operates under a dual system of both common and civil law. While common law is not prevalent in the US, some states have statutes or allow for common law marriages if certain requirements are met. Common law marriages acknowledge similar rights to couples who are not officially married. The concept of common law has faced criticism for leading to the unfair marginalization or disempowerment of certain groups, as past decisions continue to shape future rulings until societal changes prompt a re-evaluation of the interpretation of common law.
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Common law is flexible and adaptable
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common law is flexible and adaptable in several ways.
Firstly, common law is flexible because it can respond to changes in society. It is not static but rather a dynamic system that can evolve as societal norms and values shift. This adaptability is a significant advantage of common law over civil law systems. In civil law, changes to statutes and codes must be passed by lawmakers, which can be a lengthy process or may never occur. In contrast, common law higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act. This ability to adapt to societal changes ensures that common law remains relevant and responsive to the needs of the people it serves.
Secondly, common law is flexible in that it allows for the consideration of the specific circumstances of each case. While civil law systems have clear rules outlining how judges should rule in specific disputes, common law provides judges with more flexibility to consider the unique facts and circumstances of each case. This flexibility allows judges to make decisions that are more nuanced and tailored to the particular situation at hand. It also enables judges to address situations that may not have been originally predicted or considered by lawmakers when creating statutes and rules. This adaptability ensures that justice can be served even in unforeseen or unusual scenarios.
Thirdly, common law is flexible because it can be influenced by public juries. As a system of law based on legal precedents, common law takes into account the opinions and interpretations of public juries, who are sworn on oath to investigate criminal accusations and civil claims. This aspect of common law allows for a degree of public input and influence on the legal system, making it more adaptable to the needs and values of society.
Lastly, common law is flexible in that it can be a source of inspiration for new legislation. As common law evolves and adapts to societal changes, it can inform and influence the creation of new statutes and codes. This dynamic interplay between common law and legislation ensures that the law as a whole remains relevant and responsive to the needs of the society it serves.
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Common law is used in civil cases
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is distinct from criminal law and is applied in civil cases to compensate someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence. It also helps develop the body of law that recognises and regulates contracts. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries.
The type of procedure practised in common law courts is known as the adversarial system, which is also a development of the common law. In 1154, Henry II became the first Plantagenet king and institutionalised common law by creating a unified system of law "common" to the country. He did this by incorporating and elevating local customs to the national level, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system.
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. The common law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. It is practised in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
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 United States federal courts are divided into twelve regional circuits, each with a circuit court of appeals. Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself, but they are only persuasive authority on sister circuits.
Common law marriages, also known as non-ceremonial marriages, are a legal framework that may allow couples to be considered married without having formally registered their union as either a civil or religious marriage.
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Common law is used in criminal cases
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is used in criminal cases to influence the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. It draws from institutionalized opinions and interpretations from judicial authorities and public juries.
The use of common law in criminal cases can be traced back to the early Middle Ages in England, where it originated in the King's Court (Curia Regis). Over time, this system evolved and spread to other parts of the world, including North America during the 17th and 18th centuries. Today, common law is practiced in countries such as Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
In the context of criminal law, common law has been used to establish offences and define the elements of crimes. For example, in Michigan, the penalties for murder are laid out in statute law, but the actual definition and meaning of murder are set out in common law. Similarly, in Canada, common law offences were consolidated into the Criminal Code enacted in 1953, with contempt of court being the only remaining common law offence.
However, the use of common law in criminal cases has also faced criticism and challenges. In England and Wales, for instance, there have been efforts to abolish common law offences and replace them with offences precisely defined by statute. Common law offences were seen as vague and open to development by the courts in ways that might compromise the principle of certainty.
Additionally, the traditions of common law have been criticized for leading to the marginalization and disempowerment of certain groups. Past decisions, whether outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn them. This dynamic has made it challenging for marginalized groups to achieve favorable rulings until popular thought or civil legislation changes the interpretation of common law.
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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 relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case. The judge presiding over a case determines which precedents apply to that particular case.
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, promotes stability and consistency in the legal system by relying on previous caselaw rather than subjective, personal viewpoints.
Common law is practiced in countries that were historically influenced by British law, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
