Cecily Zamora
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a flexible system that can respond to changes in society and is practised in several countries, including the United States, the United Kingdom, Canada, and Australia. The common law system in England has directly influenced that of other countries, including Ireland and the United States. It stands in contrast to civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries, with the goal of establishing consistent outcomes by applying the same standards of interpretation.
| Characteristics | Values |
|---|---|
| Basis | Court decisions, legal precedents, and judicial opinions |
| Sources | Custom, legal writings, previous court decisions, and public juries |
| Nature | Unwritten law, independent of statutes |
| Flexibility | Can respond to changes in society |
| Influence | Decisions in unusual cases where existing statutes or written rules do not apply |
| Development | Influenced by canon law, Roman law, and the Norman customary law |
| Modern Usage | Judge-made law, also known as case law |
| Examples | The United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand |
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What You'll Learn
Common law's evolution from a British tradition
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 has evolved from a British tradition that spread to North America during the 17th and 18th centuries. It is now practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and most of the member states of the Commonwealth.
The United States common-law system was influenced by English common law until the American legal system was able to create its own common law rules. In modern usage, common law is generally understood to mean law that is made by judges, not declaratory statutes. It is flexible, as it can respond to changes in society. Common law does not require lawmakers to pass changes in statutes and codes, which can be a lengthy process. Instead, higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers.
Common law stands in contrast to civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law 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 civil law is regularly updated, the goal of standardized codes is to create order and reduce bias in the system.
In England, common law has been administered by the common-law courts since the Middle Ages. Important consolidation occurred during the reign of Henry II (1154–1189), when royal officials roamed the country, inquiring about the administration of justice. The Normans, who spoke French, had developed a customary law in Normandy. They had no professional lawyers or judges, so literate clergymen acted as administrators. Some clergy were familiar with Roman law and the canon law of the Christian church, which was later applied in the English church courts.
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Common law in England and Wales
Common law is a term with historical origins in the legal system of England. It is the body of customary law, based on judicial decisions and embodied in reports of decided cases. It has been administered by the common-law courts of England since the Middle Ages. 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.
The Norman Conquest did not bring an immediate end to Anglo-Saxon law, but a period of colonial rule by the mainly Norman conquerors produced change. Land was allocated to feudal vassals of the king, and serious wrongs were regarded mainly as public crimes rather than as personal matters. The perpetrators were punished by death and forfeiture of property. Important consolidation occurred during the reign of Henry II (1154–89). Royal officials roamed the country, inquiring about the administration of justice. Church and state were separate and had their own law and court systems.
The common-law system in England has been applied to Wales since 1536. However, Wales is not a separate jurisdiction within the United Kingdom. The customary laws of Wales within the Kingdom of England were abolished by King Henry VIII's Laws in Wales Acts, which brought Wales into legal conformity with England. While Wales now has a devolved parliament (the Senedd), any legislation it passes must adhere to the Government of Wales Act 2006, to other legislation of the British Parliament, or to any Order in Council given under the authority of the 2006 Act.
The legal system administered through civil and criminal courts is unified throughout England and Wales. This is different from Northern Ireland, for example, which has its own distinct jurisdiction. A major difference is the use of the Welsh language, as laws concerning it apply in Wales and not in the rest of the United Kingdom. The Welsh Language Act 1993 is an Act of the Parliament of the United Kingdom, which put the Welsh language on an equal footing with the English language in Wales with regard to the public sector. Welsh may also be spoken in Welsh courts.
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Common law in Scotland
The modern roots of Scots law were established with the introduction of feudalism in the 12th century and the expansion of the Kingdom of Scotland. It was influenced by Anglo-Norman and continental legal traditions, including Roman law, which was adopted as a guide when there were gaps in their own common or customary law. However, the direct influence of Roman law was limited until the 15th century. After this period, Roman law was adapted and adopted in court arguments, integrating it into Scots law.
The Union with England Act of 1707 resulted in Scotland sharing a legislature with England and Wales, leading to English influence on Scots law. The House of Lords, acting as the supreme court of appeal from Scotland, tended to apply English law in Scottish appeals, contributing to the merging of Scots and English law. The rulings of the Supreme Court of the United Kingdom, previously the House of Lords, have had a considerable impact on the common law of Scotland, especially in areas where conformity across the United Kingdom was required.
The Scottish legal system, including its common law, is distinct from that of England and Wales, and it recognises four sources of law: legislation, legal precedent, specific academic writings, and custom. Legislation affecting Scotland is passed by the Scottish Parliament on devolved matters and the United Kingdom Parliament on reserved matters, with some pre-1707 legislation still in effect.
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Common law in the US
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 in the US has its roots in English common law, which was adopted and adapted by the American legal system during the colonial period of the 17th and 18th centuries.
American courts originally fashioned their common law rules based on English common law precedents. Over time, as the American legal system matured, it began to create its own common law rules through direct precedent or by analogy to comparable areas of decided law. This evolution of common law in the US was influenced by the British tradition, which had its own unique characteristics. For example, the Normans, who spoke French, had developed a customary law in Normandy, and literate clergymen acted as administrators in their courts.
The flexibility of common law allows it to respond to societal changes and enables higher courts to overrule prior decisions without waiting for lawmakers to act. This adaptability contributes to the robustness of commercial systems in the United States, as it provides reasonably precise guidance on various issues, allowing parties to predict the legality of their actions and ensure consistency. The reliance on judicial opinion and precedent in common law systems, such as the precedent known as stare decisis, guides courts and judges in making decisions and ensures consistency in legal outcomes.
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Common law vs civil law
Common law is a body of unwritten law based on case law and previous court decisions that is independent of statutes. It is rooted in the legal system of medieval England and has been administered by the common-law courts of England since the Middle Ages. It is now found in the United States and in most of the member states of the Commonwealth. Common law is also sometimes referred to as 'judge-made law'.
Civil law, on the other hand, is a legal system rooted in the Roman Empire, which was comprehensively codified and disseminated in the 19th century, with notable examples including France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). It is the most common legal system in the world, practiced in about 150 countries. Civil law relies on legal codes that function as the primary source of law, rather than judicial precedent.
In common law systems, judicial decisions are binding – decisions of the highest court can generally only be overturned by that same court or through legislation. Common law systems are less prescriptive, and extensive freedom of contract is allowed, with few provisions implied into the contract by law. In civil law systems, however, there is more emphasis on setting out all the terms governing the relationship between the parties to a contract in the contract itself.
Another key difference is that in civil law systems, judges tend to give less weight to judicial precedent. For example, the Napoleonic Code expressly forbade French judges from pronouncing general principles of law. There is also no doctrine of stare decisis in the French civil law tradition.
Louisiana is the only U.S. state whose private civil law is based heavily on the French and Spanish codes, as opposed to English 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.
Civil law is a comprehensive, codified set of legal statutes created by legislators. Common law, on the other hand, is more flexible and does not require lawmakers to pass changes in statutes and codes.
Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. It relies on detailed records of similar situations and statutes as there is no official legal code that can be applied to a case at hand.
Common law has been administered by the common-law courts of England since the Middle Ages. It was then spread to North America during the 17th and 18th-century colonial period.
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 also provides a level of predictability for parties, especially commercial parties, as they can predict whether a proposed course of action is likely to be lawful or unlawful.
