Keith Mack
The common law system, as we know it, started in England during the Middle Ages. It is a body of unwritten laws based on societal customs and enforced by the judgments and decrees of the courts. The main sources for the history of common law in the Middle Ages are the plea rolls and the Year Books, which are known as the law reports of medieval England. Common law places an emphasis on precedent while allowing some freedom for interpretation. It is one of the two main legal systems used today throughout the world, the other being civil law systems. Common law systems rely on caselaw and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes.
| Characteristics | Values |
|---|---|
| Definition | "The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts." |
| Origin | Medieval England |
| Basis | Court decisions, not codes or statutes |
| Other Names | Stare decisis, caselaw |
| Evolution | Gradual, through a series of steps |
| Flexibility | More malleable than statutory law |
| Precedent | Important but not binding |
| Influence | Influenced legal systems in the United States, India, Canada, Australia, and most member states of the Commonwealth |
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What You'll Learn
Common law is a body of unwritten laws based on legal precedents
The common law system is one of the two main legal systems used today, the other being the civil law system. Common law systems rely on caselaw and legal precedent to guide their decisions, while civil law systems rely primarily on codes and statutes. In a common law system, the law is more malleable as it is not absolutely bound by precedent and can be reinterpreted and revised without legislative intervention to adapt to new trends in political, legal and social philosophy.
The value of a common-law system is that the law can be adapted to situations that were not contemplated at the time by the legislature. This is because common law promotes stability and consistency, as everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints. Common law also allows for efficiency, as court proceedings can be shorter since judges only need to follow precedent when making decisions.
The doctrine of precedent, which forms the basis of evaluation for future cases, developed during the 12th and 13th centuries as collective judicial decisions that were based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. Common law, also referred to as case law, draws from institutionalized opinions and interpretations from judicial authorities and public juries.
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Common law is derived from medieval England
Common law is a body of unwritten laws based on legal precedents and court decisions. It is a system that allows for the adaptation of the law to situations that were not contemplated at the time by the legislature. Common law is derived from medieval England, where it was the primary source of law for several centuries before the emergence of statutory law.
The common law system as we know it today originated in England during the Middle Ages, specifically after the Norman Conquest of 1066. The Normans had developed their customary law in Normandy, which was brought to England and formed the basis of the English legal system. This system gradually supplanted the local folk courts and manorial courts, and it was spread throughout the British Isles and later to the colonies of the British Empire.
The early development of common law in the 13th century is attributed to Bracton's "On the Laws and Customs of England," which led to the yearly compilations of court cases known as the Year Books. These Year Books, first published in 1268, are considered the law reports of medieval England and provide valuable insights into the evolving legal doctrines, concepts, and methods of that period.
The first attempt at a comprehensive compilation of centuries of common law was made by Lord Chief Justice Edward Coke in the 17th century. In his treatise, "Institutes of the Lawes of England," Coke described the common law as being "beyond the memory or register of any beginning." This compilation played a significant role in shaping the understanding and interpretation of common law.
Today, common law continues to be a significant aspect of the legal systems in many countries, including the United States, Canada, India, and Australia. It is often contrasted with civil law, which originated in mainland Europe and relies primarily on codes and statutes. Common law, on the other hand, emphasizes judicial precedent and the style of reasoning inherited from the English legal system.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Common law is more malleable than statutory law
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England, but it is still very much in effect in the US, Canada, India, Australia, and elsewhere today. Common law 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.
The value of a common-law system is that the law can be adapted to situations that were not contemplated at that time by the legislature. As the evolution of technology and its presence in our lives continues to grow, common law's ability to leave the legal code open for interpretation will become increasingly important. From time to time, common law has furnished the basis for new legislation to be written. For example, the U.K. has long had a common-law offense of "outraging public decency." In the last decade, the authorities have used this ancient common law to prosecute a new intrusive activity called upskirting.
Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints. Given that judges need only follow precedent when making decisions in common law systems, court proceedings can be much shorter, thereby saving everyone time and money.
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Common law promotes stability and consistency
Common law is a body of unwritten laws based on legal precedents. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. It places an emphasis on precedent while allowing some freedom for interpretation. Common law originated in medieval England, and today, several countries, including the US, Canada, India, and Australia, rely heavily on common law to resolve legal disputes.
The reliance on judicial opinion is a strength of common law systems, and it significantly contributes to the robust commercial systems in the United Kingdom and United States. Because there is reasonably precise guidance on almost every issue, parties, especially commercial parties, can predict whether a proposed course of action is likely to be lawful or unlawful and have some assurance of consistency. This ability to predict gives more freedom to come close to the boundaries of the law. For example, many commercial contracts are more economically efficient and create greater wealth because the parties know ahead of time that the proposed arrangement, though perhaps close to the line, is almost certainly legal.
Common law is also adaptable to the unforeseen. When lawmakers create statutes and rules, there is no way they can predict the countless situations in which courts may need to apply the laws. However, in common law systems, courts can address situations not originally predicted by lawmakers. This adaptability also makes common law flexible, as 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.
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Common law is based on societal customs
Common 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. The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning.
The value of a common-law system is that the law can be adapted to situations that were not contemplated at the time by the legislature. Common law is more malleable than statutory law. Common law courts are not absolutely bound by precedent, but they can reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal, and social philosophy. The common law evolves through a series of gradual steps, so that over a decade or more, the law can change substantially without a sharp break, reducing disruption.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law sometimes proves to be the inspiration for new legislation. For example, the UK has long had a common-law offence of "outraging public decency". In the last decade, the authorities have used this ancient common law to prosecute a new intrusive activity called upskirting.
The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. Today, the US operates under a dual system of both common and civil law. Common law is also practiced in Australia, Canada, India, Hong Kong, New Zealand, and the United Kingdom.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents and past court decisions. It is often contrasted with civil law, which is derived from codes and statutes.
Common law originated in England during the Middle Ages and was influenced by the canon law of the Christian church. It has since been adopted and adapted by various countries, including the US, Canada, India, and Australia.
Common law allows judges to interpret and apply past court decisions to similar cases, providing stability and consistency in the legal system. It also enables the law to adapt to new trends and situations not contemplated by the legislature.
