Cameron Miranda
Common law is a body of unwritten laws based on legal precedents established by courts. It is also known as case law and draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is more malleable than statutory law, as common law courts are not absolutely bound by precedent, but can reinterpret and revise the law without legislative intervention. Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States.
| Characteristics | Values |
|---|---|
| Basis | Legal precedents established by courts |
| Nature | Unwritten laws |
| Sources | Judicial decisions, opinions, interpretations |
| Application | Unusual cases where the outcome cannot be determined based on existing statutes or written rules of law |
| Evolution | Gradual, malleable, adaptable |
| Court system | Adversarial system with two sides presenting their cases to a neutral judge |
| Record-keeping | Court records, yearbooks, law reports |
| Geographic application | United States, United Kingdom, Australia, Canada, Hong Kong, India, New Zealand, and member states of the Commonwealth |
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What You'll Learn
Common law is a body of unwritten laws
The concept of common law can be traced back to medieval England, and it spread to North America during the 17th and 18th centuries. Today, the United States operates under a dual system of both common and civil law, with every state except Louisiana having a common law legal system. Common law is also practiced in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
The simplest definition of common law, according to Black's Law Dictionary, is "the body of law derived from judicial decisions, rather than from statutes or constitutions." This definition emphasizes the key distinction between common law and civil law, with the former being based on court decisions and the latter on codes or statutes. Common law is sometimes referred to as "case law" or "judge-made law," highlighting the role of judges in shaping this legal system.
While common law provides flexibility and adaptability to new situations, it has also been criticized for its potential to marginalize or disempower certain groups. Past decisions in common law, such as those related to custody rights in divorce cases, have been biased and outdated, shaping future rulings until societal changes prompt a judicial body to overturn the precedent. This dynamic can make it challenging for marginalized parties to secure favorable rulings until popular thought or civil legislation shifts the interpretation of common law.
Common law is a dynamic and evolving legal system that plays a significant role in shaping the laws and decisions of many countries today. Its emphasis on precedent and judicial interpretation allows for flexibility and adaptability to new situations, but it also carries the risk of perpetuating biases and marginalization if societal changes are not adequately reflected in the interpretation of the law.
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Common law is based on legal precedents
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the doctrine of stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. The form of reasoning used in common law is known as casuistry or case-based reasoning. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
The concept of common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually replacing local folk courts and manorial courts. The main sources for the history of common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, the official court records for the Courts of Common Pleas and King's Bench, were written in Latin and are currently deposited in the UK National Archives. The doctrine of precedent developed during the 12th and 13th centuries as collective judicial decisions based on tradition, custom, and precedent.
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 presiding judge determines which precedents to apply in deciding each new case. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. However, in a case of first impression with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent.
Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. The law of India, Pakistan, and Bangladesh is largely based on English common law due to the long period of British colonial influence during the British Raj. Ancient India had a distinct tradition of law with an independent school of legal theory and practice. The Arthashastra, dating from 400 BCE, and the Manusmriti, from 100 CE, were influential treatises considered authoritative legal guidance.
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Common law is established by the courts
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that has been developed in England since the Middle Ages and has spread to various other jurisdictions, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and other members of the Commonwealth. Common law is established by the courts through a process of interpreting and applying legal precedents to new cases.
The common law system is based on the principle of stare decisis, which means that past judicial decisions are used as the basis for future decisions. This creates a body of law that is based on precedent and can guide court rulings when the outcome of a case is undetermined based on written rules of law. The courts are not absolutely bound by precedent, but they generally interpret and apply existing precedents to the facts of a new case to determine the appropriate outcome.
The common law system is typically contrasted with a civil law system, which is based on a written code of laws. In a civil law system, the courts interpret and apply the written code to determine the outcome of a case, rather than relying primarily on past judicial decisions. However, it is important to note that common law can also influence new legislation, and the two systems may coexist within a single jurisdiction.
Common law courts typically use an adversarial system, in which two sides present their cases to a neutral judge. For example, in criminal cases, the prosecutor and adjudicator are two separate people. The prosecutor presents the evidence to a neutral adjudicator, who makes a decision based on the facts and the relevant precedents. This is in contrast to the inquisitorial system used in civil law, where an examining magistrate plays a more active role in developing the evidence and arguments for both sides before presenting the findings to a judge.
The common law system is more malleable than statutory law, as it can evolve over time through a series of gradual steps. Courts can reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal, and social philosophy. This allows the law to change substantially over time while maintaining a sense of continuity.
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Common law draws from institutionalised opinions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common law relies on detailed records of previous similar situations and statutes because there is no official legal code that can be applied to a specific case.
In a common law jurisdiction, several stages of research and analysis are required to determine the law in a given situation. First, one must establish the facts, then locate any relevant statutes and cases, and then extract the principles, analogies, and statements by various courts. More recent decisions and those of higher courts or legislatures are generally given more weight than earlier cases and those of lower courts. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others.
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. This system promotes stability and consistency in the legal justice system. However, 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. Common law courts are not absolutely bound by precedent, and they can reinterpret and revise the law to adapt to new trends in political, legal, and social philosophy.
Common law decisions today reflect both precedent and policy judgment drawn from economics, the social sciences, business, decisions of foreign courts, and other fields and jurisdictions. The degree to which these external factors should influence adjudication is debated, but it is clear that judges do draw on experience and learning from everyday life.
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Common law is more malleable than statutory law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is derived from its original appearance in medieval England, but it is still very much in effect in the US and other countries today. Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
The malleability of common law can also be seen in its ability to furnish the basis for new legislation. For instance, the UK has long had a common-law offence of "outraging public decency". In recent years, this ancient common law has been used to prosecute a new intrusive activity called "upskirting". This example illustrates how common law can be interpreted and applied to address new challenges that may not have been anticipated when the original laws were established.
In contrast, statutory law is based on written rules and codes established by legislative bodies. While statutory law provides a clear and consistent framework, it may be less adaptable to changing circumstances. The process of amending or creating new statutes can be complex and time-consuming, requiring legislative debate and consensus. In the context of the interaction between common law and statutory law, Oliver Wendell Holmes Jr. cautioned that "the proper derivation of general principles in both common and constitutional law... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions".
The flexibility of common law allows it to serve as a dynamic and adaptable legal framework. It empowers judicial authorities to interpret and apply the law based on the unique circumstances of each case, filling in gaps that may exist in statutory law. However, it is important to note that the malleability of common law can also lead to inconsistencies in its interpretation and application, as different courts and jurisdictions may develop varying precedents and interpretations over time.
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Frequently asked questions
Common law is a body of law based on legal precedents established by the courts. It is also known as case law or judge-made law.
Common law originated in England in the Middle Ages in the King's Court (Curia Regis), a single royal court set up in Westminster, near London.
Roe v. Wade (1973) and Erie Railroad v. Tompkins (1938) are examples of common law in action.
Civil law relies on a comprehensive code of statutes that clearly outlines procedures for handling claims and punishments for offences. Common law, on the other hand, is more flexible and evolves through court rulings and judicial precedent.
Common law is followed in the United States, United Kingdom, Canada, Australia, India, New Zealand, and Hong Kong.
