Kara Sears
The common law system, as we know it, started in England during the Middle Ages and has been administered by the courts of England since. It is a body of customary law based on judicial decisions and embodied in reports of decided cases. Many basic legal principles, such as the definition of a contract, and the basic definition of many crimes and torts, are derived from common law. Common law systems rely on case law and legal precedent to guide their decisions, as opposed to civil law systems, which rely primarily on codes and statutes. Common law systems can be found in many countries around the world, including the United States, Canada, India, and Australia, and in most member states of the Commonwealth.
| Characteristics | Values |
|---|---|
| Definition | Common law is a "body of law" based on court decisions rather than codes or statutes. |
| History | Common law has its roots in England during the Middle Ages. |
| Sources of Law | Common law is based on judicial decisions, precedent, and the style of reasoning inherited from the English legal system. |
| Flexibility | Common law is flexible and can respond to changes in society. Judges can reinterpret and revise the law without legislative intervention. |
| Stability and Consistency | Common law promotes stability and consistency as outcomes are based on previous case law rather than subjective viewpoints. |
| Efficiency | Common law allows for shorter court proceedings as judges only need to follow precedent, saving time and money. |
| Influence | Common law has influenced the legal systems of many former colonies, including the United States, Canada, India, Australia, and Commonwealth countries. |
| Differences from Civil Law | Common law stands in contrast to civil law, which originated in mainland Europe and relies primarily on codes and statutes rather than judicial precedent. |
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What You'll Learn
The evolution of common law
Common law, a body of customary law based on judicial decisions and embodied in reports of decided cases, has been administered by the courts of England since the Middle Ages. The evolution of common law can be traced back to the twelfth century when northwestern Europe transitioned from local, informal power arrangements to a formal government with bureaucratic institutions. This period witnessed the reign of England's King Henry II (1154-1189), who established permanent royal courts, including the Court of the King's Bench and the Court of Common Pleas, in Westminster, London. Henry II's reorganisation of royal justice expanded geographically and socially, encompassing all classes from freemen to the highest-ranking nobles.
The term "common law" initially referred to the uniformity of laws throughout the country, in contrast to diverse regional or local laws. This emerging national legal system was conservative in terms of substantive law, preserving customary norms in areas such as crime, family, property, and inheritance. However, it introduced innovations in terms of procedure, emphasising written documentation, particularly royal writs, promoting peaceful dispute resolution, utilising local juries, and establishing a clear hierarchy of courts.
The early development of case law in the thirteenth century is attributed to "Bracton's On the Laws and Customs of England," leading to the publication of the first extant Year Book in 1268. These Year Books, or law reports of medieval England, provide valuable insights into the evolving legal doctrines, concepts, and methods from the 13th to the 16th centuries, when common law developed into a recognisable form. During this period, judge-made common law served as the primary source of law until Parliament acquired legislative powers to create statutory law.
Common law is characterised by its reliance on judicial precedent and its evolution through a series of gradual steps. This allows for adaptability to new trends in political, legal, and social philosophy without causing disruptive sharp breaks in the legal system. The malleability of common law distinguishes it from statutory law, as common law courts possess the authority to reinterpret and revise laws without legislative intervention.
The influence of English common law spread beyond England, first to Wales in 1536, and then to Ireland and overseas colonies, including those of the later British Empire. Today, many former colonies continue to retain the common law system, and approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law. The legal systems of the United States and most Commonwealth countries have evolved from English common law, showcasing its enduring impact and global reach.
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Common law in former colonies
Common law, which is based on judicial decisions and embodied in reports of decided cases, has been administered by the courts of England since the Middle Ages. The common law, so named because it was common to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. England spread the English legal system across the British Isles, first to Wales, then to Ireland, and later to overseas colonies; this was continued by the later British Empire. Many former colonies retain the common law system today, including the United States and most Commonwealth countries. These common law systems are legal systems that give great weight to judicial precedent and the style of reasoning inherited from the English legal system.
The transplantation of common law to its colonial territories conferred upon such societies the institutional tools necessary to promote the subsequent achievement of strong development outcomes. However, the modern rule of law indicators among former British colonies vary, and the dynamics of the colonial institutional environment may explain such divergent results. For example, an investigation of the colonial experiences of eight formerly British-controlled territories (Barbados, Jamaica, Botswana, Nigeria, Kenya, India, Burma, and Singapore) revealed that the processes and policies of the colonial enterprise affected their respective contemporary rule of law outcomes.
Two features of colonial administration and legal transplantation are theoretically important in promoting a long-run, stable commitment to legality in these countries: the degree of representation in legislative bodies afforded to the indigenous population, and the extent to which indigenous and British common law courts and animating values were integrated, fostering the development of a localized common law jurisprudence.
A reception statute is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts pre-independence common law to the extent not explicitly rejected by the legislative body or constitution of the new nation. Outside the United States, parties that are in different jurisdictions from each other often choose the law of England and Wales, particularly when the parties are each in former British colonies and members of the Commonwealth.
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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 vs civil law
Common law is a legal system that originated in medieval England and is now used in many former British colonies or protectorates, including the United States. It is based on judicial decisions and precedent, with judges interpreting and applying the law to the facts of each case. Common law is more malleable than civil law, as judges can reinterpret and revise the law without legislative intervention.
In contrast, civil law is a legal system rooted in the Roman Empire and later disseminated through Napoleonic and Germanic codes. It is the most common legal system globally, practised in about 150 countries. Civil law relies on comprehensive legal codes as its primary source of law rather than judicial precedent. Civil law is more prescriptive than common law, with more provisions implied into contracts.
One key difference between the two systems is their approach to precedent and written decisions. Common law places great weight on judicial precedent, recognising prior court decisions as legally binding. In civil law, judges tend to give less weight to precedent and may be expressly forbidden from pronouncing general principles of law, as in the Napoleonic Code.
Another distinction is the level of prescription in each system. Common law is less prescriptive, requiring all terms governing the relationship between parties to be set out in a contract. In civil law, ambiguities or inadequacies in a contract can be resolved by operation of law, resulting in shorter contracts.
In terms of infrastructure projects, a government under a common law system may need to enact specific legislation to protect its citizens, such as prohibiting the discontinuation of essential services for non-payment. In a civil law system, certain infrastructure projects may be referred to by well-defined legal concepts, reducing the need for detailed contracts.
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Common law in modern times
Common law, a body of customary law, is based on judicial decisions and embodied in reports of decided cases. It has been administered by the courts of England since the Middle Ages. The English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. The common law of England was largely created in the period after the Norman Conquest of 1066.
Many former colonies retain the common law system today. These common-law systems are legal systems that give great weight to judicial precedent and the style of reasoning inherited from the English legal system. Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law. Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
In modern times, common law is generally understood to mean law that is independent of statutes. More specifically, this is understood to mean law that is made by judges, not the declaratory statutes of Blackstone's era. Common law still has practical applications in some areas of law, such as contract law and the law of torts. It is a body of unwritten laws based on legal precedents established by the courts. 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.
Common law places an emphasis on precedent while allowing some freedom for interpretation. 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. Common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy.
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Common law and precedent
Common law is derived from the English legal system, which was spread across the British Isles and later to overseas colonies by England, and then by the British Empire. Many former colonies, including the United States, Canada, India, and Australia, continue to use a common law system today. Common law is a body of customary law based on judicial decisions and embodied in reports of decided cases. It is often contrasted with civil law systems, which originated in mainland Europe and centre around a comprehensive code of statutes.
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. This flexibility allows common law to adapt to new trends in political, legal, and social philosophy. The common law evolves through a series of gradual steps, allowing the law to change substantially over time without causing disruption.
In common law systems, courts can address situations not originally predicted by lawmakers. This flexibility is a significant advantage of common law systems. Common law is also considered more efficient than civil law systems, as judges in common law systems only need to follow precedent when making decisions, which can save time and money.
However, one potential drawback of common law is that it may be influenced by subjective factors. While common law promotes stability and consistency by relying on previous case law, judges in common law systems have the power to make new laws and impose new duties, which may introduce subjectivity into the legal system.
Overall, common law and precedent are deeply interconnected. Precedent plays a crucial role in common law systems, providing stability and consistency by ensuring that similar cases are treated similarly. However, the flexibility of common law allows for the evolution of legal principles over time and the adaptation to changing societal needs.
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Frequently asked questions
Common law is derived from England, specifically from the Middle Ages.
England spread the English legal system across the British Isles, then to Ireland and overseas colonies, which was continued by the later British Empire. Many former colonies retain the common law system today.
Civil law systems rely primarily on codes and statutes, whereas common law systems rely on caselaw and legal precedent to guide their decisions. Civil law originated in mainland Europe.
Common law promotes stability and consistency as the outcome will be based on previous caselaw and not on subjective, personal viewpoints. Common law is also efficient as court proceedings can be shorter, saving time and money.
