Cecily Zamora
Common law, also known as judicial precedent, judge-made law, or case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin phrase that means to stand by things decided. Common law originated in medieval England and is still in effect in the US and other countries today. Countries that follow a common law system are typically former British colonies or protectorates, including the US, Canada, India, and Australia.
| Characteristics | Values |
|---|---|
| Origin | Medieval England |
| Basis | Precedent, judicial rulings made in previous similar cases |
| Influence | United States, Canada, India, Australia, England, Scotland, Pakistan, Bangladesh |
| Pros | Stability, consistency, efficiency, adaptability, flexibility |
| Cons | Bias, may keep women trapped in marriages |
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What You'll Learn
Common law in the US
Common law, also known as judicial precedent, judge-made law, or case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law is based on the idea that courts and judges need to follow earlier decisions and rulings when dealing with similar cases.
Common law originated in medieval England, and while it is still very much in effect in the US, it is not a pure common law system. The US has many codified statutes that courts must consider when applying common law principles. However, the principle of stare decisis remains constant in US common law legal systems. This means that even when interpreting a statute and not directly applying common law, prior court decisions interpreting that statute are considered precedent and are therefore binding.
Common law is particularly relevant at the state level in the US, where legislatures often codify common law rules from the courts of their state. This can involve modifying or expanding the scope of the common law rule or replacing it entirely with legislation. For example, in 2018, the California Supreme Court issued a decision articulating a three-part test for determining whether California workers were independent contractors or employees. In response, the California Legislature created a new section in the Labor Code that codified and expanded on the court's holding, which went into effect in 2020.
The adaptability and flexibility of common law allow it to address situations not originally predicted by lawmakers and respond to changes in society. This is particularly important as technology continues to evolve and play a growing role in our lives. However, it is important to note that common law is not the only legal system used today. Many countries, including the US, also use a civil law system, which relies primarily on codes and statutes rather than legal precedent.
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Common law in Canada
Canada's legal system is based on a combination of common law and civil law. Common law, which is not written down as legislation, evolved into a system of rules based on precedent. This is a rule that guides judges in making later decisions in similar cases. The common law can only be found in past decisions, and not in any code or body of legislation. It is adaptable to changing circumstances because judges can announce new legal doctrines or change old ones.
Canada has separate federal and provincial legal systems. Each province and territory is considered a separate jurisdiction with respect to case law. The rest of Canada outside of Quebec uses the common law system. Quebec is the only province with a civil code, which is based on the French Code Napoléon (Napoleonic Code). The common law system in Canada was brought by explorers and colonists in the 17th and 18th centuries. After the Battle of Quebec in 1759, the country fell under English common law, except for Quebec, which follows civil law.
Common law status in Canada varies by province and legal context. In most provinces, common-law relationships are recognised after 1 to 3 years of continuous cohabitation or if the couple has a child together. In Quebec, common-law relationships are often referred to as de facto unions, and are recognised for tax purposes after at least two years of living together. For federal tax purposes, 'living common-law' refers to couples who have been living together for 12 continuous months or who share a child by birth or adoption.
In Canada, common law also refers to a person living with someone who they are not legally married to, but are in a conjugal relationship with. Common law spouses are not treated the same as legally married spouses in most places in Canada. Outside of BC, Manitoba, Saskatchewan, and Northwest Territories, a common-law partner would not have the same inheritance under succession laws as a married spouse.
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Common law in India
India's legal system is a combination of common law and civil law. When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law. Post-partition, India retained its common law system, and legislation first introduced by the British is still in effect in modified form today.
The common law system, as we know it, started in England during the Middle Ages. Common law 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. It is deeply rooted in stare decisis, which 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.
India focuses on judicial decisions and considers them a source of law, but it also lays equal stress on codified law. The Indian Constitution is supreme and is codified and written, which means that the primary governing law in India is codified. However, such codification is flexible in nature, and this flexibility is derived from societal norms.
There is a push for a Uniform Civil Code (UCC) or a single personal law for all citizens irrespective of religion, sex, gender, and sexual orientation. However, this has been resisted by both the country's Hindu majority and Muslims. The UCC would need to answer some fundamental questions, such as the criteria for marriage and divorce, the processes and consequences of adoption, and the rights to maintenance or just division of wealth in the event of a divorce.
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Common law in Australia
Common law, also known as judicial precedent, judge-made law, or case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". In other words, common law is centred around the idea that courts and judges need to follow earlier decisions and rulings when dealing with similar cases.
Common law was introduced to Australia through colonisation by the British. By 1824, a court system based on the English model had been established through Acts of the British Parliament. The New South Wales Act 1823 provided for the establishment of a Supreme Court with the power to deal with all criminal and civil matters. This was followed by the Australian Courts Act 1828, which ensured that all English common and statute law up to 28 July 1828 was to have effect in New South Wales and Tasmania, and later Victoria and Queensland. The reception of English law in Western Australia and South Australia was deemed to have occurred later, on 1 June 1829 and 28 December 1836, respectively.
Despite the presence of indigenous inhabitants, Australia was considered a "settled" colony, and as a result, English common law was applied instead of recognising indigenous laws. Prior to colonisation, the only systems of law in Australia were the varied systems of customary law belonging to Indigenous Australians, which have only been recognised to a limited degree in the post-colonial era.
Today, Australia is unusual among common law countries in not having a Constitutional Charter or Bill of Rights. However, common law courts in Australia have the power to provide significant protection of human rights principles, including the rule of law, except where specific legislation overrides this power. Common law principles in Australia contain concepts intended to provide protection for children and people with disabilities, and there is a presumption that legislation is intended to be consistent with international law obligations and human rights treaty obligations.
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Common law in former British colonies
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". Common law originated in England during the Middle Ages and was spread to the British Isles, Wales, Ireland, and overseas colonies. Many former colonies, including the United States, Canada, India, Australia, and various other territories, continue to retain and rely on the common law system today.
When India became part of the British Empire, Hindu and Islamic law were replaced by common law. Post-partition, India, Pakistan, and Bangladesh retained their common law systems, which were heavily influenced by British colonial rule. The present judicial system in these countries derives largely from the British system and has little correlation with the pre-colonial legal traditions. For example, the Indian Constitution synthesizes laws from Ireland, the United States, Britain, and France, reflecting a blend of common law and international guidelines on human rights and environmental law.
In North America, the importation of African slaves during colonial times led to the implementation of European-designed laws governing master-slave relations. The Australian colonies adopted the terra nullius doctrine, denying native land claims and securing European land titles. The British East India Company brought English law to its trading posts in India, and the company's legal authority expanded to include legal cases involving both European and indigenous subjects.
The impact of common law in former British colonies has been examined in territories such as Barbados, Jamaica, Botswana, Nigeria, Kenya, Burma, and Singapore. The transplantation of common law provided these societies with institutional tools that promoted strong development outcomes. However, the diversity of modern rule-of-law indicators among these former colonies suggests that other dynamics of the colonial institutional environment may have influenced their legal trajectories.
In conclusion, common law, originating in England, has had a lasting impact on the legal systems of many former British colonies. While some adaptations were made to suit local circumstances, the foundational principles of stare decisis and judicial precedent remain influential in the legal traditions of these countries today.
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Frequently asked questions
Common law is in effect in the US, Canada, India, Australia and other countries that were former British colonies or protectorates.
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means that courts and judges need to follow previous rulings when dealing with similar cases.
Common law systems rely on case law and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Civil law is a codified system of law that centres around a comprehensive code of statutes that outlines everything from procedures for handling claims to the punishment for offences.
