Anaya Nolan
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that originated in England and has since spread to various other countries, including the United States, Canada, Australia, and India. Common law is flexible and adaptable, allowing courts to address situations not originally predicted by lawmakers and respond to changes in society. It promotes stability and consistency in the legal system by relying on previous caselaw rather than subjective viewpoints. While common law systems place great weight on precedent, civil law systems, which originated in mainland Europe, focus primarily on codes and statutes. This distinction influences the role of judges and the weight they give to judicial precedent in their decision-making process.
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What You'll Learn
Common law in England
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law systems place great weight on precedent, while civil law judges tend to give less weight to judicial precedent. Common law is practised in the United Kingdom, Australia, Canada, Hong Kong, India, New Zealand, and the United States.
The English common law system has its roots in the Anglo-Norman legal system that came into force following the Norman Conquest in 1066. This system superseded and replaced the Anglo-Saxon law that had previously existed in England. The 12th and 13th centuries saw significant developments in common law, influenced by Roman law, which was studied by English lawmakers of the time. The first treatise on English common law, Tractatus de Legibus et Consuetudinibus Regni Angliae (A Treatise on the Laws and Customs of the Kingdom of England), was written between 1187 and 1189 by Ranulf Glanvil, a prominent lawyer and advisor to King Henry II.
In the medieval period, English common law was codified through judge-made laws and precedents created in the proceedings of Royal justices in the Circuit courts. This body of legal scholarship was first published in the 19th century as The History of English Law before the Time of Edward I. The law developed in England's Court of Common Pleas and other common law courts, which became the law of the colonies settled under the Crown of England and later the United Kingdom.
Although common law has historically been the foundation and prime source of English law, the most authoritative law today is statutory legislation, which comprises Acts of Parliament, regulations, and by-laws. In the absence of statutory law, common law forms the residual source of law, based on judicial decisions, custom, and usage. Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions.
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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. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It originated in the practices of the courts of English kings in the centuries following the Norman Conquest in 1066. Common law systems place great weight on precedent, while civil law judges tend to give less weight to judicial precedent.
The U.S. common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. English law exerted influence over American common law for several decades after independence. For example, in 1863, the case of Byrne v Boadle first applied the res ipsa loquitur doctrine.
Today, the US operates under a dual system of both common and civil law. Common law is found primarily at the state level, with a limited body of federal common law created and applied by federal courts. At the state level, legislatures often codify common law rules from the courts, either to give the rule the permanence afforded by a statute, to modify it, or to replace it entirely with legislation.
While common law systems rely on case law and legal precedent to guide their decisions, civil law systems rely primarily on codes and statutes. A civil system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. In the US, the principle of stare decisis remains constant in common law legal systems, meaning that prior court decisions interpreting a statute are precedent and therefore binding.
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Common law in other countries
Common 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, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a specific case. Common law originated in the practices of the courts of English kings in the centuries following the Norman Conquest in 1066. It is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law is regularly updated, and its goal is to create order and reduce bias in the system.
Common law forms the basis of the legal systems of many countries, especially those that were formerly colonized by England, Great Britain, or the United Kingdom. This includes Australia, Canada, Hong Kong, India, New Zealand, and the United States. The Caribbean jurisdictions of Antigua and Barbuda, Barbados, the Bahamas, Dominica, Grenada, Jamaica, St. Vincent and the Grenadines, Saint Kitts and Nevis, Trinidad and Tobago also follow common law, as do many other English-speaking or Commonwealth countries (with some exceptions, such as Scotland and Malta).
Some countries have mixed legal systems that incorporate elements of both common law and civil law. For example, Nicaragua's legal system is a mixture of English common law and civil law due to historical influences from British and US administrations. Similarly, Israel's legal principles resemble those of British and American law due to the influence of the British Mandate of Palestine, but it does not have a formal written constitution.
While the United States operates under a dual system of common and civil law, individual states and territories may lean more towards one system. For example, Louisiana and Puerto Rico partially follow civil law instead of common law. The US has also adopted codes similar to civil law systems in specific areas, such as bankruptcy, intellectual property, and tax law. The Uniform Commercial Code (UCC) is a notable example of a codified framework governing commercial law that has been enacted in all 50 states with some local variations.
In contrast, some countries that gained independence have retained the common law system inherited from their former colonizers. For instance, Ghana's 1992 Constitution enshrines English common law, and the doctrine of judicial precedence based on stare decisis is applied there.
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Differences between common law and civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. Common law systems place great weight on precedent, and judicial decisions are binding precedent. There are few provisions implied into a contract under the common law system, and it is important to set out all the terms governing the relationship between the parties to a contract in the contract itself. This often results in a longer contract than one in a civil law country. Common law systems are typically those that were former British colonies or protectorates, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is based on legal codes rather than judicial precedent, and civil law judges tend to give less weight to precedent. Civil law is regularly updated, and the goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case. There are many implied provisions in a contract under the civil law system, and less importance is placed on setting out all the terms in the contract itself. This often results in a shorter contract than one in a common law country. Countries following a civil law system are typically those that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America, Central and Eastern Europe, and East Asia.
In the United States, 49 states and the federal government use common law, while civil law has some influence in Louisiana due to the influence of other U.S. states. The United Kingdom also operates under a dual system of both common and civil law.
In summary, the key difference between common law and civil law is the role of written decisions and precedent as a source of law. Common law relies on judicial precedent and detailed records of previous cases, while civil law is based on codified legal statutes and gives less weight to precedent.
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The history of common law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is often contrasted with 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 offense.
In the centuries following the Norman Conquest, common law evolved and spread to other parts of the world. During the 17th and 18th centuries, the British tradition of common law spread to North America, influencing the legal system of what would become the United States. Well into the 19th century, ancient maxims that had originated in Roman Law and migrated to England before the introduction of Christianity to the British Isles continued to play a significant role in common law adjudication.
Today, common law is practiced in various countries, including the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand. While civil law systems have clear rules for judges to follow in specific disputes, common law systems rely on caselaw and legal precedent to guide their decisions. This means that judges in common law systems refer to previous court decisions and rulings, known as stare decisis, when dealing with similar cases. Common law promotes stability and consistency in the legal system, as it ensures that decisions are based on previous caselaw rather than subjective viewpoints. Additionally, common law is flexible and adaptable, as it allows higher courts to overrule prior decisions and address situations not originally predicted by lawmakers.
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Frequently asked questions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts.
Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom and the United States.
Common law relies on detailed records of similar situations and statutes. The judge presiding over a case determines which precedents apply to that particular case.
Common law systems place great weight on precedent, while civil law judges tend to give less weight to judicial precedent. Civil law is a comprehensive, codified set of legal statutes created by legislators.
