Cameron Miranda
Common law definitions can be found in a variety of sources, including legal dictionaries, treatises, and commentaries. For example, the historical definition of common law as unwritten law (lex non scripta) can be found in legal dictionaries such as Bouvier's Law Dictionary and Black's Law Dictionary. A more modern definition of common law as case law or ratio decidendi is provided by writers such as A. V. Dicey, William Markby, and Oliver Wendell Holmes. Common law is also discussed in treatises such as Sir William Blackstone's Commentaries on the Laws of England, which was first published in the late 18th century, and law professor John Chipman Gray's The Nature and Sources of the Law. In addition, common law precedents can be found in law reports, such as the Massachusetts Reports, which served as a basis for the common law in newer states in the US, and law reports published by private sector publishers like West Publishing, which often include indexing, references to key principles, and editorial analysis. With the advancement of legal technology, online legal research tools like Westlaw Precision with CoCounsel now enable efficient filtering of caselaw by various parameters, making it easier to find relevant caselaw.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| History | Common law systems can be traced back to the Middle Ages in England. |
| Geographic Relevance | Common law is used in several countries, including the US, Canada, India, Australia, and some member states of the Commonwealth |
| Basis of Decisions | Common law relies on stare decisis, or following previous rulings and precedents, in contrast to civil law, which is based on written codes. |
| Sources of Law | Common law draws from judicial decisions, opinions of judicial authorities, and interpretations from public juries. |
| Legislative Influence | Common law can inspire new legislation, and statutes may codify, modify, or overrule common law. |
| Court System | Common law courts typically use an adversarial system, with a neutral judge evaluating cases presented by two sides. |
| Research Tools | Westlaw Precision with CoCounsel and Practical Law by Thomson Reuters are examples of tools that can aid in finding relevant caselaw and legal information. |
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What You'll Learn
Legal dictionaries
- Black's Law Dictionary: This is a well-known and respected legal dictionary that has been defining common law as "unwritten law" (lex non scripta) since the 19th century. It is a comprehensive resource for legal terms and concepts.
- Bouvier's Law Dictionary: Another reputable source for legal definitions, Bouvier's Law Dictionary also defined common law as "unwritten law" in the 19th century.
- Stroud's Judicial Dictionary: First published in 1890, Stroud's dictionary provides interpretations of words and phrases used in a legal context.
- Giles Jacob's Law Dictionary: Published in 1729, this early law dictionary offers definitions and explanations of legal terms and concepts.
- Online Legal Dictionaries: Websites like law.com offer free access to legal dictionaries, glossaries, and guides that define and explain various legal terms and concepts, including those related to common law.
These legal dictionaries are valuable resources for understanding common law and its associated terminology. They provide historical context, definitions, and interpretations that help clarify the complex nature of common law and its application in various jurisdictions.
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Common law jurisdictions
Common law legal systems can be traced back to England during the Middle Ages, and later spread to Wales, Ireland, and overseas colonies by the British Empire. Many former colonies, including the United States, Canada, India, and Australia, continue to rely heavily on common law. Approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law.
In common law jurisdictions, several stages of research and analysis are required to determine "what the law is" in a given situation. This involves ascertaining the facts, locating relevant statutes and cases, and extracting principles, analogies, and statements by various courts to predict how the next court will rule. The decisions of higher courts or legislatures carry more weight, and the decisions of a court are binding only in a particular jurisdiction.
Common law courts typically use an adversarial system, where two sides present their cases to a neutral judge. This is in contrast to civil law systems, which operate under an inquisitorial system where an examining magistrate serves dual roles in the investigation phase. Common law promotes stability, consistency, and efficiency by relying on previous caselaw rather than subjective viewpoints. It also adapts to unforeseen circumstances as judges can apply precedents to new situations.
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Common law court systems
Common law originated in England during the Middle Ages and spread to the British colonies. Many former colonies, such as the United States, Canada, India, and Australia, continue to rely heavily on common law when resolving legal disputes. Common law is more malleable than statutory law as common law courts can reinterpret and revise the law without legislative intervention.
In a common law court system, two sides present their cases to a neutral judge. For example, in criminal cases, the prosecutor and adjudicator are two separate people. The prosecutor is responsible for conducting the investigation and presenting the evidence to the neutral adjudicator, who then makes a decision. Common law courts are not absolutely bound by precedent, but they generally follow the principle of stare decisis, which means that previous decisions and rulings, or case law, are followed when dealing with similar cases.
To determine "what the law is" in a given situation, several stages of research and analysis are required. This includes ascertaining the facts, locating relevant statutes and cases, extracting principles and statements from various courts, and then applying the law to the facts at hand. Common law systems promote stability, consistency, efficiency, and adaptability, as they can address situations not originally predicted by lawmakers and respond to changes in society.
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Common law history
The history of common law dates back many centuries, with its roots in England during the Middle Ages. It originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court established for most of the country at Westminster, near London. 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 of judicial authorities and public juries.
The English common law system spread to North America during the 17th and 18th centuries, particularly during the colonial period. After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. As a result, newer states often looked to the Massachusetts Reports as a basis for their own common law. The United States federal courts relied on private publishers until after the Civil War, only transitioning to government publishing in 1874.
Today, several countries continue to rely heavily on common law when resolving legal disputes, including the United States, Canada, India, Australia, and several members of the Commonwealth. Common law jurisdictions typically maintain precedents over time through court records, historically documented in collections of case law known as yearbooks and law reports.
The evolution of common law over the centuries has been influenced by various factors, including the integration of European Union (EU) law in the United Kingdom, which began in 1973. Additionally, the United Kingdom's exit from the EU in 2020 and the passage of the Human Rights Act in 1998 have also impacted the development of common law in the country.
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Common law in modern times
Common law, a body of unwritten laws based on legal precedents established by the courts, continues to be practised in several countries today, including the US, Canada, India, Australia, New Zealand, and the UK. It originated in England during the Middle Ages, in the King's Court (Curia Regis), and has evolved into the legal systems found in the US and most Commonwealth countries.
In modern times, common law is generally understood to mean law that is independent of statutes, made by judges, and not the declaratory statutes of Blackstone's era. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It places an emphasis on precedent while allowing some freedom for interpretation, which is particularly important as technology continues to evolve and play a larger role in our lives. Common law's ability to leave the legal code open for interpretation will be increasingly important in adapting the law to situations that were not contemplated by the legislature.
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 courts usually use an adversarial system, in which two sides present their cases to a neutral judge. In criminal cases, the prosecutor and adjudicator are two separate people. The prosecutor is lodged in the executive branch and presents the evidence to a neutral adjudicator, who makes a decision.
Common law sometimes serves as 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.
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Frequently asked questions
The simplest definition of common law is that it is a "body of law" based on court decisions rather than codes or statutes.
A common-law system is a type of legal system now found in the United States and in most of the member states of the Commonwealth. It is based on customary law and has been administered by the common-law courts of England since the Middle Ages.
Civil law is a comprehensive, codified set of legal statutes created by legislators. Common law, on the other hand, is a body of unwritten laws based on legal precedents established by the courts.
Common law can be found in several countries around the world, including the U.S., Canada, India, Australia, Hong Kong, New Zealand, and the United Kingdom.
Common law definitions can be found in legal dictionaries such as Bouvier's Law Dictionary and Black's Law Dictionary. Additionally, online legal research tools such as Westlaw Precision with CoCounsel can help in finding relevant caselaw and legal definitions.
