Gavin Howe
Common law is a body of unwritten laws based on legal precedents established by the courts. It is one of the two main legal systems used in the world, with the other being civil law. Common law is deeply rooted in stare decisis, which means to stand by things decided. This means that judges need to follow previous rulings when dealing with similar cases. Common law is primarily developed through judicial decisions rather than statutes, with the presiding judge determining which precedents to apply in each new case. Common law is used in many countries, including the United States, which was originally based on English common law.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Basis | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
| Jurisdiction | Common law is used in countries that were former British colonies or protectorates, including the United States. |
| Flexibility | Common law is flexible as it can respond to changes in society and higher courts can overrule prior decisions. |
| Stability and Consistency | Common law promotes stability and consistency as outcomes are based on previous caselaw rather than subjective viewpoints. |
| Efficiency | Common law is efficient as judges only need to follow precedent, leading to shorter court proceedings. |
| Adaptability | Common law can address unforeseen situations as it is not limited to statutes and rules created by lawmakers. |
| Judicial Decisions | Judicial decisions are binding and can only be overturned by the same court or through legislation. |
| Contractual Terms | Few provisions are implied in contracts under common law, so all terms must be explicitly stated. |
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What You'll Learn
Common law is a body of unwritten laws
Common law is one of the two main types of legal systems in the world, with many countries, particularly former British colonies or protectorates, adopting features of it into their own legal frameworks. This includes nations like the United States, Australia, Canada, India, and New Zealand. In the US, for example, every state except Louisiana operates under a common law system. Louisiana, previously a French colony, maintains a civil law system based on the French civil code.
The evolution of common law is influenced by societal customs and values, which judges interpret and apply through their rulings. This dynamic nature of common law allows for the adaptation of the law to changing social norms and the resolution of unusual cases where existing statutes may not provide clear guidance. However, it has also led to criticism and concerns about potential bias in judicial interpretations, particularly in historical contexts where certain marginalised groups faced disempowerment due to outdated societal beliefs.
While common law is unwritten in the sense that it is not codified in a comprehensive set of statutes, it is important to note that it is not entirely devoid of written form. Common law is documented in the form of judicial decisions, rulings, and legal precedents, which serve as the basis for future cases. This body of written precedents, often referred to as case law, guides judges in their interpretation and application of the law, contributing to the consistency and predictability of legal outcomes.
The distinction between common law and civil law lies in their sources of authority. Common law derives its authority from judicial decisions and precedents, while civil law relies primarily on codes and statutes created by legislators. Civil law systems provide a clear framework for judges, defining the cases that can be brought to court, the procedures to handle claims, and the corresponding punishments. In contrast, common law systems empower judges with more flexibility in interpreting and applying legal principles to unique circumstances, promoting consistency through adherence to stare decisis.
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Common law is deeply rooted in stare decisis
Common law is a body of unwritten laws based on legal precedents established by the courts. It is primarily developed through judicial decisions rather than statutes. Common law is deeply rooted in stare decisis, which means "to stand by things decided" in Latin. Stare decisis is the doctrine that courts will adhere to precedent when making their decisions. This doctrine is based on the idea that judicial rulings made in previous similar cases are to be followed in deciding each new case. The presiding judge determines which precedents to apply.
Stare decisis fosters predictable, unbiased, and consistent development in the law. It ensures that the law won't change randomly and that fundamental beliefs are based on the law rather than people's preferences. It also increases reliance on judicial decisions and adds to the integrity of the judicial process. For example, in the United States, the federal courts are required to defer to state court interpretations of state statutes.
The doctrine of stare decisis operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. Vertical stare decisis, on the other hand, refers to a court applying precedent from a higher court. For instance, an appellate court must abide by the decisions of the U.S. Supreme Court, which is the federal court of last resort with binding authority.
While stare decisis is a key principle in common law, it is not an "inexorable command". In certain situations, such as when prior decisions are "unworkable or badly reasoned", the U.S. Supreme Court may choose not to follow precedent, particularly in constitutional cases. This flexibility allows for the evolution of the law in response to changing societal norms and values.
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Common law is flexible
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 "to stand by things decided". Common law is flexible and adaptable to new developments and situations. It can be changed where necessary by distinguishing cases and setting aside outdated precedents. This flexibility allows common law to respond better than Acts of Parliament to unique cases that raise new dilemmas.
Parliament cannot predict every situation that may arise, so common law can treat each case individually, striving for a fair outcome for everyone involved. While Acts of Parliament provide a strong foundation for the law, they cannot account for every situation. Common law is needed to narrow this down and apply the law to specific cases.
The flexibility of common law is further enhanced by the fact that courts and judges are not elected, so they are not tied to a particular political party. This allows them to be more flexible in their approach to cases and to make decisions that may not be popular with the majority. They are not concerned with re-election, so they have more freedom to judge controversial cases.
Common law is also flexible in that it can be overridden at any time by legislation. Parliament is the supreme law-making body, and common law is considered inferior to legislation made by Parliament. This means that while common law can adapt to new situations, it is ultimately subject to the will of Parliament.
The flexibility of common law has both advantages and disadvantages. On the one hand, it allows for a more dynamic and responsive legal system that can adapt to new situations and strive for fair outcomes in unique cases. On the other hand, the flexibility of common law can lead to inconsistencies and criticisms of being undemocratic, as judges are appointed and not directly accountable to the people.
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Common law promotes stability and consistency
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". This means that judges need to follow previous rulings, or caselaw, when dealing with similar cases.
Secondly, common law systems can address situations not originally predicted by lawmakers. This adaptability to the unforeseen is an advantage over civil law systems, which rely solely on written codes and statutes. Common law can respond to changes in society without requiring lawmakers to pass changes in statutes, which can be a lengthy process.
Thirdly, because judges only need to follow precedent when making decisions, court proceedings can be shorter, saving time and money for all involved.
However, it is important to note that common law has also been criticised for its potential to marginalise or disempower certain groups. Past decisions based on outdated or biased viewpoints can continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. For example, in England, common law held until the 1970s that fathers were entitled to custody of the children in cases of divorce, effectively trapping women in marriages.
Today, several countries continue to rely heavily on common law when resolving legal disputes, including the United States, Canada, India, and Australia.
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Common law is efficient
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 "to stand by things decided". Common law is primarily developed through judicial decisions, where judges determine which precedents to apply in each new case. This is in contrast to civil law, which is a comprehensive, codified set of legal statutes created by legislators.
The efficiency of common law has been a topic of debate among scholars. Some argue that common law is efficient because it is based on the idea of allocating resources efficiently, typically in a Pareto or Kaldor-Hicks manner. This is known as the efficiency of the common law hypothesis, which suggests that common law rules have a comparative advantage over legislation due to their evolutionary selection through adjudication and the gradual accumulation of precedent. Judges are expected to make efficient laws, even without the apparatus of economic theory, as efficiency is a widely held value.
For example, negligence rules in common law settings provide a solution to Coase's problem of double causation. By holding the tortfeasor strictly liable, the victim is incentivized to take optimal precautions as they anticipate bearing the cost of the tort themselves. This results in efficient outcomes where both parties take the necessary precautions to avoid harm.
However, there are also arguments against the efficiency of common law. One example is the refusal to include the value of the victim's life in calculating damages for wrongful death, which can lead to inefficient outcomes. Additionally, the common law's historical bias and marginalization of certain groups have been criticized, as past decisions continue to shape future rulings until societal changes prompt a shift in interpretation.
In conclusion, while common law has been argued to be efficient in certain aspects, such as resource allocation and negligence rules, there are also instances where it falls short, such as in the calculation of damages and the potential for outdated precedents to result in unfair rulings.
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Frequently asked questions
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 "to stand by things decided".
Common law is made through judicial decisions rather than statutes. Judges present the precedents that apply to a case, influencing the criteria that a jury uses to interpret it.
Common law is one of the two main legal systems used in the world, the other being civil law. Countries that follow a common law system include the United States, which originally based its rules on English common law.
