Cameron Miranda
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law originated in England after the Norman Conquest of 1066, and was further institutionalized by King Henry II in 1154, creating a unified system of law common to the country. In the United States, common law was first established in Massachusetts after the American Revolution in 1776, and other states followed suit. Today, common law continues to influence the legal systems of the US and other countries, shaping the decision-making process in unusual cases where existing statutes or written rules do not provide a clear outcome. While there is no general federal common law, federal courts have created common law rules in certain situations, particularly in areas of federal interest such as foreign affairs.
| Characteristics | Values |
|---|---|
| Branch of government responsible for creating common law | Judicial branch and executive branch |
| Nature of common law courts | Adversarial system with two sides presenting their cases to a neutral judge |
| Example of contrast with civil law systems | Allocation of responsibility between prosecutor and adjudicator |
| Basis of agency decision-making in the US executive branch | Administrative Procedure Act of 1946 |
| Example of an agency issuing rules through common law | National Labor Relations Board |
| Countries with law based on English common law due to colonial influence | India, Pakistan, and Bangladesh |
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What You'll Learn
Common law is created by a judicial body
In a common law court, an adversarial system is used, with two sides presenting their cases to a neutral judge. For example, in criminal cases, the prosecutor and adjudicator are two separate people. The prosecutor is part of the executive branch and is responsible for investigating and locating evidence. They then present this evidence to the neutral adjudicator, who makes a decision based on the presented arguments and evidence.
On the other hand, civil law systems follow an inquisitorial system. In this system, an examining magistrate plays a dual role by both developing the evidence and arguments for one side and adjudicating the case. This differs from the common law system, where the judicial body's role is primarily adjudicatory, interpreting and applying the law based on the evidence and arguments presented by the opposing sides.
The creation of common law through judicial decisions and precedent contributes to the evolution of the legal system. Judicial bodies interpret and apply existing laws, establishing precedents that guide future decisions. This process allows for the development of a body of law that adapts to changing circumstances and societal needs. The common law system, with its reliance on judicial decision-making, promotes consistency and predictability in the law while also allowing for flexibility and growth.
In summary, common law is created and shaped by the decisions and precedents set by judicial bodies within the context of a separate judicial branch. This process ensures a neutral and impartial application of the law, contributing to the fairness and integrity of the legal system as a whole.
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Common law is based on legal precedents
Common law, also known as case 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 is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. The presiding judge determines which precedents to apply in deciding each new case.
Common law systems tend to give more weight to the separation of powers between the judicial branch and the executive branch. In contrast, civil law systems are typically more tolerant of allowing individual officials to exercise both powers. For example, in criminal cases in an adversarial system, the prosecutor and adjudicator are two separate people. The prosecutor is lodged in the executive branch and presents evidence to a neutral adjudicator, who makes a decision.
The doctrine of precedent developed during the 12th and 13th centuries as collective judicial decisions based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. 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.
In a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent. Lower courts can also choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case. However, lower courts rarely overturn precedents.
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Common law is unwritten law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common law is distinct from 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 offence. In contrast, common law systems give more weight to the separation of powers between the judicial branch and the executive branch. For example, in criminal cases, the prosecutor and adjudicator are two separate people, with the prosecutor presenting evidence to a neutral adjudicator who makes a decision.
The concept of common law can be traced back to medieval England and was widely considered to derive its authority from ancient Anglo-Saxon customs. It was defined as "unwritten law" (lex non scripta) in legal dictionaries until the 19th century. Sir Edward Coke (1552-1634) described common law as "beyond the memory or register of any beginning". William Blackstone, a prominent English jurist, also viewed common law as unwritten, deriving its authority from immemorial usage and "universal reception throughout the kingdom".
Today, common law is understood to mean law that is made by judges, independent of statutes. This modern interpretation was affirmed by the United States Supreme Court in Levy v. McCartee, which stated that common law is "the unwritten law of the land, independent of statutory enactments". Common law is still very much in effect today in countries such as the United States, the United Kingdom, Australia, Canada, and India.
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Common law is influenced by civil law
Common law is a body of unwritten laws based on legal precedents established by the courts. It is primarily contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. While common law systems give more weight to the separation of powers between the judicial and executive branches, civil law systems are more tolerant of allowing individual officials to exercise both powers.
Civil law takes as its major inspiration classical Roman law (c. AD 1–250) and, in particular, Justinian law (6th century AD). It was further expanded and developed in the late Middle Ages under the influence of canon law. Roman law was received differently in different countries, with some adopting it wholesale through legislative acts, while others allowed it to diffuse into society through influential legal experts and scholars. Over time, even local laws came to be interpreted and evaluated primarily on the basis of Roman law, as it was a common European legal tradition.
The work of civilian glossators and commentators led to the development of a common body of law and writing about law, a common legal language, and a common method of teaching and scholarship. This influenced the legal traditions of English-speaking countries, with the law of India, Pakistan, and Bangladesh being largely based on English common law due to the long period of British colonial influence during the British Raj.
However, civil law has also influenced common law systems. For example, the legal system of Japan, beginning in the Meiji Era, emulated European legal systems, especially the civil law of Germany and France. This, in turn, influenced the legal systems of former Japanese colonies like Taiwan and Korea. Similarly, while Dutch law was originally codified in the Napoleonic tradition, it has been heavily altered under the influence of Roman-Dutch law, which is still in effect in its former colonies.
In conclusion, while common law and civil law are distinct legal systems, they have influenced each other over time, with civil law influencing the development of common law in various countries and regions.
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Common law is derived from medieval England
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England, and is still in effect in the US and elsewhere today. In England, judges have devised rules to deal with precedent decisions, which are recorded in the Year Books, the principal source for knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when common law developed into a recognisable form.
The first attempt at a comprehensive compilation of common law was made in the 17th century by Lord Chief Justice Edward Coke, in his treatise Institutes of the Lawes of England. Coke described "the grounds of our common laws" as "beyond the memory or register of any beginning". According to William Blackstone, the unwritten law derived its authority from its "universal reception throughout the kingdom".
The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the reign of Alfred the Great (871), had developed a body of rules resembling those used by Germanic peoples in northern Europe. Local customs governed most matters, and the church played a large part in government. Crimes were treated as wrongs for which compensation was made to the victim. The Norman Conquest did not immediately end Anglo-Saxon law, but the period of colonial rule that followed produced change. Land was allocated to the king's feudal vassals, and serious wrongs were now treated as public crimes punishable by death and forfeiture of property.
In 1154, Henry II became the first Plantagenet king. He institutionalised common law by creating a unified system of law "common" to the country, incorporating and elevating local customs to the national level. This ended local control, eliminated arbitrary remedies, and reinstated a jury system. Henry II developed the practice of sending judges from his Curia Regis (king's court) to hear disputes throughout the country.
In the US, the federal courts were designed to be an "intermediate body between the people and their legislature", ensuring that the people's representatives acted within the authority given to Congress under the Constitution. The US Constitution is the nation's fundamental law, and the federal courts interpret its meaning, as well as the meaning of laws passed by Congress. The courts play an integral role in maintaining the rule of law, particularly when hearing the grievances voiced by minority groups.
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Frequently asked questions
Common law, also known as case law, is created by a judicial body, such as a court. In the US, this could be a federal court or a state court.
Common law is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalised opinions and interpretations from judicial authorities and public juries.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Common law, on the other hand, relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case.
Once a judge has ruled on a case, this decision becomes a precedent for future cases with similar circumstances. Over time, these precedents form common law.
