Anaya Nolan
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. Common law is one of the most prevalent legal systems in the world, with approximately 40 countries and territories using it, and roughly 60 more using it as part of a mixed legal system. Common law originated in England following the Norman Conquest of 1066 and spread around the world as England built its empire. Today, common law is used almost exclusively by countries that were once British colonies, such as India, Ghana, and Canada.
| Characteristics | Values |
|---|---|
| Number of countries that use common law | Approximately 40 |
| Number of countries that use common law as part of a mixed legal system | Approximately 60 |
| Countries that follow common law on a national level | The United States, Canada, India, Ghana, England |
| Countries that use a single region that uses a civil law system | Louisiana (U.S.), Quebec (Canada) |
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What You'll Learn
Common law in former British colonies
Common law is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. It is also known as case law. Common law originated in England following the Norman Conquest of 1066 and spread around the world as England built its empire.
Today, common law is used almost exclusively by countries that were once British colonies. Many former colonies retain the common law system today, including India, Pakistan, Bangladesh, Ghana, and Nigeria. The United States also follows common law, though this was controversial in the years following the American Revolution due to widespread distrust and hostility towards anything British.
In the British colonies, common law was adapted to local circumstances. For example, in North America, the importation of African slaves required the implementation of laws regulating master-slave relations. In Australia, colonizers adopted the practice of terra nullius, or "nobody's land," ignoring native land claims and securing European land titles. In some colonies, such as India, the British East India Company brought English law to its trading posts, and local sovereigns recognised the right of foreign merchants to live under their own legal system.
Common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. This is known as the doctrine of stare decisis or precedent.
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Common law in the US and Canada
Common law, also known as case law, is a legal system where the main body of law is formed by court opinions, which play a crucial role in determining how laws are interpreted and applied. It is a system of rules based on precedent, where judges are guided by past decisions to make rulings on similar cases. Common law is often contrasted with civil law, which is more focused on written codes and statutes, and where previous court decisions do not necessarily influence the outcome of current cases.
The United States and Canada are two countries that follow the common law system on a national level. Canada's legal system is a combination of common law and civil law. The common law system in Canada evolved from its period as a colony of the British Empire, while civil law stems from its past as part of the French Empire. Common law prevails in Canada, except in Quebec, where civil law is used. The Criminal Code is used throughout Canada. In the US, common law processes are also used in most proceedings before federal and state agencies, at least in the initial stages.
In Canada, common law is developed by judges who interpret and apply statutes, setting precedents for future cases. Canada's judiciary plays a significant role in interpreting laws and can even strike down Acts of Parliament that violate the constitution. The Supreme Court of Canada is the highest court and the final arbiter. While Canada's criminal law is uniform across the country, law enforcement, including criminal courts, is a provincial responsibility, carried out by provincial and municipal police forces.
Canada is a federation with a central government and multiple provinces and territories, each with its own legislature. Laws enacted at the federal or provincial level are called statutes, legislation, or acts, and they take precedence over common law or precedents on the same subject. The process of lawmaking involves the federal or provincial legislature proposing a bill, which becomes law if approved by the House of Commons, the Senate, and the Governor General, who provides royal assent on behalf of the Queen.
In the US, the contrast between civil law and common law has become less distinct, with the increasing importance of statute law and codes in common law jurisdictions. For example, the Uniform Commercial Code (UCC) is a codified framework governing various aspects of commercial law. On the other hand, civil law countries are also adopting jurisprudence, similar to case law, making the two systems increasingly similar.
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Common law in India
Common law, also known as case law, is a legal system where the main body of law is formed by court opinions, which play a defining role in how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. Common law is often contrasted with civil law, which focuses more on written codes and statutes and has a reduced emphasis on established legal precedent.
India's legal system today is largely derived from the British system, with little correlation to the institutions of the pre-British era. Post-partition, India retained its common law system, and contemporary Indian law shows substantial European and American influence. Legislation first introduced by the British remains in effect today in modified form. During the drafting of the Indian Constitution, laws from Ireland, the United States, Britain, and France were all synthesized to produce a refined set of Indian laws. Indian laws also adhere to United Nations guidelines on human rights and environmental law, and certain international trade laws, such as those on intellectual property, are enforced in India.
India's legal system focuses on judicial decisions and considers them a source of law, but it also lays equal stress on codified law. While India's federal system exists in normal circumstances, it can convert into a unitary form of government in an emergency. In the case of contracts, the primary law governing the contract is that which is mentioned in the document itself. However, the contract law governs all contracts uniformly. Hence, India's legal system combines civil law and common law.
While India's Constitution is codified and written, and thus a form of civil law, the fact that the laws are flexible in nature is a feature of common law. This flexibility is derived from societal norms. India also has different laws for different communities based on their religion, faith, and beliefs, especially in matters such as marriage, divorce, inheritance, and adoption. There has been talk of a Uniform Civil Code (UCC), a single personal law for all citizens, but this has been resisted by both the country's Hindu majority and Muslims, the main minority.
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Common law in Ghana
Ghana is one of approximately 40 countries that use common law, with around 60 more employing it as part of a hybrid legal system. Ghana's use of common law is a result of its colonisation by Britain, with the laws of Ghana today being a modified version of imported British law, which has been adapted to fit the changing socio-economic and political landscape of the country.
The Bond of 1844 marked the period when Ghana, then known as the Gold Coast, ceded its independence to Britain and gave the British judicial authority. The Supreme Court Ordinance of 1876 then formally introduced British law, including common law, in the Gold Coast. Section 14 of the Ordinance formalised the application of the common-law tradition in the country. Ghana's current 1992 Constitution enshrines the use of common law in the country, and Article 125(3(3) states that the judicial power of Ghana is held by the Judiciary.
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. This is known as the doctrine of judicial precedence, or stare decisis. In Ghana, the Supreme Court is the final court of appeal, and while it treats its previous decisions as normally binding, it may depart from them if it deems it right to do so.
Ghana's court system consists of the Supreme Court, the Court of Appeal, the High Court, the Circuit Court, and the District Court, in descending hierarchical order. The country's laws comprise the Constitution, enactments made by or under the authority of the Parliament established by the Constitution, any Orders, Rules, and Regulations made by any person or authority under a power conferred by the Constitution, the existing law, and common law.
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Common law and civil law differences
Common law, also known as case law, is a legal system where the main body of law is derived from court opinions, which play a defining role in how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. Common law originated in medieval England following the Norman Conquest of 1066 and spread around the world as England built its empire. Today, common law is used almost exclusively by countries that were once British colonies, including the United States, Canada, India, and Ghana.
Civil law, on the other hand, focuses more on written codes and statutes, with less emphasis on established legal precedent. Civil law, which originated in France, is a system where the body of law is primarily derived from legal statutes and codes created by legislatures. In civil law, judicial authorities use the civil code to evaluate cases and reach decisions. Civil systems also clearly define the cases that can be brought to court, the procedures for handling claims, and the punishments for an offence. While civil law originally meant the law that applied to citizens, as opposed to religious law or military law, it now generally refers to non-criminal law in common law jurisdictions.
In a common law system, judicial decisions are binding precedent, and decisions of the highest court can generally only be overturned by that same court or through legislation. Common law systems have greater flexibility in granting different types of security over assets, which is an important feature of PPP arrangements involving commercial funding. They also have the concept of trusts, which enable security interests to be held by a trustee for lenders in syndicated loan situations without the need for formal transfer or re-registration of security interests in the names of new lenders.
In contrast, civil law does not have the concept of trusts, and security interests generally need to be re-registered in the name of the new lender, involving additional registration costs and notarial fees. Many civil law countries have a separate administrative law that governs PPP arrangements. In a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts. Civil law codes are often "comprehensive", meaning that anything not in the code is not considered law.
In conclusion, the main difference between common law and civil law lies in the sources of legal authority that each system prioritises. Common law prioritises judicial precedent and court opinions, while civil law emphasises written codes and statutes created by legislatures. While common law is prevalent in former British colonies, civil law has spread across continental Europe and other regions. Despite their differences, both systems share the goal of establishing consistent outcomes by applying uniform standards of interpretation to each case.
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Frequently asked questions
Common law is one of the most prevalent legal systems in the world. It is used almost exclusively by countries that were once British colonies, including the United States, Canada, India, Ghana, and the United Kingdom.
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions.
Approximately 40 countries and territories use common law exclusively. Roughly 60 more use it as part of a mixed legal system in which common law is blended with another form of law, such as civil, religious, or customary law.
