Anaya Nolan
Common law is a body of unwritten laws based on legal precedents and past rulings. It originated in England after the Norman Conquest of 1066, with roots in Anglo-Saxon and Norman traditions. Common law has spread to many countries, especially those with historical ties to the UK, such as the US, Canada, Australia, and India. It is distinct from civil law, which originated in mainland Europe and relies on a comprehensive code of statutes. Common law is notable for its adaptability and flexibility, allowing it to address unforeseen circumstances and reflect shifts in cultural norms and values.
| Characteristics | Values |
|---|---|
| Origin | England after the Norman Conquest of 1066 |
| Basis | Local customs and court practices |
| Influenced by | Norman traditions and Anglo-Saxon law |
| Influenced regions | US, UK, Canada, Australia, India, etc. |
| Type of legal system | Common law and civil law |
| Marriage laws | Common-law marriage grants similar rights to couples not officially married |
| Flexibility | Can respond to changes in society |
| Binding | Court decisions are not binding in other cases |
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What You'll Learn
Civil law
Another difference between the two systems is that common law is a body of unwritten laws based on legal precedents established by the courts. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand. Common law places an emphasis on precedent while allowing some freedom for interpretation. This means that the law can be adapted to situations that were not contemplated at the time by the legislature.
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Roman law
The earliest Roman society, long before the establishment of the Roman Republic in 509 BCE, was governed by customary law (ius in Latin). This unwritten law, passed down through generations, was deeply rooted in the Etruscan religion and its rituals. It exclusively applied to Roman citizens, reflecting the principle of personality, where a state's laws applied only to its citizens.
The first written legal text of Roman law is the Law of the Twelve Tables, which dates back to the mid-fifth century BC. Its creation was prompted by social unrest and the desire to prevent arbitrary legal decisions by magistrates. A committee of ten men, known as the decemviri or decemvirs, was tasked with codifying the law. The Twelve Tables covered various areas, including civil law, public law, and religious law, and served as the foundation of Roman law.
As Rome transitioned from a republic to an empire, its legal system evolved to address the challenges of governing a diverse population, including citizens and foreigners. This led to the development of the ius gentium ("law of nations"), which applied to all people based on shared principles of civilized societies and natural law (ius naturale). The increasing complexity of Roman law gave rise to a new professional class of jurists, who focused on interpreting and generating formal opinions on the law.
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Canon law
With the fall of the western half of the Roman Empire in 476 CE/AD, the western or Roman Catholic Church also began to accord authority to the decrees issued by the Pope (or bishop of Rome). The earliest canonical collections are mixed up with the history of the versions, with the canons of Nicaea (325) and of Sardica translated and gathered in the collection Vetus Romana, which was in use at the beginning of the 5th century. The so-called Isidoriana, or Hispana Collectio-Versio, known in three recensions, was probably prepared in Rome between 419 and 451.
In the Catholic Church, canon law is the system of laws and legal principles made and enforced by the church's hierarchical authorities to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the church. Catholic Canonical jurisprudential theory generally follows the principles of Aristotelian-Thomistic legal philosophy. While the term "law" is never explicitly defined in the Catholic Code of Canon Law, the Catechism of the Catholic Church cites Aquinas in defining law as "an ordinance of reason for the common good, promulgated by the one who is in charge of the community".
In the Latin Church, positive ecclesiastical laws, based directly or indirectly upon immutable divine law or natural law, derive formal authority in the case of universal laws from the supreme legislator (i.e., the Supreme Pontiff), who possesses the totality of legislative, executive, and judicial power in his person, while particular laws derive formal authority from a legislator inferior to the supreme legislator. Canon law also provided the basis for university-level legal education in the emerging universities of the time, along with the neo-Roman Law that emerged after the rediscovery of Justinian's Body of Civil Law around 1100.
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US common law
The term "common law" is often used in contrast to Roman-derived "civil law", with the fundamental processes and forms of reasoning in the two being quite different. However, there has been considerable cross-fertilization of ideas, and while the two traditions and sets of foundational principles remain distinct, the first common law scholars were well-acquainted with Roman law. One of the earliest and most significant treatises of common law, De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), was heavily influenced by the division of law in Justinian's Institutes.
In the US, 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. It 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. However, in cases of first impression with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
Common law in the US is derived from judicial decisions rather than statutes. American courts originally fashioned common law rules based on English common law. Over time, the American legal system became mature enough to create common law rules from direct precedent or by analogy to comparable areas of decided law. While common law is not common in the US, several states have statutes or allow for common law marriage if certain requirements are met.
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UK common law
The UK legal system is founded on a dual framework of common law and statutory law, with each contributing distinct characteristics to the overall system. UK common law, also known as case law, is a body of unwritten laws based on legal precedents and judicial interpretations. It is derived from ancient customs and traditions that were gradually recognised and enforced by the courts. This system developed organically as judges relied on previous decisions to guide their judgments, a process known as the doctrine of stare decisis.
The origins of UK common law can be traced back to the early Middle Ages in the King's Court (Curia Regis), a single royal court established near London in Westminster. Initially, it did not consist of substantive rights but focused on procedural remedies. Over time, the evolution of these remedies led to the modern system, where rights take precedence over procedure. The common law of England was significantly influenced by the Norman Conquest of 1066, which introduced a centralised legal system. Prior to this, legal matters were often handled in local folk courts, urban boroughs, merchant fairs, and manorial courts held by large landholders.
The strength of common law lies in its adaptability and flexibility, allowing it to evolve alongside societal changes. Judges play a pivotal role in shaping UK common law through their interpretations, ensuring the law remains relevant and responsive to societal needs. This is in contrast to statutory law, which is created through legislation by Parliament and provides a more standardised set of rules. Common law enables judges to consider the unique circumstances of each case and make tailored decisions.
The doctrine of precedent, a core aspect of common law, relies on previous judicial decisions to guide current and future cases, establishing consistency and predictability within the legal framework. The main sources for the history of common law in the Middle Ages include plea rolls and Year Books, which were official court records written in Latin. The form of reasoning used in common law is known as casuistry or case-based reasoning.
While common law originated in England, it has since been adopted and adapted by various countries, including former British colonies, through reception statutes. These statutes consider English common law as the default law, providing a comprehensive and predictable legal framework for newly independent nations. Today, the UK operates under a dual system of both common and civil law, reflecting the ongoing significance and evolution of common law within the country's legal landscape.
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Frequently asked questions
Louisiana, a state in the US, is the only civil law state in the country. Its system is based on the French civil code that was in place before the US purchased the territory in the early 1800s.
Puerto Rico, a US territory, has a civil law system based on the Spanish civil code.
The United Kingdom has a dual system of both common and civil law.
India's common law system dates back to the British colonial era.
