Kara Sears
The common law system, as we know it, started in England during the Middle Ages and has since spread to several countries around the world, including the US, Canada, India, and Australia. It is a body of unwritten laws based on legal precedents established by the courts, with the principle of stare decisis or precedent at its core. Common law is often applied in contract law and the law of torts. It promotes stability, efficiency, and consistency in legal systems and is known for its adaptability and flexibility. While it has its advantages, common law has also led to the marginalization and disempowerment of certain groups due to the influence of past decisions on future rulings.
| Characteristics | Values |
|---|---|
| Origin | England during the Middle Ages |
| Basis | Court decisions, not codes or statutes |
| Application | Contract law, law of torts, property law, inheritance law, etc. |
| Benefits | Stability, consistency, efficiency, adaptability, flexibility |
| Influence | USA, Canada, India, Australia, Hong Kong, New Zealand, UK, etc. |
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What You'll Learn
- Common law is a body of unwritten laws based on legal precedents
- Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries
- Common law promotes stability and consistency
- Common law is flexible and adaptable to unforeseen situations
- Common law has been administered by the common-law courts of England since the Middle Ages
Common law is a body of unwritten laws based on legal precedents
Stare decisis, or precedent, is a critical concept in common law. It refers to the practice of judges following previous decisions made by other judges in similar cases. This system of adhering to past rulings ensures stability and consistency in the legal system, as outcomes are based on previous case law rather than subjective viewpoints. The doctrine of precedent developed during the 12th and 13th centuries, evolving from tradition, custom, and precedent.
Common law is often applied in civil cases, particularly in areas of contract law and torts. It provides a means of compensating individuals for wrongful acts, including intentional torts and negligence. Common law is also relevant in commercial contracts, as it offers economic efficiency and clarity for parties involved. Additionally, common law has influenced the concept of common-law marriage, which grants similar rights to couples who are not officially married if specific conditions are met.
One advantage of common law is its adaptability to unforeseen situations. Unlike civil law, which relies on comprehensive codes and statutes, common law allows courts to address circumstances that lawmakers may not have predicted or legislated for. This flexibility enables the law to evolve with societal changes, as higher courts can overrule prior decisions deemed "bad law" without waiting for legislative action.
Common law has been criticised for its potential to marginalise or disempower certain groups due to the influence of past decisions on future rulings. Jeremy Bentham, for instance, introduced the term "judge-made law" to critique the legal profession's reliance on precedent. Despite such criticisms, common law remains a significant legal system, shaping the resolution of legal disputes worldwide.
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Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries
Common 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. It is a system of law that relies on case law and legal precedent to guide decisions, rather than relying on codes or statutes. Common law originated in England during the Middle Ages and was spread to North America during the colonial period of the 17th and 18th centuries.
The principle of stare decisis, a Latin phrase meaning "to stand by things decided", is central to common law. This means that judges are bound by the decisions of previous judges in similar cases and must adopt the same interpretation of the law. This creates a system that is consistent and stable, as outcomes are based on previous case law rather than subjective viewpoints.
The reliance on judicial opinion in common law systems is a strength, contributing to robust commercial systems in countries like the United States and the United Kingdom. Common law is adaptable and flexible, allowing courts to address situations not originally predicted by lawmakers. It is also efficient, as judges need only follow precedent, leading to shorter court proceedings.
However, common law has historically led to the marginalization of certain groups due to the influence of past decisions on future rulings. For example, common law in England until the 1970s entitled fathers, rather than mothers, to custody of children during divorce, effectively trapping women in marriages.
Common law continues to have practical applications in some areas of law, such as contract law and the law of torts. It also serves as the basis for legal systems in several countries, including the United States, Canada, India, and Australia.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Common law promotes stability and consistency
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system that draws from institutionalized opinions and interpretations from judicial authorities and public juries. The principle of stare decisis, a Latin phrase that means "to stand by things decided", is central to common law. This means that judges are required to follow the decisions and rulings of previous cases, also known as caselaw, when dealing with similar cases.
Secondly, common law promotes efficiency in court proceedings. Judges in common law systems can resolve disputes more quickly by relying on precedents, saving time and reducing legal fees for all involved. This efficiency also extends to the creation of statutes and rules. Lawmakers do not need to legislate every possible scenario, as common law allows courts to address situations not originally predicted by lawmakers, filling in gaps in the legislation.
Additionally, common law is adaptable and flexible. It can respond to changes in society without requiring lengthy legislative processes to amend statutes and codes. Higher courts in common law systems can overrule prior decisions as "bad law" without waiting for lawmakers to act, allowing for more rapid adjustments to outdated precedents.
Common law has its roots in England during the Middle Ages, and several countries, including the U.S., Canada, India, and Australia, continue to rely heavily on it when resolving legal disputes. While common law has its advantages, it is important to acknowledge that it has also led to the marginalization and disempowerment of certain groups due to outdated or biased precedents.
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Common law is flexible and adaptable to unforeseen situations
The common law system as we know it started in England during the Middle Ages. Even today, several countries, including the US, Canada, India, and Australia, rely heavily on common law when resolving legal disputes. Common law is a ""body of law"" based on court decisions and legal precedent, rather than codes or statutes.
Common law is also flexible because it can respond to changes in society. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes, which can be time-consuming. In common law systems, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act.
The flexibility of common law can encourage good judgment. In the R (Soma Oil and Gas Ltd) v Director of the SFO case, the judge considered the economic consequences of a judgment that put legal principle before pragmatism. The judge's decision to depart from precedent in this case was described as "fair, responsible, and most welcome".
However, critics of judicial lawmaking argue that it can lead to overreach and inconsistency. Jeremy Bentham, for instance, favoured codification and narrow judicial decisions. Proponents of common law respond that it draws on a rich repository of past decisions while remaining adaptable to the contemporary world.
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Common law has been administered by the common-law courts of England since the Middle Ages
The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government. Crimes were treated as wrongs, and compensation was made to the victim. The Norman Conquest did not bring an immediate end to Anglo-Saxon law, but a period of colonial rule by the mainly Norman conquerors produced change. Land was allocated to feudal vassals of the king, and serious wrongs were regarded mainly as public crimes punishable by death and forfeiture of property.
In the 12th century, there was a shift across northwestern Europe from local, informal power arrangements to formal government organised along bureaucratic lines. In England, this shift was characterised by the reign of Henry II (1154-89), during which the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas) were established in Westminster, London. Previously, the king's court had been itinerant, meeting wherever the king happened to be. Henry's reforms expanded royal justice throughout the country and across all classes, from freemen to the highest-ranking nobles.
The expanded system of royal justice that emerged in the late 1100s and the norms it upheld came to be called the 'Common Law'. This term initially referred to the law that was the same or 'common' throughout the country, as opposed to the diversity of regional or local law. The Common Law was conservative in terms of substantive law, incorporating customary norms of the law of crime, family, property, and inheritance. However, it was innovative in terms of procedure, emphasising written documentation (particularly royal 'writs'), the peaceful resolution of disputes, the use of local juries, and a clear hierarchy of courts.
Over time, a rule known as stare decisis (commonly known as precedent) developed, whereby a judge was bound to follow the decision of an earlier judge. This rule replaced the pre-Norman system of local customs and laws that varied by locality with a system that was, in theory, common throughout the country. The principle of stare decisis remains central to common law today, promoting stability and consistency by ensuring that court decisions are based on previous case law rather than subjective viewpoints. Common law also offers efficiency, adaptability, and flexibility, as it allows courts to address unforeseen situations without waiting for lawmakers to pass changes in statutes.
Common law has influenced the legal systems of many countries, including the United States, Canada, India, Australia, and most of the member states of the Commonwealth. However, it is important to note that while common law forms the basis of these legal systems, statutes are generally understood to supersede common law and may codify, create new causes of action, or overrule it.
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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 also known as case law.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It promotes stability and consistency in legal systems because everyone knows that the outcome will be based on previous caselaw and not on subjective viewpoints.
Common law as we know it today originated in England during the Middle Ages. It was then spread to North America during the colonial period (17th and 18th centuries).
Common law is used in several countries today, including the US, Canada, India, Australia, New Zealand, Hong Kong, and the United Kingdom.
