Gavin Howe
Common law is a legal system that originated in England following the Norman Conquest in 1066. It is a system of law based on decisions in cases by judges, also known as case law and stare decisis, or to stand by things decided. Common law is deeply rooted in precedent, where courts follow the decisions and rulings made in previous cases. Countries that follow a common law system are typically those that were former British colonies or protectorates, including the United States, Canada, India, Australia, and Ghana. However, not all countries that were colonized by England, Great Britain, or the United Kingdom use common law. Some countries, such as Quebec, South Africa, and Sri Lanka, retained their prior civil law system, which is the other major legal system in the world alongside common law. Civil law, which originated in mainland Europe, is a codified system of law that relies on codes and statutes rather than case law and precedent.
| Characteristics | Values |
|---|---|
| Definition | A "body of law" based on court decisions rather than codes or statutes |
| Basis | Caselaw and legal precedent |
| History | Originated in the practices of the courts of English kings following the Norman Conquest in 1066 |
| Colonies | Used by countries that were former British colonies or protectorates |
| Examples | US, Canada, India, Australia, Ghana, Kenya, Nigeria, South Africa |
| Exceptions | Countries formerly colonized by other nations, such as Quebec, South Africa, and Sri Lanka |
| Supreme Court | Decisions of the highest court can be overturned by that same court or through legislation |
| Contracts | Few provisions are implied into the contract by law |
| Actions | Everything is permitted that is not expressly prohibited by law |
| Comparison | Less prescriptive than a civil law system |
Explore related products
What You'll Learn
Common law countries are typically former British colonies
Common law is a legal system that originated in the practices of the courts of English kings following the Norman Conquest in 1066. It established a unified legal system that spread across the British Isles and was later exported to colonies of the British Empire. As a result, many countries that were formerly colonised by England, Great Britain, or the United Kingdom continue to follow common law today. These include the United States, Canada, Australia, India, Ghana, Kenya, Nigeria, and South Africa.
Common law is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In practice, this means that courts follow precedents established by previous decisions. When a similar case arises, courts typically align their reasoning with the precedent set in previous decisions. However, in cases of first impression with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
One notable feature of common law is that it is less prescriptive than civil law. In a common law system, everything is permitted unless expressly prohibited by law. This is in contrast to civil law systems, which are based on a comprehensive written set of laws covering various areas of law. Civil law systems are typically found in countries that were formerly French, Dutch, German, Spanish, or Portuguese colonies, including much of Central and South America, as well as Central and Eastern European and East Asian countries.
While most former British colonies follow common law, there are some exceptions. For example, Quebec, South Africa, and Sri Lanka were formerly colonies of other nations and retained their prior civil law systems to respect the civil rights of local colonists. Guyana and Saint Lucia have mixed common law and civil law systems. Additionally, Scotland and Malta, despite having been part of the British Empire, are bijuridicial and follow a mix of civil law and their own unique systems of common law.
In summary, common law countries are typically former British colonies that inherited and adapted the English legal system during colonisation. Today, these countries continue to follow common law, which is characterised by its reliance on stare decisis and judicial precedent. However, it's important to note that the retention and adaptation of legal systems after colonisation is a complex process that may involve the influence of multiple colonial powers and the protection of local rights.
The United Nations: Lawmakers or Peacekeepers?
You may want to see also
Explore related products
$22.99
Common law is deeply rooted in stare decisis
Common law is a legal system used in countries that were formerly colonies or protectorates of England, Great Britain, or the United Kingdom. Common law is deeply rooted in stare decisis, a Latin term meaning "to stand by things decided". It is also known as the doctrine of precedent.
Stare decisis was developed in the 1180s when Henry II sent judges from his Curia Regis to hear disputes throughout the country. These judges would resolve disputes ad hoc according to their interpretation of the customs. Upon returning to London, they would discuss their cases and decisions with other judges, and these decisions would be recorded and filed. Over time, a rule emerged whereby a judge would be required to follow the decision of an earlier judge if the two cases had similar facts.
Stare decisis dictates that courts will adhere to precedent in their decision-making. When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, the court will align its decision with the previous court's decision. This applies both horizontally, where a court adheres to its own previous decisions, and vertically, where a court adheres to the decisions of a higher court.
The doctrine of stare decisis lessens the need for subsequent litigation and saves time and energy for the judiciary by preventing the same legal issue from being continually re-litigated. It also fosters predictable, unbiased, and consistent development of legal principles, increases reliance on judicial decisions, and adds to the integrity of the judicial process.
In some cases, however, courts may depart from stare decisis. For example, in the United States, the Supreme Court has stated that stare decisis is not an "inexorable command" and that it may depart from precedent in cases where prior decisions are "unworkable or are badly reasoned", particularly in constitutional cases.
Attorneys General: Can They Override Laws?
You may want to see also
Explore related products
Common law countries include the US, Canada, India, and Australia
Common law is a legal system that originated in the practices of the courts of English kings following the Norman Conquest in 1066. It established a unified legal system that gradually replaced local folk courts and manorial courts. Common law is deeply rooted in stare decisis, which means that courts follow precedents established by previous decisions.
In common law countries, judicial decisions are binding and can only be overturned by the same court or through legislation. There is also extensive freedom of contract, with few provisions implied into a contract by law. This means that all terms governing the relationship between the parties must be set out in the contract itself.
The US, Canada, and India have supreme courts with the power of judicial review, which allows them to strike down legislation as unconstitutional. This shift towards the American model of judicial review was influenced by the US Supreme Court's landmark decisions on racial segregation and individual rights in the 1950s and 1960s.
Australia, as a common law country, has a federal system and individual states and territories that also follow common law. It is also known for its strong regulatory framework for legal services, particularly in the globalized and consolidated professional services sector.
Explore Career Options with a Sports Law Degree
You may want to see also
Explore related products
Common law vs civil law
Common law and civil law are two primary types of legal systems in the world. Common law, also known as case law, is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. Civil law, on the other hand, is primarily rooted in Roman law and is a codified system of law. It takes its origins from the legal codes of the Roman Empire, which were comprehensively codified and disseminated starting in the 19th century, particularly with France's Napoleonic Code.
Common law systems are typically found in countries that were formerly British colonies or protectorates, including the United States, Canada, Australia, India, Ghana, Kenya, Nigeria, and South Africa. In these countries, judicial decisions are binding and can generally only be overturned by the same court or through legislation. Common law systems are less prescriptive, allowing everything unless expressly prohibited by law. Contracts in common law systems tend to be longer, as they must set out all the terms governing the relationship between the parties since few provisions are implied by law.
Civil law systems, on the other hand, are prevalent in former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America, Central and Eastern European countries, and East Asian countries. Civil law is generally more prescriptive, and contracts tend to be shorter since they rely on legal codes as the primary source of law. In civil law, judges give less weight to judicial precedent and may even be forbidden from pronouncing general principles of law, as in the case of the Napoleonic Code.
Another key difference is the treatment of infrastructure projects. In civil law jurisdictions, a separate administrative law often governs PPP arrangements, and certain forms of infrastructure projects are referred to by well-defined legal concepts that may not apply in common law countries. In civil law, the contract will be enforced by the administrative courts unless the parties have agreed to arbitration.
While common law and civil law systems have distinct characteristics, some countries have mixed systems. For example, Guyana and Saint Lucia have blended common law and civil law systems, while Scotland combines elements of an uncodified civil law with its own common law. Additionally, some countries' supreme courts, like those in Latin America, mix elements of the US and French models, creating a blend of common law and civil law traditions.
Martial Law: Can Trump Still Enact It?
You may want to see also
Explore related products
![RULES OF EVIDENCE [DESK REFERENCE & CASE SUPPLEMENT]: Trial Tactics, Strategic Checklists, Flowcharts, and Practical Tools for Courtroom Success](https://m.media-amazon.com/images/I/71IfTncWCHL._AC_UY218_.jpg)
Common law is flexible and adaptable
Common law is a legal system that originated in England during the Middle Ages, after the Norman Conquest in 1066. It is a body of unwritten laws based on legal precedents established by the courts. Common law is deeply rooted in stare decisis, a Latin term that translates to "to stand by things decided", which means that courts follow precedents established by previous decisions. This means that when a similar case arises, courts will generally align their reasoning with the precedent set in the previous decision. However, in cases where there is no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent.
Secondly, common law is flexible in that 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 a lengthy and sometimes impossible process. In common law systems, higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers to make changes. This flexibility allows common law to evolve and adapt to changing socio-economic and political realities. For example, Ghana's legal system is based on English common law inherited from British colonisation. After gaining independence, Ghana chose to retain the common law system, which has since been adapted to suit the country's changing needs and has been enshrined in its 1992 Constitution.
Additionally, common law is adaptable in that it can fill gaps in the law. When lawmakers create statutes and rules, they cannot predict all the situations in which courts may need to apply those laws. Common law systems address this by allowing courts to address situations not originally predicted by lawmakers. For example, in German law, leasing was not specifically addressed in the Civil Code. By drawing on rules from both sales and leases, case law and literature derived rules for leasing, thus filling a gap in the law.
Overall, the flexibility and adaptability of common law lie in its reliance on legal precedent, interpretation, and the ability of higher courts to overrule previous decisions. These features allow common law to evolve and adapt to changing social, economic, and political circumstances.
Whistleblower Laws: Protection for Non-Employees?
You may want to see also
Frequently asked questions
Countries that follow a civil law system are typically those that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America, most of Central and Eastern Europe, and East Asian countries.
Common law systems rely on caselaw and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Civil law, which originated in mainland Europe, centers around a comprehensive code of statutes that outlines everything from the procedures for handling claims to the punishment for offenses.
Common-law countries are typically those that were former British colonies or protectorates, including the United States, Canada, Australia, India, Ghana, Kenya, Nigeria, and South Africa.
