Keith Mack
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means to stand by things decided. In other words, common law is derived from customs and judicial decisions, rather than being created through statutory processes. It is a flexible system that can respond to changes in society and address situations not originally predicted by lawmakers.
| Characteristics | Values |
|---|---|
| Origin | Medieval England |
| Basis | Judicial decisions, customs and practices |
| Not | Made by the president and ratified by the Senate |
| Not | Supreme law of the land in the United States |
| Not | Authority to issue legal obligations on specific people or companies |
| Type of law | Precedent-driven |
| Type of law | Unwritten |
| Type of law | Flexible |
| Type of law | Open for interpretation |
| Type of law | Case law |
| Type of law | Court precedent |
| Type of law | Common law |
| Contrasts with | Statutory law |
| Contrasts with | Civil law |
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What You'll Learn
Common law is a body of unwritten laws
Common law originated in England following the Norman Conquest in 1066, when a unified legal system gradually replaced the local folk courts and manorial courts. It was then spread to Wales, Ireland, and the British colonies, including the United States, Canada, Australia, and New Zealand. Today, the US operates under a dual system of both common and civil law.
In a common law system, there is no official legal code that can be applied to a case. Instead, judges rely on detailed records of similar situations and statutes to determine which precedents apply to a particular case. This system promotes stability and consistency, as everyone involved knows that the outcome will be based on previous caselaw rather than subjective viewpoints. It also allows for adaptability and flexibility, as courts can address situations that were not originally predicted or contemplated by lawmakers.
However, the reliance on precedent in common law systems can also lead to the marginalization or disempowerment of certain groups, as past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. For example, in England, common law held that fathers were entitled to custody of the children in the event of a divorce, which kept women trapped in marriages.
In summary, common law is a body of unwritten laws that is based on legal precedents established by the courts. It promotes stability, consistency, and flexibility but can also lead to the marginalization of certain groups if societal changes are not adequately reflected in the law.
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It is derived from customs and judicial decisions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from customs and judicial decisions and is deeply rooted in stare decisis, which means "to stand by things decided". In other words, common law is based on the idea that judges should follow the decisions and rulings made in previous similar cases. This is known as case law or caselaw.
The common law, so named because it was common to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. Prior to the Norman Conquest, much of England's legal business took place in local folk courts, urban boroughs, merchant fairs, and manorial and seigniorial courts. The degree to which common law drew from earlier Anglo-Saxon traditions, such as the jury, ordeals, the penalty of outlawry, and writs, is still a subject of discussion.
In the 12th and 13th centuries, the doctrine of precedent developed, whereby judges were bound to follow the decisions and interpretations of earlier judges in similar cases. This replaced the pre-Norman system of local customs and laws that varied across localities. Henry II played a significant role in institutionalizing common law by creating a unified system of law common to the country, incorporating and elevating local customs to the national level.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It aims to establish consistent outcomes by applying the same standards of interpretation. In some instances, precedents may depend on the case-by-case traditions of individual jurisdictions, which can result in variations in elements of common law between districts.
Today, common law is still in effect in the US and other countries, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom, and Ghana. It provides flexibility in addressing unforeseen situations and adapting to changes in society. Common law's ability to leave the legal code open for interpretation becomes increasingly important as technology evolves and plays a greater role in our lives.
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Common law is deeply rooted in stare decisis
Common law, which originated in England following the Norman Conquest in 1066, is a body of unwritten laws based on legal precedents established by the courts. Common law is deeply rooted in stare decisis, which means "to stand by things decided" in Latin. Stare decisis, or precedent, is a history of judicial decisions that form the basis of evaluation for future cases. In other words, stare decisis is the doctrine that courts will adhere to precedent in making their decisions.
The English jurist William Blackstone described the English common law precedent doctrine as establishing a strong presumption that judges would follow prior precedents when the same issues arise in litigation, to promote legal stability. This idea of stare decisis is favored in judicial systems as it promotes stability and consistency, efficiency, adaptability, and flexibility. For example, it saves time and resources by preventing the need for subsequent litigation on the same issue. It also prevents judges from acting arbitrarily or with bias by requiring them to follow existing precedents.
Stare decisis operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. For example, if a court of appeals adheres to a previous ruling from the same court of appeals, that would be horizontal stare decisis. Vertical stare decisis, on the other hand, occurs when a court applies precedent from a higher court. For instance, if a federal court of appeals adheres to a previous ruling from the U.S. Supreme Court, that would be vertical stare decisis.
While stare decisis is a fundamental principle of common law, it is not an "inexorable command". In certain circumstances, courts may depart from precedent. For example, lower courts can modify or deviate from precedents if they are outdated or if the current case is substantially different. Additionally, the U.S. Supreme Court has explained that stare decisis may not be followed if prior decisions are "unworkable or are badly reasoned," particularly in constitutional cases.
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It originated in England after the Norman Conquest in 1066
The common law system in England began to develop after the Norman Conquest in 1066. Before the Norman Conquest, England's legal business took place in local folk courts in its various shires and hundreds. There were also urban borough and merchant fair courts, and large landholders held their own manorial and seigniorial courts.
The Norman Conquest brought about immense changes in the political, economic, social, and legal landscape of England. The Normans brought a class of capable administrators, many of whom were feudal vassals who owed allegiance to the king, centralizing government under King William's rule. The English kings established several centralized institutions, including the King's Court or the Regis Curia.
The royal courts established by the Normans slowly harmonized the divergent laws and practices that had characterized the Anglo-Saxon courts before the conquest. The greater contact between the royal courts helped develop similarities in interpreting the law, overlaying local variations with principles common to the nation at large. This gave rise to the term "common law", as it became common throughout England.
The consistent development of common law was promoted by the dominant position of the royal courts. The Curia Regis or King's Court assumed wide judicial powers, and several disputes were related to the occupation of land. This led to the development of the first "textbook" of English law, Littleton's Tenures, written by Sir Thomas Littleton and published in 1481.
Over time, the common law developed into a complex system of rules and principles, giving rise to the profession of lawyers. It established a unified legal system, gradually supplanting the local folk and manorial courts.
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Common law promotes stability and consistency
Common 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, but it is still in effect in the US and other countries today. Common law is deeply rooted in stare decisis, which translates to "to stand by things decided", where courts follow precedents established by previous decisions.
In common law systems, judges need only follow precedent when making decisions, so court proceedings can be much shorter, saving everyone time and money. This is in contrast to jurisdictions with weak respect for precedent, where consistency and prediction are more difficult, and procedures are more protracted because parties cannot rely on written statements of law as reliable guides.
Additionally, common law is adaptable to unforeseen situations. When lawmakers create statutes and rules, they cannot predict all the situations in which courts may need to apply the laws. However, in common law systems, courts can address situations not originally predicted by lawmakers. Common law is also flexible, as it can respond to changes in society without requiring lawmakers to pass changes in statutes and codes, which can be a lengthy process.
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Frequently asked questions
It is derived from customs and judicial decisions.
Common law is derived from customs and judicial decisions, evolving based on the outcomes of individual cases decided by judges. It is not created through statutory processes.
It is not the supreme law of the land in the United States.
Common law is not the supreme law of the land in the United States. That distinction is held by the Constitution, which is the supreme law.
It is flexible and adaptable to unforeseen situations.
Common law is flexible and adaptable because it can respond to changes in society. It is not limited by written codes or statutes and can address situations not originally predicted by lawmakers.
