Gavin Howe
Common law, also known as case law or judge-made law, is a body of law 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 based on the principle that judges should follow the decisions and rulings of previous similar cases when dealing with new ones. This type of legal system is found in the United States and in most Commonwealth countries, having evolved from the legal system administered by the courts of England since the Middle Ages.
| Characteristics | Values |
|---|---|
| Basis | Legal precedents, previous caselaw, and stare decisis |
| Development | Largely created after the Norman Conquest of 1066 |
| Sources | Judicial decisions, opinions, and interpretations |
| Influence | United States, United Kingdom, Canada, Australia, India, and more |
| Flexibility | Adaptable to changes in society |
| Efficiency | Shorter court proceedings, saving time and money |
| Contracts | Few implied provisions, requiring detailed terms |
| Stability | Consistent outcomes, not subjective viewpoints |
| Conviction | Released by the trial jury and president of the trial bench |
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What You'll Learn
Common law is a body of unwritten laws based on legal precedents
The common law system is distinct from a civil-law system, which is based on a comprehensive code of statutes that outline the procedures for handling claims and the punishments for offences. In a civil law system, judges are not bound by previous decisions when interpreting the text of the code, even if the facts are similar. In contrast, common law systems promote stability and consistency, as the ultimate outcome will be based on previous case law, rather than subjective viewpoints.
The doctrine of precedent, which forms the basis of common law, developed during the 12th and 13th centuries, emerging from collective judicial decisions that were based on tradition, custom, and precedent. Over time, common law has furnished the basis for new legislation, with common-law concepts sometimes being incorporated into new statutes. For example, the UK has long had a common-law offence of "outraging public decency", which was recently used to prosecute the intrusive activity of "upskirting". In February 2019, the UK Parliament passed the Voyeurism (Offences) Act, which officially criminalised upskirting.
Common law is currently practised in several countries, including Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. The US operates under a dual system of both common and civil law, and common law is not common among US states. However, several states do have statutes that allow for common law marriage, also known as a non-ceremonial marriage, where couples are considered married without having formally registered their union.
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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 deeply rooted in stare decisis, a Latin phrase that roughly translates to "to stand by things decided". This means that judges are bound to follow the decisions and rulings of previous similar cases, also known as case law. This practice promotes stability and consistency in several ways.
Firstly, common law provides stability and consistency by ensuring that the ultimate outcome of a case is based on previous case law rather than subjective, personal viewpoints. This means that all parties involved can predict the likely outcome of a case, as it will be based on established precedents rather than the individual interpretation of a judge. This predictability allows parties, especially commercial parties, to make informed decisions and take calculated risks, knowing the boundaries of the law.
Secondly, common law systems can address situations that were not originally predicted or legislated by lawmakers. This adaptability to the unforeseen ensures that the law can respond to changes in society and new scenarios that may arise. For example, in the UK, the common-law offence of "outraging public decency" has been used to prosecute a new intrusive activity called "upskirting", demonstrating how common law can adapt to modern issues.
Thirdly, the reliance on judicial precedent in common law systems contributes to the efficiency of the legal process. Judges only need to follow precedent when making decisions, which can shorten court proceedings, saving time and money for all involved.
Finally, common law promotes stability and consistency by providing a framework for consistent outcomes across different jurisdictions. While elements of common law may differ between districts due to case-by-case traditions, the overall goal is to apply the same standards of interpretation and achieve consistent results.
In summary, common law promotes stability and consistency by relying on stare decisis, ensuring outcomes are based on previous case law rather than subjective viewpoints. It provides a flexible framework that can adapt to changes in society and new scenarios, while also offering predictability and efficiency in the legal process.
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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 is deeply rooted in stare decisis
Common law is a body of unwritten laws based on legal precedents established by the courts. It is largely based on precedent, or in other words, judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
Horizontal stare decisis refers to a court adhering to its own precedent. For example, if the Seventh Circuit Court of Appeals adheres to the ruling of a previous Seventh Circuit Court of Appeals case, 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 the Federal District Court for the Southern District of New York adhered to a previous ruling by the Second Circuit, that would be vertical stare decisis.
Stare decisis promotes stability and consistency in the legal system as it ensures that the law won't change randomly. It also lessens the need for subsequent litigation, saving time and energy for the judiciary. Additionally, it prevents bias and arbitrary decision-making by requiring judges to follow existing precedents.
The English common law of the 18th century served as the foundation for the idea of stare decisis in American jurisprudence. The English jurist William Blackstone described the English common law precedent doctrine as establishing a strong presumption that judges would follow prior precedents to promote legal stability.
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Common law is flexible and adaptable
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law is based on the principle that courts and judges should follow earlier decisions and rulings when dealing with similar cases later. This provides stability and consistency to the legal system, as everyone involved knows that the outcome of a case will be based on previous caselaw rather than subjective viewpoints.
However, common law is not rigidly bound to past decisions. It is flexible and adaptable, able to respond to changes in society and address situations that lawmakers could not have predicted when creating statutes and rules. This flexibility is evident in the way that common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It allows for the consideration of the contemporary world outside of the law, encouraging good judgment and pragmatism. For example, conspiracy, often associated with fraud, was invented by courts in the 19th century to address contemporary problems.
The flexibility of common law is further demonstrated in its ability to inspire new legislation. For instance, the UK has long had a common-law offence of "outraging public decency". In recent years, this ancient common law has been used to prosecute a new intrusive activity called "upskirting". In 2019, the UK Parliament passed the Voyeurism (Offences) Act, officially criminalizing upskirting and highlighting the adaptability of common law to modern societal issues.
In addition to its adaptability, common law also offers efficiency. Since judges only need to follow precedent when making decisions, court proceedings can be shorter, saving time and resources. This efficiency is enhanced by legal tech advancements, such as Westlaw Precision with CoCounsel, which facilitates faster and more precise case law research.
Overall, the flexibility and adaptability of common law enable it to evolve with societal changes, address unforeseen situations, and inspire new legislation. It encourages good judgment by balancing respect for past decisions with the consideration of contemporary contexts.
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Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom
Common law is a body of law derived from judicial decisions, also known as case law, rather than statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous decisions. Common law originated in England and is practised in several countries, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
Australia
Common law in Australia is based on the English legal system, which was applied in the country in 1840. The Australian legal system is a combination of common law, which forms the basis of case law, and legislation passed by Parliament.
Canada
Canada's legal system is a mix of common law and civil law. Common law prevails everywhere in Canada except Quebec, where civil law predominates. Canada's constitution, the Constitution Act of 1867, is considered an uncodified constitution, similar in principle to that of the United Kingdom. Decisions from Commonwealth nations, aside from England, are often treated as persuasive sources of law in Canada.
Hong Kong
Hong Kong's legal system is a hybrid of civil law and common law, developed under British governance and based on English common law. The Hong Kong Basic Law, enacted in 1997, outlines the constitutional framework for the Hong Kong Special Administrative Region. It maintains the common law, rules of equity, ordinances, subordinate legislation, and customary law established before 1997, except for any laws that contravene the Basic Law.
India
The Indian legal system has a strong influence from the English common law system. During the colonial era, when India was under British rule, the English legal system shaped the foundation of modern Indian society. The current Indian Constitution provides that the judgments of the Supreme Court of India are binding on all courts within the country, demonstrating the adoption and development of common law principles within the Indian legal fold.
New Zealand
New Zealand's legal system is based on the English common law tradition and constitutional framework, which was implemented in the country in 1840. The courts in New Zealand enforce criminal law, resolve civil disputes, uphold individual rights, ensure government agencies act within the law, and explain the law. The Magna Carta, which restricted the power of the monarch, is still applied in New Zealand today.
United Kingdom
The United Kingdom, specifically England and Wales, operates a common law system that combines legislation passed by Parliament and the creation of precedents through case law. The Court System and case law are controlled by the judiciary, which is independent of Parliament. The House of Commons, directly elected by the people, and the House of Lords make up the legislative branch, along with the Monarch.
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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 or judge-made law.
Common law is based on the principle of stare decisis, which means "to stand by things decided". This means that judges are bound by the decisions of earlier judges in similar cases. Common law promotes stability and consistency and allows for adaptability and flexibility in the legal system.
Common law is used in countries that were formerly British colonies or protectorates, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. It is also used in most Commonwealth countries.
Civil law is a codified system of law that originates from Roman law. It is used in countries that were formerly French, Dutch, German, Spanish, or Portuguese colonies. Common law, on the other hand, is unwritten and based on judicial precedents. It is generally more flexible than civil law as it does not require lawmakers to pass changes in statutes and codes.
