Cecily Zamora
Common law, also known as case law, is a body of law based on court decisions rather than codes or statutes. It relies on the principle of stare decisis, which means to stand by things decided. This means that courts and judges need to follow earlier decisions and rulings, or caselaw, when dealing with similar cases. Common law systems are used in several countries around the world, including those that were former British colonies or protectorates, such as the United States, Canada, India, and Australia. They are distinct from civil law systems, which rely primarily on codes and statutes. Common law promotes stability and consistency in the legal system and allows for efficiency in decision-making.
| Characteristics | Values |
|---|---|
| Based on court decisions rather than codes or statutes | Caselaw |
| Relies on detailed records of similar situations and statutes | There is no official legal code |
| Judicial decisions are binding | Decisions of higher courts are generally binding on lower courts |
| Extensive freedom of contract | Few provisions are implied into the contract by law |
| Generally, everything is permitted that is not expressly prohibited by law | |
| Stability and consistency | |
| Efficiency |
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What You'll Learn
Common law relies on stare decisis, meaning 'to stand by things decided'
Common law is a "body of law" based on court decisions rather than codes or statutes. It relies on stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law requires that courts and judges follow earlier decisions and rulings, or caselaw, when dealing with similar cases in the future. This means that the outcome of a case will be based on previous caselaw and not on subjective, personal viewpoints, promoting stability and consistency.
Stare decisis, or the principle of precedent, is a history of judicial decisions that form the basis of evaluation for future cases. In common law, judges determine which precedents apply to a particular case. Decisions made by higher courts are typically binding on lower courts in the same jurisdiction. For example, in the US, decisions made by the US Supreme Court are binding on lower US courts. However, lower courts can modify or deviate from precedents if they are outdated or if the current case is substantially different.
Common law systems are used in several countries around the world, including the US, Canada, India, and Australia, and Ghana. These countries typically were former British colonies or protectorates. In contrast, civil law systems are used in former French, Dutch, German, Spanish, or Portuguese colonies, as well as in much of Central and South America and Central and Eastern Europe.
While common law relies on caselaw and legal precedent, civil law systems rely primarily on codes and statutes. Civil law is a comprehensive, codified set of legal statutes created by legislators. It provides clear rules for handling claims and determining punishments for offenses. Common law, on the other hand, can be more complicated and time-consuming, requiring research and analysis of previous cases and statutes to determine the relevant principles and how they might apply to a current case.
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Common law is based on caselaw and legal precedent
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that relies on caselaw and judicial precedent to guide decisions, rather than relying primarily on codes and statutes. The principle of stare decisis, a Latin phrase that means "to stand by things decided", is central to common law. This means that judges need to follow earlier decisions and rulings, or caselaw, when dealing with similar cases.
The common law system promotes stability and consistency because everyone involved knows that the outcome will be based on previous caselaw rather than subjective viewpoints. It also provides efficiency as judges need only follow precedent when making decisions. In practice, this means that judges will look at earlier court rulings and decisions to determine what may be binding in the current case. The decisions of higher courts are typically binding on lower courts, and more recent decisions carry more weight than older ones.
Common law originated in the practices of the English king's courts following the Norman Conquest in 1066. It established a unified legal system across England and supplanted local folk and manorial courts. The doctrine of precedent, which is central to common law, developed during the 12th and 13th centuries, based on tradition, custom, and precedent. Over time, the traditions of common law have influenced the development of legal systems in several countries, including the United States, Canada, India, and Australia, and Ghana.
While common law relies primarily on caselaw and precedent, it is important to note that it is not a static system. In cases where there is no clear precedent or legislative guidance, judges are empowered to resolve the issue and establish new precedent. Additionally, lower courts can modify or deviate from precedents if they are outdated or if the current case is substantially different. However, the principle of stare decisis ensures that previous judicial decisions are respected and considered in future cases, providing a foundation for consistent and predictable legal outcomes.
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Common law is more complicated than civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It relies on detailed records of similar situations and statutes because there is no official legal code that can be directly applied to a specific case. In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This includes ascertaining the facts, locating relevant statutes and cases, extracting the principles, analogies, and statements by various courts, and determining how the next court is likely to rule on the facts of the present case. Common law promotes stability and consistency because everyone involved knows that the outcome will be based on previous caselaw rather than subjective viewpoints.
On the other hand, civil law is a comprehensive, codified set of legal statutes created by legislators. It originates from Roman law and features a written constitution based on specific codes that outline basic rights and duties. Civil law systems are generally more prescriptive than common law systems. They rely primarily on codes and statutes, with the decisions of judges interpreting the text of the code not being binding in later cases.
The complexity of common law arises from its reliance on caselaw and legal precedent. In common law systems, courts and judges need to follow earlier decisions and rulings, known as stare decisis, when dealing with similar cases. This means that prior court decisions interpreting a statute become precedent and are binding, even if a court is interpreting a statute and not applying common law directly. The process of finding relevant caselaw can be time-consuming and arduous, involving long hours of research. Additionally, common law has been criticised for leading to the unfair marginalisation or disempowerment of certain groups, as past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
In contrast, civil law provides a clearer framework with codified statutes, making it easier to determine the applicable laws and their interpretation. The comprehensive code of statutes in a civil law system outlines various aspects, including procedures for handling claims and punishments for offences. This clarity can make civil law more accessible and predictable, reducing the complexity associated with common law's reliance on judicial precedent.
While civil law offers a more structured approach, common law allows for more flexibility and adaptability. The absence of a rigid legal code in common law enables the interpretation of the law to evolve over time, accommodating technological advancements and societal changes. This flexibility can be advantageous for addressing novel or unusual cases where existing statutes or written rules of law do not provide a clear solution.
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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 relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a given case. In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This includes ascertaining the facts, locating relevant statutes and cases, and extracting principles, analogies, and statements by various courts. Decisions of higher courts or legislatures carry more weight than those of lower courts.
The reliance on judicial opinion is a strength of common law systems and contributes to robust commercial systems in some countries. Because there is reasonably precise guidance on almost every issue, parties can predict whether a proposed course of action is likely to be lawful or unlawful, and have some assurance of consistency. This predictability gives more freedom to come close to the boundaries of the law. For example, commercial contracts can be more economically efficient and create greater wealth because the parties know ahead of time that the proposed arrangement is almost certainly legal.
Common law also provides flexibility, as 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 take a long time or never happen. This adaptability allows common law to address situations not originally predicted by lawmakers.
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Common law is used in former colonies of British and other European countries
Common law is a legal system that relies on earlier decisions and rulings, or case law, as there is no official legal code that can be applied to a case at hand. It is based on the principle of stare decisis, which means "to stand by things decided". In other words, common law requires judges to follow earlier decisions and rulings, or case law, when dealing with similar cases.
Many former colonies of Britain and other European countries continue to use common law. For example, the United States, Canada, India, and Australia rely heavily on common law when resolving legal disputes. This is due to the adoption of common law in these countries during the period of British colonial rule. After the American Revolution, there was widespread distrust and hostility towards anything British, including common law. However, the Federalists believed that common law was the birthright of Independence, as the natural rights to "life, liberty, and the pursuit of happiness" were protected by common law.
Another example is Ghana, which follows the English common law tradition inherited from British colonisation. During the Napoleonic Wars, the British seized Dutch colonies in the Cape of Good Hope and Sri Lanka, then called Ceylon, to prevent them from being used as bases by the French Navy. As a result, Roman Dutch common law, which is based on Roman law sources and the writings of Dutch jurists, spread throughout British colonies in Southern Africa. Today, several countries in Southern Africa, including South Africa, Botswana, and Namibia, are Roman Dutch common law jurisdictions.
In addition to former British colonies, common law is also used in other former European colonies. For instance, outside the United States, parties in different jurisdictions often choose the law of England and Wales, particularly when they are in former British colonies and members of the Commonwealth. This highlights the continued influence of common law in legal disputes even beyond the direct context of British colonialism.
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Frequently asked questions
Common law relies on the principle of stare decisis, which means that judges are required to follow the decisions and precedents of previous rulings on the same or closely related issues.
Common law systems rely on case law and legal precedent to guide their decisions, whereas civil law systems primarily rely on codes and statutes.
In a common law system, the first step is to ascertain the facts of a case. Then, relevant statutes and cases are located, and principles, analogies, and statements by various courts are considered to determine how a court is likely to rule.
