Kara Sears
Common law is a body of unwritten laws based on legal precedents established by the courts. It originated in England after the Norman Conquest in 1066, when King Henry II began sending judges around the country to resolve disputes and record their decisions. Over time, a rule known as stare decisis (to stand by things decided) developed, whereby judges were required to follow the decisions and interpretations of previous judges in similar cases. Common law is currently practised in the United States, the United Kingdom, Canada, Australia, India, and several other countries, most of which are former British colonies.
| Characteristics | Values |
|---|---|
| Origin | England, following the Norman Conquest in 1066 |
| Current use | US, UK, Australia, Canada, Hong Kong, India, New Zealand, and many other former British colonies |
| Basis | Precedent, also known as stare decisis ("to stand by things decided") |
| Flexibility | More flexible than civil law, as it can respond to changes in society |
| Adaptability | Can address situations not predicted or addressed by lawmakers |
| Efficiency | Court proceedings can be shorter, saving time and money |
| Contracts | Few provisions are implied, so contracts tend to be longer |
| Freedom of contract | Generally, everything is permitted that is not expressly prohibited by law |
| Judicial decisions | Decisions of the highest court can generally only be overturned by that same court or through legislation |
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What You'll Learn
Common law is deeply rooted in stare decisis, or precedent
Common law, which originated in medieval England, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the concept of stare decisis, which means "to stand by things decided" in Latin. Stare decisis is a fundamental principle of common law, holding that courts and judges should follow precedent, or prior decisions and rulings, when dealing with similar cases.
The doctrine of stare decisis promotes legal stability and consistency in the law. It requires judges to adhere to the decisions, rulings, and opinions of previous cases with similar facts or issues. This prevents arbitrary decision-making and gives predictability to the interpretation of the law. For example, if a court has previously ruled on a similar legal argument, the current court will align its decision with the previous ruling.
However, stare decisis is not an absolute rule, and there are exceptions to its application. For instance, judges may depart from precedent if following it would lead to unjust outcomes or if the previous decision is no longer applicable due to changes in society or technology. In such cases, judges may offer reasons or legal nuances to justify departing from precedent or overturning prior rulings.
The concept of stare decisis has horizontal and vertical dimensions. Horizontal stare decisis refers to a court following its own previous decisions or the decisions of courts at the same appellate level. Vertical stare decisis, on the other hand, involves lower courts adhering to the rulings of higher courts within the same jurisdiction.
Stare decisis also allows for flexibility in the legal system. In common law systems, courts can address situations not originally predicted by lawmakers and adapt to changes in society. This flexibility distinguishes common law from civil law systems, which rely on a comprehensive code of statutes that outline how judges should rule in specific disputes.
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Common law originated in medieval England
Common law, a body of unwritten laws based on legal precedents established by the courts, originated in medieval England. It is deeply rooted in the Latin term stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.
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. It established a unified legal system, gradually supplanting the local folk courts and manorial courts. England spread the English legal system across the British Isles, first to Wales, then to Ireland, and later to overseas colonies. Many former colonies retain the common law system today.
In the early Middle Ages, the English common law originated in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. Henry II developed the practice of sending judges to hear disputes throughout the country, and these judges would return to London to discuss their cases and decisions with other judges. These decisions would be recorded and filed, and over time, a rule known as stare decisis or precedent developed, whereby a judge would be bound to follow the decision of an earlier judge.
The early development of case law in the 13th century has been traced to Bracton's On the Laws and Customs of England and led to the yearly compilations of court cases known as Year Books, which are a principal source for knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when common law developed into a recognisable form.
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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 originated in the practices of the English king's courts following the Norman Conquest in 1066. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes, which can be time-consuming and may never happen. In common law systems, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to do so.
Common law is deeply rooted in stare decisis, which means "to stand by things decided". In practice, this means that courts and judges follow earlier decisions and rulings, also known as case law, when dealing with similar cases later. However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
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Common law is unwritten law
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 term that translates to "to stand by things decided". This means that judges follow precedents established by previous decisions, adhering to the interpretation and application of the law from earlier rulings when dealing with similar cases later.
Common law originated in the practices of the courts of English kings following the Norman Conquest in 1066. It established a unified legal system, gradually replacing the local folk courts and manorial courts. This system was spread to Wales and Ireland, and to overseas colonies, and later to North America during the 17th and 18th centuries. Today, common law is practiced in the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
Common law is not written down as statutes or ordinances but is based on customs, traditions, and previous court decisions. This allows for flexibility and adaptation to changing circumstances, as judges can interpret and apply the law according to the specific circumstances of each case. Common law is particularly useful in unusual cases where the outcome cannot be determined based on existing statutes, as it empowers judges to resolve issues and establish new precedents.
While common law is unwritten, it draws from institutionalized opinions and interpretations from judicial authorities and public juries. It aims to establish consistent outcomes by applying uniform standards of interpretation. However, as precedent may depend on the traditions of individual jurisdictions, elements of common law can differ between districts. This flexibility allows common law to respond to changes in society and adapt to unforeseen situations not contemplated by legislators.
In summary, common law is a dynamic and adaptable legal system that relies on unwritten laws and precedents established by the courts. It promotes consistency in decision-making while allowing for interpretation and evolution to meet the changing needs of society.
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Common law is based on judicial decisions
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 very much in effect in the US and other countries today. Common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually supplanting the local folk courts and manorial courts.
Common law is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. In a ""case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent.
Unlike civil law systems, common law doesn't require lawmakers to pass changes in statutes and codes. When it comes to common law, higher courts can—and sometimes do—overrule prior decisions as "bad law", and they don't need to wait for lawmakers to do so. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Similar to civil law, the goal of common law is to establish consistent outcomes by applying the same standards of interpretation. In some instances, precedent depends on the case-by-case traditions of individual jurisdictions.
Common law is also known as case law or judge-made law. It is a flexible system that can respond to changes in society. It is efficient, as judges need only follow precedent when making decisions, making court proceedings shorter and saving time and money. It is also adaptable to the unforeseen. When lawmakers create statutes and rules, there is no way they can predict all the situations in which courts may need to apply the laws. Common law systems allow courts to address situations not originally predicted by lawmakers.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It originated in England after the Norman Conquest in 1066 and is now practised in various countries, including the United States, Australia, Canada, and India.
Common law is deeply rooted in stare decisis, which means "to stand by things decided". In practice, this means that judges follow previous rulings, known as case law, when dealing with similar cases. This makes court proceedings more efficient and adaptable to unforeseen situations.
Civil law, which originated in mainland Europe, is a codified system of law based on a comprehensive code of statutes that outline procedures and punishments. It provides clear rules for judges to follow in specific disputes. In contrast, common law is more flexible and open to interpretation, allowing higher courts to overrule prior decisions without waiting for lawmakers to act.
Countries that follow a common law system are typically former British colonies or protectorates, including the United States, Canada, Australia, New Zealand, India, and most members of the Commonwealth. Some countries, like Guyana and Saint Lucia, have mixed common law and civil law systems.
