Gavin Howe
Common law, also known as case law, is a system of law that originated in medieval England and is still widely practised in the US and other countries today. It is a body of unwritten laws based on legal precedents established by the courts. Common law is derived from case law, which is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. It draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common law is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators.
| Characteristics | Values |
|---|---|
| Name | Common law, also known as case law |
| Origin | Medieval England |
| Basis | Precedents, i.e. judicial decisions from previous cases |
| Application | Binding in common law jurisdictions, but may be deviated from or overturned |
| Nature | Unwritten law |
| Sources | Institutionalized opinions and interpretations from judicial authorities and public juries |
| Scope | Common law systems include Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and most U.S. states |
| Comparison to Civil Law | Contrasted with civil law, which is used in Continental Europe, Latin America, some African countries, and most countries globally |
| Evolution | Grows and changes over time, influenced by academic writings and technological advancements |
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What You'll Learn
Common law vs civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England and is still very much in effect in the US and elsewhere today. Common law systems trace their history to English common law, while civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law. Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and several US states, including California.
In a common law system, there is no official legal code that can be applied to a case, so the judge presiding over a case determines which precedents apply. The example set by higher courts is binding on cases tried in lower courts. However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. Civil law is the most common legal system globally, practised in about 150 countries, including Continental Europe, Mexico, most of Central and South America, and some African countries. It is characterized by its reliance on legal codes that function as the primary source of law. Civil law systems are more prescriptive, clearly defining the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence.
In a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts. In contrast, common law is less prescriptive, with few provisions implied into a contract. It is important to set out all the terms governing the relationship between the parties to a contract in the contract itself.
The primary contrast between the two systems is the role of written decisions and precedent as a source of law, which is one of the defining features of common law legal systems. While common law systems place great weight on precedent, civil law judges tend to give less weight to judicial precedent. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often interpret the wider legal principles. Decisions in civil law jurisdictions are generally shorter, referring only to statutes.
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The evolution of common law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems trace their history to medieval England, while civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law.
In the 13th century, the development of case law was influenced by Bracton's "On the Laws and Customs of England," which led to the yearly compilations of court cases known as the Year Books. These Year Books served as law reports, providing valuable insights into the evolving legal doctrines, concepts, and methods during the formative years of common law.
Over time, common law spread beyond England, particularly during the colonial period in the 17th and 18th centuries, influencing the legal systems in North America, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. In the United States, common law continues to play a significant role, with states like California codifying the law while retaining certain common-law traditions.
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Common law in the US
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is usually contrasted with the civil law system, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries including Egypt and the Francophone countries of the Maghreb and West Africa.
The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. Common law is still very much in effect in the US and elsewhere today. Common law in the US is derived from judicial decisions instead of statutes. American courts originally fashioned common law rules based on English common law. The US state of California has a system based on common law, but it has codified the law in the manner of civil law jurisdictions.
In the common-law system, courts decide the law applicable to a case by interpreting statutes and applying precedents that record how and why prior cases have been decided. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can apply to a case at hand. The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts. However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case.
Common law promotes stability and consistency in the US legal justice system. A precedent, known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases. In some instances, precedent depends on the case-by-case traditions of individual jurisdictions, resulting in elements of common law differing between districts.
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Common law in medieval England
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law originated in medieval England and is still in effect in the US and other countries today.
In the 13th century, Bracton's "On the Laws and Customs of England" laid the foundation for the early development of case law. This led to the creation of Year Books, which are annual compilations of court cases from medieval England. These Year Books serve as a valuable source of knowledge about the evolving legal doctrines, concepts, and methods during the 13th to 16th centuries, marking the transformation of common law into a recognizable form.
Medieval common law in England was a lively affair, characterized by oral debates, testimonies, oaths, and statutes recited from memory. Sound played a significant role in this era, with cries and proclamations used to announce statutes, legal processes, and judicial sessions. One notable example of the time's unique requirements is the "crying test," where a widower had to prove the birth of his child by presenting the infant crying within the four walls of his home.
Common law systems, like those in the US and other common law jurisdictions, contrast with civil law systems used in Continental Europe, Mexico, parts of Central and South America, and some African countries. Common law emphasizes the interpretation of statutes and the application of precedents, while civil law systems focus on written decisions and the creation of standardized codes to ensure consistent application across cases.
The evolution of technology and its increasing presence in our lives highlight the importance of common law's ability to leave the legal code open for interpretation. This adaptability will become increasingly valuable as society continues to advance.
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Common law in modern times
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense.
Common law originated in medieval England and was widely believed to derive its authority from ancient Anglo-Saxon customs until the early 20th century. Today, common law is still very much in effect in the US, the UK, and elsewhere, including Australia, Canada, Hong Kong, India, and New Zealand. In the US, the common law system evolved from British traditions during the 17th and 18th centuries, while former British colonies often adopt pre-independence common law through reception statutes.
In the modern era, common law continues to influence the decision-making process in unusual cases where existing statutes or written rules of law do not provide a clear outcome. It emphasizes precedent while allowing some freedom for interpretation, which is particularly important as technology evolves and its presence in our lives grows. Common law's ability to be interpreted will enable it to address situations not contemplated by the legislature.
Common law has also served as the basis for new legislation. For example, the UK has long had a common-law offense of "outraging public decency," which has recently been used to prosecute a new intrusive activity called "upskirting." Additionally, common law still has practical applications in areas such as contract law and the law of torts.
In summary, common law remains a significant aspect of legal systems in several countries, shaping judicial decisions and inspiring new laws. Its adaptability and reliance on precedent provide stability and consistency while allowing for the interpretation needed to address evolving societal issues.
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Frequently asked questions
Case law, also known as common law, is a law based on precedents or the judicial decisions of previous similar cases, rather than law based on constitutions, statutes, or regulations.
Case law uses the detailed facts of a legal case that has been resolved by a court or tribunal. Judges presiding over a case determine which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts.
Case law is used in common law jurisdictions including the US, the UK, Australia, Canada, Hong Kong, India, New Zealand, and California.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is the legal system used in most countries today. Common law, on the other hand, is an evolving body of doctrine determined by judges in specific cases.
