Kara Sears
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that is independent of statutes and is derived from judicial decisions and interpretations. Common law is often contrasted with civil law, which relies primarily on codes and statutes. While civil law systems provide clear rules for judges to follow in specific disputes, common law systems give more weight to the separation of powers between the judicial and executive branches. Common law originated in medieval England and spread to North America during the 17th and 18th centuries. Today, it continues to be practiced in various countries, including the United States, Canada, India, Australia, and the United Kingdom.
| Characteristics | Values |
|---|---|
| Definition | "The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts." |
| Origin | Medieval England |
| Current usage | The US and the UK operate under a dual system of common and civil law. Other countries that use common law include Canada, India, Australia, Hong Kong, New Zealand, and Israel. |
| Basis | Court decisions, societal customs, and legal precedents |
| Nature | Independent of statutes and flexible to interpretation |
| Separation of powers | Emphasizes the separation of powers between the judicial branch and the executive branch |
| Adversarial system | Used in common law courts, where two sides present their cases to a neutral judge |
| Influence | Common law influences the decision-making process in unusual cases where existing statutes do not apply |
| Common-law marriage | Acknowledges similar rights to married couples for couples without a marriage license if certain conditions are met |
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What You'll Learn
Common law is derived from ancient customs
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from ancient customs and has evolved over time. Until the early 20th century, common law was widely considered to derive its authority from ancient Anglo-Saxon customs. This view was the foundation of the first treatises by Blackstone and Coke and was universal among lawyers and judges until the mid-19th century.
The "ancient unwritten universal custom" view, however, has been recognised by lawyers and judges in more recent times as not accurately reflecting the origin and growth of the law. Common law, as defined by West's Encyclopedia of American Law, is "the ancient law of England based upon societal customs and recognised and enforced by the judgments and decrees of the courts". This definition highlights the evolution of common law from societal customs to established legal precedents.
The first attempt to comprehensively compile centuries of common law was made by Lord Chief Justice Edward Coke in the 17th century. In the preface to the eighth volume of his Reports (1600-1615), Coke acknowledged the challenge of tracing the origins of common law, stating that "the grounds of our common laws" were "beyond the memory or register of any beginning".
According to William Blackstone's declaratory theory, common law reaffirmed pre-existing customs but did not create new laws. Jeremy Bentham criticised this aspect of common law by coining the term "judge-made law". Eventually, notable writers and legal professionals adopted the modern definition of common law as "case law" or "ratio decidendi", which serves as a binding precedent.
In summary, common law is derived from ancient customs that have evolved over time and been shaped by legal precedents, societal changes, and the interpretations of judges and legal scholars. While the specific origins of common law may be difficult to trace, its development and influence on legal systems worldwide are undeniable.
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Common law is also known as case law or ratio decidendi
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law or ratio decidendi, which serves as binding precedent. Common law is deeply rooted in the Latin principle of stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. This means that when a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.
The term "common law" comes from the fact that it was common to all the king's courts across England, originating in the practices of the courts of the English kings following the Norman Conquest in 1066. Prior to this, much of England's legal business took place in local folk courts, with various other individual courts also existing across the land.
Common law is typically contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law systems are in place 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. Common law systems, on the other hand, are in place in the United States (except Louisiana), the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand, among others.
Common law is flexible and adaptable, allowing judges to address situations not originally contemplated by lawmakers. It promotes stability and consistency because everyone involved knows that the outcome will be based on previous case law rather than subjective viewpoints. It also allows for efficiency, as judges need only follow precedent when making decisions, saving time and money.
In common law jurisdictions, 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 principles and analogies, and integrating all the information to determine the law in the present case.
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Common law is a body of unwritten laws based on legal precedents
The key characteristic of common law is its reliance on legal precedents, also known as stare decisis, which is a Latin phrase meaning "to stand by things decided". In a common law system, courts and judges follow previous decisions and rulings, known as case law, when dealing with similar cases. This means that common law is based on the accumulation of past legal decisions and the interpretation of these decisions by judicial authorities and public juries.
The concept of common law stands in contrast to civil law, which is the other major legal system used throughout the world. While common law relies on case law and legal precedent, civil law systems primarily depend on codes and statutes. Civil law, which originated in mainland Europe, is centred around a comprehensive code of statutes that outlines procedures and punishments. In a civil law system, judges are expected to follow these clear rules when ruling on specific disputes.
It is important to note that the term "unwritten" in the context of common law does not imply that there are no written records or statutes involved. Instead, it refers to the nature of common law as being independent of statutes. Common law is often influenced by institutionalized opinions and interpretations, and it can adapt to situations that were not contemplated at the time by the legislature. This flexibility allows for the evolution of the law and the creation of new legislation inspired by common law precedents.
Common law has been defined and understood differently over time. Until the early 20th century, it was widely considered to derive its authority from ancient Anglo-Saxon customs. Legal scholars, such as William Blackstone, contributed to the understanding of common law as the "ancient unwritten universal custom". However, this view has been reassessed, and it is now recognized that common law is not static but evolves through judicial decisions and the interpretation of precedents.
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Common law marriage acknowledges similar rights to married couples
Common law, also known as "case law", is a body of unwritten laws based on legal precedents established by the courts. In the modern usage of the term, it refers to law that is made by judges and is independent of statutes. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common-law marriage, also known as marriage without formalities or informal marriage, is an example of common law in action today. It acknowledges similar rights to married couples for couples that are not officially married if several conditions are met. For example, in the United States, common-law marriages are recognized in Texas, and ending such a marriage is similar to ending a formal marriage, requiring the filing for divorce.
The concept of common-law marriage has a wider informal use, often denoting relations that are not legally recognized as marriages. In England and Wales, the term is used to refer to unmarried, cohabiting heterosexual couples, but this usage does not confer on cohabiting parties any of the rights enjoyed by spouses or civil partners. Similarly, in India, the term "common-law marriage" has been used by the Supreme Court to refer to "a relationship in the nature of marriage", which does not carry the same rights as a legal marriage.
In some countries, common-law marriage is a valid and legal way for a couple to marry without a marriage license or ceremony. For instance, in Texas, a common-law marriage may be proved by evidence that the couple is of marriageable age, not already married, living together as a married couple, cohabiting voluntarily, and has done so for a significant period of time.
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Common law systems give more weight to the separation of powers
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. Common law is in effect in the US, the UK, Australia, Canada, Hong Kong, India, New Zealand, and many former British colonies.
Common law systems tend to emphasize the separation of powers between the judicial branch and the executive branch. This is in contrast to civil law systems, which are more tolerant of allowing individual officials to exercise both powers. For example, in common law criminal cases, the prosecutor and adjudicator are two separate people. The prosecutor, who is lodged in the executive branch, presents evidence to a neutral adjudicator, who makes a decision. In civil law systems, criminal proceedings follow an inquisitorial system in which an examining magistrate serves a dual role by first developing the evidence and arguments for one side and then acting as a neutral judge.
The separation of powers principle functionally differentiates several types of state power (usually law-making, adjudication, and execution) and requires these operations of government to be conceptually and institutionally distinguishable and articulated, thereby maintaining the integrity of each. This principle is reflected in constitutional provisions, notably those of the United States Constitution, which provide for a system of checks and balances between branches of government.
The Australian Constitution, for example, outlines a separation of powers between the legislative, executive, and judicial powers of the Commonwealth. The High Court of Australia ensures that judicial power is kept separate from legislative and executive powers, with the power to review government actions. Similarly, the United States federal courts procedurally separate law and equity, with different procedural rules for each.
In summary, common law systems give more weight to the separation of powers by structurally and institutionally dividing the judicial and executive branches, as opposed to civil law systems that allow for more overlap between these roles.
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Frequently asked questions
Common law is a branch of law that is considered unwritten and is based on legal precedents established by the courts.
Common law is a body of law based on court decisions rather than codes or statutes. It is a system that gives more weight to the separation of powers between the judicial and executive branches.
Common law systems rely on caselaw and legal precedent to guide their decisions, while civil law systems rely primarily on codes and statutes. Common law allows for interpretation and can be adapted to situations not contemplated at the time by the legislature.
Common law is practiced in the United States, Canada, India, Australia, the United Kingdom, Hong Kong, and New Zealand.
The US operates under a dual system of both common and civil law. All states except Louisiana have a common law legal system.
