Cameron Miranda
Common law is a body of customary law that is based on judicial decisions and reports of decided cases. It has been administered by the common-law courts of England since the Middle Ages. The English common law system has directly influenced the legal systems in the United States and most Commonwealth countries. In 1154, Henry II became the first Plantagenet king and institutionalized common law by creating a unified system of law common to the country. Common law stands in contrast to civil law, which is widespread in continental Europe. It also differs from statute law and the rules applied in English and American courts of equity.
| Characteristics | Values |
|---|---|
| Basis | Judicial decisions |
| Sources | Official texts, unofficial texts, and reports of decided cases |
| Influence | Legal systems in the US, UK, and most Commonwealth countries |
| History | Administered by English courts since the Middle Ages |
| Development | Evolved from local customs and law to a unified system across the country |
| Precedent | Judges considered each other's decisions binding, creating precedent |
| Flexibility | Allows for creative arguments and interpretation of statutes |
| Commercial advantage | Provides predictability and consistency for commercial parties |
| Criticism | Judicial lawmaking criticized by Jeremy Bentham and others |
| Modern role | Still applicable in areas like contract law and law of torts |
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What You'll Learn
Common law's origin and development
Common law is law derived from judicial decisions instead of statutes. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous rulings. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.
The English common law, which originated in the King's Court (Curia Regis) in the early Middle Ages, was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large role in government. Crimes were treated as wrongs for which compensation was made to the victim. The Norman Conquest did not immediately end Anglo-Saxon law, but a period of colonial rule by the mainly Norman conquerors produced change. Land was allocated to the king's feudal vassals, and serious wrongs were regarded mainly as public crimes rather than personal matters, with perpetrators punished by death and forfeiture of property.
In 1154, Henry II became the first Plantagenet king and institutionalised common law by creating a unified system of law "common" to the country. He incorporated and elevated local custom to the national level, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, which is a distinguishing factor from today's civil and criminal court systems. Henry II developed the practice of sending judges from his Curia Regis to hear disputes throughout the country.
Over time, a rule known as stare decisis (commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge. Once judges began to regard each other's decisions as binding precedent, the pre-Norman system of local customs and laws varying in each locality was replaced by a system that was common throughout the country, hence the name "common law". The king's object was to preserve public order, but providing law and order was also extremely profitable – cases on forest use, as well as fines and forfeitures, generated "great treasure" for the government.
Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. In the 13th century, the early development of case law could be seen in Bracton's On the Laws and Customs of England, which led to the yearly compilations of court cases known as Year Books. These Year Books are known as the law reports of medieval England and 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 the common law developed into a recognisable form.
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Common law's influence on modern legal systems
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is derived from judicial decisions instead of statutes. It is a flexible system that can respond to changes in society. It promotes stability and consistency because everyone involved knows that the outcome will be based on previous caselaw and not on subjective viewpoints.
Common law originated in England during the Middle Ages, and until the early 20th century, it was widely considered to derive its authority from ancient Anglo-Saxon customs. The term "judge-made law" was introduced by Jeremy Bentham as a criticism of the pretense of the legal profession. The early development of case law in the 13th century has been traced to Bracton's On the Laws and Customs of England, which led to the yearly compilations of court cases known as Year Books.
American courts originally fashioned common law rules based on English common law. The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. The US now operates under a dual system of both common and civil law. Common law marriage, which grants similar rights to couples who are not officially married, is one example of common law in action in the US today.
Common law has influenced the legal systems of several countries, including Australia, Canada, India, New Zealand, and the United Kingdom. Post-partition, India retained its common law system, and contemporary Indian law shows substantial European and American influence. In Canada, each province and territory is considered a separate jurisdiction with respect to case law.
At the state level, legislatures often codify common law rules from the courts of their state to give them permanence or modify or replace them with legislation. For example, in 2018, the California Supreme Court issued a decision articulating a three-part test for determining whether California workers were independent contractors or employees. The California Legislature responded by creating a new section of the Labor Code that codified and expanded on the holding.
In conclusion, common law has had a significant influence on modern legal systems, with many countries continuing to rely heavily on common law when resolving legal disputes. Common law provides a flexible and stable framework for legal decision-making that can adapt to changing societal needs.
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Common law in the United States
The American legal system is a "common law" system, which heavily relies on court precedent in formal adjudications. Even when a statute is in question, judicial determinations from previous court cases are crucial to the court's resolution of the matter at hand. In contrast, civil law systems like those in several European countries rely less on court precedent and more on codes that explicitly provide rules for specific disputes.
In the US, most common law is found at the state level, where legislatures often codify common law rules from their state courts. This codification can give the rule the permanence of a statute, modify it, or replace it entirely with new legislation. For example, in 2018, the California Supreme Court issued a ruling in Dynamex Operations West, Inc. v. Superior Court, which established a three-part test for determining whether California workers were independent contractors or employees. The California Legislature subsequently created a new section in the state's Labor Code, codifying and expanding on the court's ruling.
While there is a limited body of federal common law, it is primarily created and applied by federal courts in the absence of a controlling federal statute. In the 2020 Supreme Court opinion Rodriguez v. FDIC, the Court emphasised that federal "common lawmaking must be 'necessary to protect uniquely federal interests'".
Common law has been described as "judge-made" law or case law. It involves legal determinations based on specific facts and disputes involving parties with a genuine interest in the controversy. Pure decisional case law occurs when a court resolves cases based on prior court decisions (precedent), policy considerations, and a sense of inherent fairness. This type of decisional law is referred to as "judicially-created doctrine."
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Common law in the United Kingdom
The English common law system, which directly influenced that of Wales since 1536, has also spread to other parts of the world. It forms the basis of the legal systems in the United States, most Commonwealth countries, and former colonies of the United Kingdom, such as the United States, Canada, Australia, New Zealand, and India, among others. The spread of the English legal system can be attributed to the country's historical role as a major trading nation and its influence on maritime trade laws.
In the United Kingdom, common law is the legal system of England and Wales, comprising mainly criminal law and civil law. The judiciary is independent, upholding principles such as fairness, equality before the law, and the right to a fair trial. While common law historically served as the foundation and primary source of English law, the most authoritative law today is statutory legislation, which includes Acts of Parliament, regulations, and by-laws. Common law remains relevant in the absence of statutory law, providing a residual source of law based on judicial decisions, customs, and usage.
The United Kingdom is a unitary state in international law, but it encompasses three distinct legal systems: England and Wales, Scotland, and Northern Ireland. While Scotland and Northern Ireland share the Parliament at Westminster, they have separate legal systems from England and Wales. For instance, Scots law has remained distinct from English law despite Scotland being part of the United Kingdom for over 300 years.
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Common law's reliance on judicial precedent
Common law is primarily developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which means "to stand by things decided". This means that common law relies on judicial precedent, where courts follow precedents established by previous decisions. Once judges began to regard each other's decisions as binding precedent, the pre-Norman system of local customs and laws was replaced by a unified system common throughout the country.
The reliance on judicial opinion is a strength of common law systems, and it contributes to robust commercial systems in countries like the United Kingdom and the United States. This is because parties, especially commercial parties, can predict whether a proposed course of action is likely to be lawful or unlawful, and have some assurance of consistency. This ability to predict 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 their proposed arrangement is almost certainly legal.
However, the rigid adherence to precedent, no matter how old or ill-considered, has also been criticised. In the late 19th century, Oliver Wendell Holmes Jr. commented, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV." Today, common law decisions reflect both precedent and policy judgments drawn from economics, the social sciences, business, decisions of foreign courts, and more.
While common law originated from judicial precedent, statutes can now supersede common law. They may codify existing common law, create new causes of action, or legislatively overrule the common law. At the state level, legislatures often codify common law rules from the courts of their state to give the rule permanence, modify it, or replace it entirely with legislation.
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Frequently asked questions
Common law was first created and institutionalised by King Henry II in 1154.
Henry II created a unified system of law that was "common" to the country. He did this by incorporating and elevating local customs to the national level, eliminating arbitrary remedies, and reinstating a jury system.
Common law is a body of customary law based on judicial decisions and reports of decided cases. It is administered by the courts and stands in contrast to the civil law system, which is widespread in continental Europe.
