Kara Sears
Common law, also known as case 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 in the early Middle Ages, after the Norman Conquest of 1066. Over time, the decisions of judges in similar cases became binding precedent, creating a unified legal system that replaced the varying local customs and laws of each locality. This common law system, with its emphasis on precedent and adaptability to changing circumstances, was spread to the colonies of the British Empire, including North America, and continues to form the basis of the legal systems of many former colonies, including the United States, Canada, Australia, and India.
| Characteristics | Values |
|---|---|
| Origin | English common law originated in the King's Court (Curia Regis) in the early Middle Ages. |
| Development | Common law was developed by judges' rulings and decisions in previous similar cases, also known as case law or judge-made law. |
| Precedent | Stare decisis, a Latin phrase meaning "to stand by things decided", is a key principle in common law, where courts follow precedents established by previous decisions. |
| Flexibility | Common law allows for adaptability and flexibility in unforeseen situations, as it is not bound by written codes or statutes. |
| Efficiency | By relying on precedent, common law can lead to shorter court proceedings, saving time and money. |
| Influence | Common law has influenced many legal systems, including those in the US, UK, Canada, Australia, and former British colonies. |
| Current Usage | Common law is still in use today, especially in mixed legal systems that integrate common law and civil law. |
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What You'll Learn
Common law's origin in the King's Court
The common law system, also known as case law or judge-made law, is a body of law based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous decisions.
Common law originated in the King's Court (Curia Regis) in the early Middle Ages, following the Norman Conquest of 1066. It was a single royal court set up for most of the country at Westminster, near London. The name "common law" comes from the fact that it was common to all the king's courts across England.
Prior to the Norman Conquest, England's legal business took place in local folk courts, urban boroughs, merchant fairs, and manorial and seigniorial courts. The Norman Conquest brought about a more centralized form of government, and the king's objective was to preserve public order. Providing law and order was also profitable, as cases on forest use, fines, and forfeitures generated "great treasure" for the government.
The development of common law was influenced by earlier Anglo-Saxon traditions, such as the jury, ordeals, the penalty of outlawry, and writs. The Catholic Church also had its own court system that dealt with issues of canon law, which included what we would now consider family law.
Henry II played a significant role in the development of common law with his reforms. He created a powerful and unified court system that reduced the power of the canonical (church) courts, bringing him into conflict with the church. Henry II introduced the writ of mort d'ancester, which dealt with inheritance and land ownership, and his new jury system relied on local knowledge of land holdings as a method of proof.
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Common law's spread through British colonies
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". Common law originated in England following the Norman Conquest in 1066, when it established a unified legal system that gradually replaced local folk and manorial courts.
England then spread the English legal system and common law across the British Isles, first to Wales, then to Ireland, and eventually to overseas colonies. This process was continued by the later British Empire, and many former colonies, including approximately one-third of the world's population, retain the common law system today.
During the Napoleonic Wars, the British seized Dutch colonies in the Cape of Good Hope and Sri Lanka (then called Ceylon) to prevent their use by the French Navy. The common law system spread to these colonies, and with the expansion of British colonies in Southern Africa, Roman Dutch common law was developed. This type of common law relies on legal principles set out in Roman law sources, such as Justinian's Institutes and Digest, as well as the writings of 17th-century Dutch jurists like Grotius and Voet.
Many countries that were once British colonies continue to follow the English common law tradition. For example, the laws of Ghana are largely a modified version of English common law inherited from British colonisation, and they have been adapted to fit the changing socio-economic and political realities of the country. Similarly, the law of India, Pakistan, and Bangladesh are largely based on English common law due to the long period of British colonial influence during the British Raj. In addition, the common-law system spread to North America during the 17th and 18th centuries, and today, the US operates under both common and civil law. Outside of the US, parties in different jurisdictions, especially those in former British colonies and Commonwealth members, often choose the law of England and Wales.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Common law vs civil law
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It originated in the practices of the courts of English kings following the Norman Conquest, gradually supplanting local folk and manorial courts. Common law is deeply rooted in stare decisis, which means "to stand by things decided". In other words, it gives great weight to precedent, or prior court decisions, which are considered legally binding. Common law systems are less prescriptive, with fewer provisions implied in a contract, and generally allow everything that is not expressly prohibited by law. Common law is practised today in the US, the UK, Australia, Canada, Hong Kong, India, and New Zealand, and many countries that were formerly British colonies or protectorates.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was later influenced by Napoleonic, Germanic, canonical, and feudal law. Civil law is characterised by its reliance on legal codes as the primary source of law, rather than judicial precedent. It clearly defines the cases that can be brought to court and the procedures for handling claims and punishments for offences. Civil law systems are generally more prescriptive, with more provisions implied in a contract, and require specific legislation for certain situations. Civil law is practised in about 150 countries today, including France, Germany, and Louisiana, the only US state whose private civil law is based on French and Spanish codes.
One example of common law in action today is the concept of common-law marriage, which grants similar rights to couples who are not officially married if certain conditions are met. In a common law jurisdiction, determining "what the law is" in a given situation involves several stages of research and analysis: ascertaining the facts, locating relevant statutes and cases, extracting principles and statements from various courts, predicting how the next court is likely to rule, applying that law to the facts, and so on.
While common law is based on precedent, it also allows for some freedom of interpretation. Judges are empowered to resolve issues and establish new precedents in cases of first impression with no clear legislative guidance. This allows the law to adapt to situations not contemplated by the legislature. However, common law has also led 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.
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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 is deeply rooted in stare decisis, which means "to stand by things decided". In other words, common law is based on the idea that courts and judges should follow previous decisions and rulings when dealing with similar cases. This system promotes stability and consistency in the US legal justice system.
The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. The common law of England was largely created in the period after the Norman Conquest of 1066. The Normans spoke French and had developed a customary law in Normandy. They had no professional lawyers or judges; instead, literate clergymen acted as administrators.
Over time, the English legal system spread across the British Isles and later to the colonies, including those in North America. Many former colonies, including the United States, continue to use a common law system today. However, it is important to note that none of the common law systems in the United States are technically pure common law systems. This is because US courts, including those at the state level, must also consider codified statutes in addition to legal precedents.
At the state level, legislatures often subsequently codify common law rules from the courts of their state, either to give the rule more permanence or to modify or replace it with legislation. For example, in 2018, the California Supreme Court issued a decision that articulated a three-part test for determining whether California workers were independent contractors or employees. In response, the California Legislature created a new section of the Labor Code that codified and expanded on the court's holding.
In the US, common law is particularly prominent in the courts, where it operates under a dual system of both common and civil law. One example of common law in action today is the concept of common-law marriage, which grants similar rights to couples who are not officially married if certain conditions are met.
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Common law in other countries
Common law is one of the four major legal traditions (alongside civil law, customary law, and religious law) that form the basis of the legal systems of many countries. Common law is also known as case law or judge-made law, as it is primarily developed through judicial decisions and legal precedents rather than statutes.
Many former colonies of England, Great Britain, or the United Kingdom continue to retain the common law system today, including Australia, Canada, India, New Zealand, and the United States. The Caribbean jurisdictions of Antigua and Barbuda, Barbados, the Bahamas, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, and Trinidad and Tobago also follow common law. Additionally, Ghana has enshrined the English common law system inherited from British colonisation in its 1992 Constitution.
The United States operates under a dual system of both common and civil law. While common law is not common in the U.S., several states, including Alabama, previously allowed for common-law marriage, which grants similar rights to couples who are not officially married. The U.S. has also enacted the Uniform Commercial Code (UCC), a codified framework of commercial law, in all 50 states and other territories.
Other countries that follow a common law system include Hong Kong and the United Kingdom. Roman Dutch common law, which is based on Roman law sources and the writings of Dutch jurists, is followed in Sri Lanka and South Africa.
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Frequently asked questions
Common law is a body of law based on legal precedents established by the courts.
Common law originated in England in the King's Court (Curia Regis) in the early Middle Ages. It was largely created in the period after the Norman Conquest of 1066.
Common law relies on detailed records of similar situations and statutes as there is no official legal code that can be applied to a specific case. The presiding judge determines which precedents to apply to a particular case.
Civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that outline procedures for handling claims and punishments for offences. In contrast, common law is based on judicial decisions and precedents.
Many former British colonies, including the United States, Canada, Australia, India, and New Zealand, follow common law. Ghana, a former British colony, also follows the English common law tradition with modifications to suit the country's socio-economic and political realities.
