Kara Sears
Common law, also known as judicial precedent, judge-made law, or case law, is largely based on precedent—judicial rulings made in previous similar cases. Judges create common law when they decide cases and write opinions explaining their decisions. The U.S. Supreme Court and state supreme courts create most of the common law. Federal and state appellate courts also create common law if an issue has yet to be decided by their supreme court. 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. 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.
| Characteristics | Values |
|---|---|
| Name origin | Common to all the king's courts across England |
| Other names | Judicial precedent, judge-made law, case law |
| Basis | Precedent, i.e. previous rulings in similar cases |
| Latin for precedent | Stare decisis ("to stand by things decided") |
| Court system | Adversarial system with two sides presenting cases to a neutral judge |
| Example areas | Negligence, contracts |
| Overruling | Rare |
| Sources | Decisions made by the U.S. Supreme Court, state supreme courts, federal and state appellate courts |
| Online availability | Most court opinions are published online |
| Analogous decisions | Crucial for advocates to offer analogous decisions |
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What You'll Learn
Common law is made by judges
Common law is a body of law that is primarily developed through judicial decisions, also known as precedents, rather than statutes. It is deeply rooted in the Latin principle of stare decisis, which means "to stand by things decided". This means that when a court faces a legal argument, it will make its decision based on a previous court's ruling on the same or similar issue.
Judges create common law when they decide cases and write opinions explaining their decisions. The U.S. Supreme Court and state supreme courts create most of the common law. Federal and state appellate courts also create common law when the supreme court has not yet decided on an issue. For example, the law of contracts is an area where judges have created common law. Judges define how contracts are created and what happens when promises made in a contract are broken.
Common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. Prior to this, much of England's legal business took place in local folk courts, as well as various other individual courts across the land, including those held by urban boroughs, merchant fairs, and large landholders.
Common law is named as such because it was common to all the king's courts across England. It is important to note that while common law relies on judicial decisions, it may also incorporate certain statutes or legislative decisions. However, it is primarily based on precedent, with judges determining which precedents to apply in each new case.
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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 is based on precedent
Common law, also known as judicial precedent, judge-made law, or case law, is a body of law primarily developed through judicial decisions rather than statutes. It is based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historical documentation in collections of case law known as yearbooks and reports. The presiding judge determines which precedents to apply in deciding each new case.
Common law is deeply rooted in the doctrine of stare decisis, which means "to stand by things decided" in Latin. When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make its decision in alignment with the previous court's decision. Judges create common law when they decide cases. The U.S. Supreme Court and state supreme courts create most of the common law by deciding cases and writing opinions explaining their decisions. Federal and state appellate courts also create common law when their supreme court has not yet decided on an issue.
Common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. Prior to the Norman Conquest, much of England's legal business took place in local folk courts in its various shires and hundreds. A variety of other individual courts also existed across the land: urban boroughs and merchant fairs held their own courts, and large landholders also held their own manorial and seigniorial courts as needed.
Common law courts usually use an adversarial system, in which two sides present their cases to a neutral judge. For example, in criminal cases, the prosecutor and adjudicator are two separate people. The prosecutor is lodged in the executive branch and conducts the investigation to locate evidence. That prosecutor presents the evidence to a neutral adjudicator, who makes a decision. In contrast, in civil law systems, criminal proceedings proceed under an inquisitorial system in which an examining magistrate serves two roles by first developing the evidence and arguments for one side and then the other during the investigation phase.
While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent. Common law reasoning involves a complex form of reasoning by analogy. Effective common law reasoning often requires courts to decide between competing analogies, the outcome of which turns on the identification of the relevant likeness.
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Common law vs civil law
Common law, also known as judge-made law, is largely based on precedent—judicial rulings made in previous similar cases. It originated in the practices of the courts of English kings in the centuries following the Norman Conquest in 1066. Common law is deeply rooted in stare decisis, which means "to stand by things decided" in Latin. This means that courts adhere to precedent in making their decisions and align their reasoning with the precedent set in previous similar cases. Common law is less prescriptive than civil law, and generally, everything is permitted that is not expressly prohibited by law. Common law systems usually use an adversarial system, in which two sides present their cases to a neutral judge.
Civil law, on the other hand, is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law is the most common legal system in the world, practiced in about 150 countries. It is generally more prescriptive than common law, and there are several provisions implied in a contract under a civil law system. 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. Civil law systems are characterized by their reliance on legal codes that function as the primary source of law. Civil law judges tend to give less weight to judicial precedent and more weight to written decisions.
Common law systems are typically found in countries that were former British colonies or protectorates, including the United States. In contrast, civil law is prevalent in countries with a historical connection to the Roman Empire, such as those in continental Europe and Latin America.
While common law and civil law are the two main types of legal systems globally, most countries have adopted features from both into their legal systems. For example, Louisiana is the only U.S. state whose private civil law is based heavily on French and Spanish codes, rather than English common law.
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Common law in criminal cases
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 the doctrine of stare decisis, which means "to stand by things decided" in Latin. This means that common law relies on the records of previous judicial decisions in similar cases to guide the decision-making process in new cases.
In the context of criminal cases, common law has been used in various jurisdictions, including Canada, England, Wales, and some states in the United States. Common law offences have been abolished or redefined as statutory offences in many places. For example, in Canada, the Criminal Code enacted in 1953 abolished all common law offences except for contempt of court. Similarly, in New Zealand, the ability to be proceeded against at common law for criminal offences was abolished in 1893.
However, in some jurisdictions, common law still plays a role in defining criminal offences. For instance, in Michigan, while the penalties for murder are laid out in statute, the actual elements of murder and their meaning are set out in case law. This means that the specific actions or behaviours that constitute murder are defined by previous judicial decisions rather than a written legal code.
The use of common law in criminal cases can have both advantages and disadvantages. On the one hand, it allows for flexibility and the incorporation of institutionalized opinions and interpretations from judicial authorities and public juries. It can also inspire new legislation to be enacted. On the other hand, common law has been criticized for its lack of clarity and precision compared to civil law, particularly in criminal matters where certainty and specific definitions are crucial.
In summary, common law in criminal cases involves relying on judicial precedent and previous decisions to guide the outcome of new cases. While common law offences have been largely replaced by statutory offences in many jurisdictions, elements of common law still influence the definition of certain crimes in some places. The advantages of common law include flexibility and the ability to incorporate judicial interpretations, while the disadvantages include a lack of clarity and precision.
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Common law in the US
Common law, also known as case law or judge-made law, is a body of law that is primarily developed through judicial decisions instead of statutes. It originated in the practices of the courts of English kings following the Norman Conquest in 1066. Common law is deeply rooted in the doctrine of stare decisis, which means "to stand by things decided" in Latin. This doctrine dictates that courts will adhere to precedent in making their decisions, aligning their reasoning with previous rulings in similar cases.
In the United States, common law was initially based on English common law. Over time, the American legal system matured and began to create its own common law rules through direct precedent or by drawing analogies to comparable areas of decided law. While there is no "general federal common law", federal courts have created a limited body of federal common law rules in the absence of controlling federal statutes. These rules are necessary to protect uniquely federal interests.
At the state level, common law rules are often codified by legislatures, giving them the permanence of statutes and sometimes modifying or replacing them entirely. For example, in 2018, the California Supreme Court issued a decision in Dynamex Operations West, Inc. v. Superior Court, which established a three-part test for determining the employment status of California workers. The California Legislature subsequently codified and expanded upon this decision in a new section of the state's Labor Code.
It is important to note that no U.S. state has a purely common law system. Instead, they have a mix of common law and codified statutes that courts must consider. However, the principle of stare decisis remains constant, even when courts are interpreting statutes. This means that prior court decisions interpreting the same statute are considered precedent and are binding in future cases.
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Frequently asked questions
Common law is a body of law that is primarily developed through judicial decisions rather than statutes. It is deeply rooted in the doctrine of stare decisis, which means "to stand by things decided" in Latin.
Common law is largely made by judges when they decide cases and write opinions explaining their decisions. The U.S. Supreme Court and state supreme courts create most of the common law.
Common law relies on judicial precedent, while civil law follows statutes. Common law is more flexible and adaptable, while civil law can be clearer and more detailed.
Common law examples include negligence and contracts. For example, determining responsibility in a car accident or resolving a dispute over a wedding photographer's payment are both based on common law.
Most court opinions, including common law decisions, are published online. Older decisions may be found in law libraries, providing valuable resources for legal research and understanding the development of common law over time.
