Cameron Miranda
Common law is a body of unwritten laws based on legal precedents and court decisions rather than codes or statutes. It is flexible, responding to changes in society, and is still used in several countries today. Common law originated in England after the Norman Conquest in 1066, when the king's courts across England began to use a shared system of law, which was then spread to North America and other parts of the world during the colonial period.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Basis of authority | Common law is derived from judicial decisions instead of statutes. |
| Sources | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
| Flexibility | Common law is flexible and can respond to changes in society. |
| Judicial overreach | In common law, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act. |
| Influence | Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. |
| Inspiration for legislation | Common laws sometimes inspire new legislation. |
| Consistency | Common law promotes stability and consistency in the legal justice system. |
| Binding nature | Common law is binding on cases tried in lower courts. |
| Comparison with civil law | Common law relies on caselaw and legal precedent, while civil law relies primarily on codes and statutes. |
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What You'll Learn
Common law is flexible
Common law is also flexible in that it can respond to changes in society. It doesn't require lawmakers to pass changes in statutes and codes, which can be a lengthy process or may never happen. Higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers to act.
The flexibility of common law is also reflected in the freedom of contract it allows. Few provisions are implied into a contract by law, so everything that is not expressly prohibited is permitted. This means that, unlike in a civil law system, a contract in a common law system will be longer as it must set out all the terms governing the relationship between the parties.
Common law is also flexible in that it takes some law-making pressure off Parliament and allows for laws to respond to real-life situations. It is reactive, rather than proactive, and can treat each case on a case-by-case basis. It expands on, clarifies and implements legislation, putting "meat on legislative bones".
However, some see common law as lacking flexibility in certain areas. For example, in the area of infrastructure, a government may wish to enshrine protections for its citizens in specific legislation. For instance, it may wish to prohibit a service provider from cutting off the water or electricity supply of bad payers.
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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 a body of unwritten laws
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a flexible system that can respond to changes in society. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes. Instead, it relies on caselaw and legal precedent to guide decisions, with judges referring to past rulings and detailed records of similar situations to determine the outcome of a case.
The common law system originated in England following the Norman Conquest in 1066. It was common to all the king's courts across England and drew from earlier Anglo-Saxon traditions, such as the jury, ordeals, the penalty of outlawry, and writs. Common law was widely considered to derive its authority from these ancient Anglo-Saxon customs until the early 20th century. William Blackstone's declaratory theory supported this view, stating that common law reaffirmed pre-existing customs but did not create new laws.
Jeremy Bentham introduced the term "judge-made law" to criticise the legal profession's pretence of merely upholding ancient customs. Eventually, modern writers adopted Bentham's view, defining common law as "case law" or ratio decidendi, which serves as binding precedent. Today, common law continues to be practised in several countries, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
Common law is particularly useful in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. It influences the decision-making process by providing a basis for evaluation in such cases. Common law can also inspire new legislation, as it draws from institutionalised opinions and interpretations from judicial authorities and public juries.
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Common law is based on legal precedents
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a flexible system that can respond to changes in society. Common law is derived from judicial decisions instead of statutes and is often contrasted with civil law systems, which rely on codes and statutes. Common law, also known as case law, draws from institutionalised opinions and interpretations from judicial authorities and public juries.
The term "common law" originated because it was common to all the king's courts across England. It emerged in the centuries following the Norman Conquest in 1066, drawing from earlier Anglo-Saxon traditions. Common law was historically defined as "unwritten law" (lex non scripta) and was understood to reaffirm pre-existing customs rather than create new laws.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This involves examining earlier court rulings and decisions, or caselaw, to understand the precedents that may be binding in the current case. The presiding judge determines which precedents apply, and while lower courts generally adhere to precedents set by higher courts, they may deviate if the precedents are outdated or the current case is substantially different.
Common law still has practical applications in some areas of law, such as contract law and the law of torts. It influences decision-making in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. Statutes can also codify, modify, or overrule common law.
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Common law is in contrast to civil law
Common law is a legal system that originated in England after the Norman Conquest in 1066. It is a body of law based on court decisions and judicial precedent rather than codes or statutes. Common law is flexible and can respond to changes in society, as higher courts can overrule prior decisions without waiting for lawmakers to act. Common law systems have extensive freedom of contract, with few provisions implied into the contract by law.
In contrast, civil law is a legal system rooted in the Roman Empire, with its most notable modern codification occurring in France and Germany in the 19th century. Civil law systems rely primarily on codes and statutes, with concise and broadly applicable texts that outline procedures and punishments. Civil law is more prescriptive than common law, with many provisions implied into contracts by law. Civil law judges tend to give less weight to precedent and are not bound by previous court decisions, even if the facts are similar.
Another key difference is that civil law proceeds from abstractions and formulates general principles, holding case law secondary to statutory law. Civil law codes must be constantly changed because the precedent of courts is not binding, and because courts lack authority to act without a statute. In common law systems, on the other hand, judicial precedent is a defining feature, with courts and judges required to follow earlier rulings when dealing with similar cases.
While civil law is the world's most common legal system, practiced in about 150 countries, common law continues to be widely used, particularly in countries that were former British colonies or protectorates, such as the United States. The choice between common law and civil law systems can have implications for areas such as contract law, where the level of government intervention and the extent of freedom of contract can vary significantly.
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Common law is derived from judicial decisions
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law is derived from judicial decisions, also known as case law, which guides court rulings when the outcome cannot be determined based on existing statutes or written rules of law. This means that common law is flexible and can respond to changes in society. It is not bound by a strict set of codes or statutes, allowing judges to make decisions based on the specific facts and circumstances of each case.
The term "judge-made law" was introduced by Jeremy Bentham as a criticism of the legal profession's reliance on judicial decisions. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. The legal principle of stare decisis, a Latin phrase meaning "to stand by things decided", is central to common law. This means that courts and judges need to follow earlier decisions and rulings, creating a history of judicial decisions that form the basis for evaluating future cases.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This involves examining previous court rulings and decisions to understand the relevant caselaw and legal precedent. While common law systems use caselaw and legal precedent to guide their decisions, civil law systems primarily rely on codes and statutes. Civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that outlines the procedures for handling claims and the punishment for offences.
Common law originated in England following the Norman Conquest in 1066 and was common to all the king's courts across the country. It evolved from earlier Anglo-Saxon traditions and was influenced by the practices of the English kings' courts. Common law has since spread to other countries, including the United States, Australia, Canada, and India, through British colonial rule.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts.
Common law exists because it is flexible and can respond to changes in society. It is also a way to provide stability and consistency in the legal system.
Common law relies on detailed records of similar situations and statutes to guide court rulings when the outcome cannot be determined based on existing statutes or written rules of law.
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 is practiced in several countries today, including Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States.
