Cecily Zamora
Common law, a body of unwritten laws based on legal precedents established by the courts, has been a part of the English legal system since the Middle Ages. Its longevity can be attributed to its adaptability, with judges playing a crucial role in evolving the law to align with changing social values and understandings. This flexibility allows common law to respond to societal changes without requiring lawmakers to pass new statutes, thus ensuring the law remains relevant and applicable over time.
| Characteristics | Values |
|---|---|
| Origin | The English common law originated in the early Middle Ages in the King's Court (Curia Regis) |
| Basis | Common law is a body of unwritten laws based on legal precedents established by the courts |
| Flexibility | Common law is flexible and can respond to changes in society |
| Judge-made | Judges have "made law" for hundreds of years |
| Influence | The common law of England influenced the legal systems in the United States and in most of the member states of the Commonwealth |
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What You'll Learn
Common law's flexibility allows it to respond to societal changes
Common law is a body of unwritten laws based on legal precedents established by the courts. It is largely 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.
Common law is flexible and has been described as such because it can respond to changes in society. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes, which can take a long time or never happen. In common law, higher courts can and do overrule prior decisions and do not need to wait for lawmakers to do so. This means that common law can evolve with societal changes, as judges have "made law" for hundreds of years.
For example, in the famous case of MacPherson v. Buick Motor Co. in 1916, Judge Benjamin Cardozo for New York's highest court pulled a broader principle out of previous cases. Cardozo adhered to the principle that "absurd and outrageous consequences" must be avoided, but he drew a new line: "There must be knowledge of a danger, not merely possible, but probable." This evolution of the law of negligence illustrates how common law adapts to societal changes.
Common law has also furnished the basis for new legislation to be written. For example, the U.K. has long had a common-law offence of "outraging public decency." In recent years, authorities have used this ancient common law to prosecute a new intrusive activity called "upskirting." In 2019, the U.K. Parliament passed the Voyeurism (Offences) Act, officially making upskirting a crime. This demonstrates how common law can be adapted and codified into statutory law to respond to societal changes.
In summary, the flexibility of common law allows it to respond to societal changes through the evolution of legal precedents, the ability of higher courts to overrule prior decisions, and its influence on new legislation.
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It is a body of unwritten laws based on legal precedents
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law, and its flexibility means it can respond to changes in society. Common law originated in England in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up in Westminster, near London. It was expanded under Henry II (1154-89), when permanent royal courts were established.
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. These are the principal source of knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when common law took on a recognisable form.
Common law 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 apply to a particular case. This system promotes stability and consistency in the legal system.
Common law is flexible and can adapt to changes in society. It does not require lawmakers to pass changes in statutes and codes, which can be a lengthy process. Higher courts can overrule prior decisions as 'bad law' without waiting for lawmakers to act.
Common law has influenced the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. It has also provided the basis for new legislation, such as the U.K.'s Voyeurism (Offences) Act, which criminalised 'upskirting'.
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Common law is judge-made, not reliant on legislators
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 deeply rooted in stare decisis, which means "to stand by things decided" in Latin. This means that common law is largely based on precedent, specifically, judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
Jeremy Bentham, who introduced the term "judge-made law", criticised the legitimacy of common law and favoured codification and narrow judicial decisions. However, common law has been defended by notable writers, including Oliver Wendell Holmes, who dissented, saying, "judges do and must legislate".
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. It was largely created in the period after the Norman Conquest of 1066. In the 13th century, the early development of case law was traced to Bracton's On the Laws and Customs of England, leading to the yearly compilations of court cases known as Year Books. These Year Books are the law reports of medieval England and provide knowledge of the developing legal doctrines, concepts, and methods from the 13th to the 16th centuries, when common law took on a recognisable form.
Common law has lasted for over a thousand years and continues to be very much in effect in the US and elsewhere today. Its longevity can be attributed to its adaptability, allowing for interpretation and evolution over time. While common law may incorporate certain statutes, it is not reliant on legislators. Instead, it is primarily shaped by judges who interpret and apply precedents to new cases, establishing new precedent when necessary. This process of judicial lawmaking has allowed common law to remain relevant and responsive to societal changes.
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It originated in the early Middle Ages in the King's Court
Common law has lasted for 1000 years, originating in the early Middle Ages in the King's Court (Curia Regis). This single royal court was set up in Westminster, near London, and served most of the country. The law at this time was based on royal authority and was largely procedural, focusing on remedies rather than substantive rights.
The early Middle Ages, also known as the 'Dark Ages', were characterised by weak bureaucratic governments, low literacy, and a scarcity of money. Kings, despite their seemingly all-powerful status, had their powers limited in several ways. They relied on the cooperation of their highest-ranking nobles, who could even elect or rebel against their kings. Kings also had to contend with the influence of the Church, which maintained its own court system.
During the reign of Henry II (1154-1189), royal justice was made available to all free subjects. The mechanisms of the law were outlined by Ranulf de Glanvill, one of Henry II's administrators, in his treatise, 'On the Laws and Customs of the Kingdom of England'. This pragmatic legal system was based on royal authority and applied uniformly across the kingdom.
The early development of case law in the 13th century is attributed to Bracton's 'On the Laws and Customs of England'. This led to the creation of yearly compilations of court cases known as Year Books, which served as a principal source of knowledge for the developing legal doctrines, concepts, and methods from the 13th to the 16th centuries.
Common law, therefore, has its roots in the early Middle Ages, evolving over time through judicial decisions and the influence of various social and political factors.
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Common law is conservative in terms of substantive law
Common law is a body of customary law based on judicial decisions that has been administered by the common-law courts of England since the Middle Ages. It is largely based on precedent, meaning that the decisions made in similar cases in the past are applied to new cases.
However, substantive law has increased in volume and changed rapidly in the twentieth century as Congress and state legislatures have enacted statutes that displace many common-law principles. In the United States, substantive law comes from both common law and legislative statutes. While common law is largely based on precedent, it does rely on some legislative decisions. Over time, the working out of procedural remedies has produced the modern system in which rights are seen as primary over procedure.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law.
Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand. The judge presiding over a case determines which precedents apply to that particular case.
Common law is flexible and can respond to changes in society. It is also able to adapt to evolving social values and popular understandings.
Common law has provided the basis for new legislation. For example, the U.K. has long had a common-law offence of "outraging public decency". In 2019, the U.K. Parliament passed the Voyeurism (Offences) Act, which made upskirting a crime.
