Keith Mack
Common law is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England and is still in effect in the US and other countries today. Common law is derived from the Curia Regis, a single royal court established in the Middle Ages. It is a flexible system that can respond to changes in society, as it is based on judicial decisions and precedents rather than codes or statutes. This means that higher courts can overrule prior decisions as bad law without waiting for lawmakers to act.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Origin | Common law originated in medieval England, in the King's Court (Curia Regis) in the early Middle Ages. |
| Current Use | Common law is still in effect in the US and other countries, including Canada, India, and Australia. |
| Basis for Decisions | Common law systems rely on caselaw and legal precedent to guide their decisions, in contrast to civil law systems that rely on codes and statutes. |
| Flexibility | Common law is flexible as it can respond to changes in society and higher courts can overrule prior decisions without waiting for lawmakers to pass changes in statutes. |
| Efficiency | Judges in common law systems only need to follow precedent, making court proceedings shorter and more efficient. |
| Adaptability | Common law can address unforeseen situations not predicted or covered by existing statutes or written rules of law. |
| Federal Common Law | In the US, there is a limited body of federal common law, or rules created and applied by federal courts in the absence of controlling federal statutes. |
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What You'll Learn
Common law is a body of unwritten laws based on legal precedents
Common law is a system of law that is based on judicial decisions rather than codes or statutes. It is a flexible system that can respond to changes in society and leaves the legal code open for interpretation. This makes it well-suited to addressing unforeseen situations and adapting to new technologies and their impact on our lives. Common law is often contrasted with civil law, which is a comprehensive code of statutes that clearly outlines everything from procedures for handling claims to punishments for offences. Civil law is prevalent in mainland Europe and other parts of the world, while common law is used in the US, Canada, India, Australia, and most member states of the Commonwealth.
At the centre of common law is a legal principle known as stare decisis, a Latin phrase that means "to stand by things decided". Stare decisis dictates that judges need to follow earlier decisions and rulings, also known as caselaw, when dealing with similar cases. This means that court proceedings can be shorter, saving time and money. It also allows for adaptability and flexibility, as higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers to make changes to statutes and codes.
Common law is based on legal precedents established by the courts and may guide court rulings when the outcome is undetermined based on written rules of law. It is important to note that common law has been criticised for making it difficult for marginalised parties to pursue favourable rulings until popular thought or civil legislation changes the interpretation of the law. For example, in England, common law held that fathers were entitled to custody of the children in cases of divorce, which kept women trapped in marriages.
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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 originated in medieval England
Common law, a body of unwritten laws based on legal precedents, originated in medieval England. It is derived from its original appearance in medieval England but is still very much in effect in the US and other countries today. The common law system, as we know it, started in England during the Middle Ages, in the early Middle Ages to be precise, in the King's Court (Curia Regis). This was a single royal court set up for most of the country in Westminster, near London.
The common law of England 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 part in the government. 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. Some of the clergy were familiar with Roman law and the canon law of the Christian church, which was developed in the universities of the 12th century. Canon law was applied in the English church courts, but the revived Roman law was less influential in England than elsewhere, despite Norman dominance in the government.
Until the late 19th century, English common law continued to be developed primarily by judges rather than legislators. Common law stands in contrast to civil law systems, which rely primarily on codes and statutes. Civil law systems have clear rules for how judges need to rule for many specific disputes. Unlike common law systems, civil law court decisions are not binding in other cases, even if the facts are similar. Common law is often based on stare decisis, a Latin phrase that roughly means "to stand by things decided". In practice, this means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases.
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Common law systems are used in the US, Canada, India and Australia
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England, but it is still very much in effect in the US and other countries today. It is one of the three most common legal systems in the world, alongside civil law and religious law.
Common law systems are used in the US, Canada, India, and Australia. In the US, common law is found mostly at the state level, with a limited body of federal common law. The US Supreme Court has the power of judicial review, which allows it to strike down legislation as unconstitutional. Canada has separate federal and provincial legal systems, with each province considered a separate jurisdiction for case law. All but one of the provinces use a common law system for civil matters (Quebec uses a French-heritage civil law system). Canadian federal statutes must use the terminology of both common law and civil law, which is referred to as legislative bijuralism. India, as a common law country, derives most of its modern judicial framework from the British legal system. Post-partition, both Pakistan and Bangladesh retained their common law systems. In Australia, common law forms the basis of the legal system at both the federal and state levels.
The influence of common law extends beyond these countries, as it is employed by the greatest number of people compared to any single civil law system. It is particularly prevalent in countries that were once part of the British Empire, such as Ghana, Kenya, and Nigeria. The spread of common law can also be seen in the influence of the US Supreme Court's decisions on other supreme courts, such as in Canada and India, where they shifted towards the American model of judicial review.
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Common law is flexible and adaptable to unforeseen situations
Common law is a body of unwritten laws based on legal precedents. It is more malleable than statutory law and is adaptable to unforeseen situations.
When lawmakers create statutes and rules, they cannot predict all the situations in which courts may need to apply the laws. In common law systems, courts can address situations not originally predicted by lawmakers. Common law can respond to changes in society. It evolves through a series of gradual steps, gradually working out the details, so that over a decade or more, the law can change substantially without a sharp break, reducing disruptive effects.
In common law jurisdictions, several stages of research and analysis are required to determine "what the law is" in a given situation. One must ascertain the facts, locate relevant statutes and cases, extract the principles, analogies, and statements by various courts, and then integrate all the lines drawn and reasons given to determine "what the law is". The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others.
Common law courts are not absolutely bound by precedent, but can reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal, and social philosophy. Common law is derived from its original appearance in medieval England but is still very much in effect in the US and elsewhere today. For example, Ghana follows the English common law tradition inherited from British colonisation.
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Common law is distinct from civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England, but it is still in effect in the US and elsewhere today. 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. For example, in England, common law held that, when couples divorced, fathers were entitled to custody of the children, which kept women trapped in marriages.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is generally more prescriptive than a common law system, with more provisions implied into a contract. In civil law, the applicable civil code is used to evaluate the facts of each case and make legislative decisions. Civil systems clearly define the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense.
In a common law system, judicial decisions are binding and can only be overturned by the same court or through legislation. There is extensive freedom of contract, and generally, everything is permitted unless expressly prohibited by law. Common law is less prescriptive than civil law, and governments may wish to enshrine specific protections of citizens in legislation. For example, a government may wish to prohibit a service provider from cutting off the water or electricity supply of bad payers.
The two systems differ in their approaches to contracts. In a civil law system, less importance is placed on setting out all the terms governing the parties' relationship in the contract itself. In contrast, a common law system requires all terms to be explicitly stated in the contract since there are few provisions implied into the contract by law.
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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 guides court rulings when the outcome is undetermined based on written rules of law. It relies on caselaw and legal precedent to make decisions.
Common law originated in medieval England and was developed in the King's Court (Curia Regis), a single royal court set up in Westminster, near London.
Many countries around the world, including the US, Canada, India, and Australia, rely heavily on common law to resolve legal disputes.
