Common law what is

Common Law

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What Is Common Law?

Common law is a body of unwritten laws based on legal precedents established by the courts. 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. The U.S. common-law system evolved from a British tradition that spread to North America during the 17th- and 18th-century colonial period. Common law is also practiced in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.

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Understanding Common Law

A precedent, known as stare decisis, is a history of judicial decisions which form the basis of evaluation for future cases. Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can apply to a case at hand.

The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts. This system promotes stability and consistency in the U.S. legal justice system. However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case. Lower courts can also choose to overturn the precedent, but this rarely occurs.

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Common Law vs. Civil Law

Civil law is a comprehensive, codified set of legal statutes created by legislators. A civil system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case.

Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Similar to civil law, the goal of common law is to establish consistent outcomes by applying the same standards of interpretation. In some instances, precedent depends on the case-by-case traditions of individual jurisdictions. As a result, elements of common law may differ between districts.

Common Law Marriage

A common law marriage, also known as a non-ceremonial marriage, is a legal framework that may allow couples to be considered married without having formally registered their union as either a civil or religious marriage. While common law is not common among the U.S., there are a number of states that have statutes or allow for common law marriage if they meet certain requirements:

A number of states, including Alabama, recently abolished the statutes allowing for common law marriage.

Special Considerations

As judges present the precedents which apply to a case, they can significantly influence the criteria that a jury uses to interpret a case. Historically, the traditions of common law have led to unfair marginalization or disempowerment of certain groups. Whether they are outdated or biased, past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.

This system makes it difficult for marginalized parties to pursue favorable rulings until popular thought or civil legislation changes the interpretation of common law. Feminists in the 19th and early 20th centuries who fought for women’s rights often faced such difficulties. For example, in England, common law as late as the 1970s held that, when couples divorced, fathers—rather than mothers—were entitled to custody of the children, a bias that in effect kept women trapped in marriages.

Example of Common Law

From time to time, common law has furnished the basis for new legislation to be written. For example, the U.K. has long had a common-law offense of «outraging public decency.» In the last decade, the authorities have used this ancient common law to prosecute a new intrusive activity called upskirting: the practice of sticking a camera in between a person’s legs, without their consent or knowledge, to take a photo or video of their private parts for sexual gratification or to humiliate or distress.

Common Law FAQs

What is a simple definition of common law?

Common law is a body of unwritten laws based on legal precedents established by the courts.

Is common law still used today?

Today the US operates under a dual system of both common and civil law. The courts, for example, operate under common law.

What is an example of common law?

The concept of common-law marriage, which acknowledges similar rights as those that have a marriage license to couples that are not officially married if several conditions are met, is one example of common law in action today.

Why is common law important?

Common law places an emphasis on precedent while allowing some freedom for interpretation. The value of a common-law system is that the law can be adapted to situations that were not contemplated at that time by the legislature.

What is UK common law?

US common law originates from medieval England, however, today both the US and UK operate under a dual system of both common and civil law.

The Bottom Line

Although common law is derived from its original appearance in medieval England, it is still very much in effect in the US and elsewhere today. As the evolution of technology and its presence in our lives continues to grow, common law’s ability to leave the legal code open for interpretation will become increasingly important.

Common Law

Common Law meaning

Common law is a term used to refer to law that is developed through decisions of the court, rather than by relying solely on statutes or regulations. Also known as “case law,” or “case precedent,” common law provides a contextual background for many legal concepts. Common laws vary depending on the jurisdiction, but in general, the ruling of a judge is often used as a basis for deciding future similar cases. To explore this concept, consider the following common law definition.

Definition of Common Law

Origin

1300-1350 Middle English

What is Common Law

Common law often refers to laws that are based on the customs and principles of society, which are used in court case decisions in situations not covered by civil law statutes. These decisions set a precedent that must be applied to future cases on the same subject.

While the term common law is used to refer to principles applied to court decisions, a common law system refers to a legal system that places great weight on judicial decisions made in prior similar cases. In the United States, common law, or precedent, is used to help ensure similar results in similar cases. Courts are bound by the decisions of higher courts on similar matters, by a principle of “stare decisis.” If the court determines a case to be fundamentally different from prior cases heard by other courts, its decision is likely to create precedent for future cases on that subject.

History of Common Law

Common law is a term that was originally used in the 12th century, during the reign of Henry II of England. The ruler established secular tribunals, with the goal of establishing a unified system of deciding legal matters. The King’s judges in these tribunals respected the decisions of one another, such decisions creating a unified “common” law throughout England. The precedent set by the courts through the 12th and 13th centuries were often based on tradition and custom, and became known as a “common law” system.

Common law in the United States dates back to the arrival of the colonists, who brought with them the system of law with which they were most familiar. Following the American Revolution, the newly formed states adopted their own forms of common law, separate from the federal law.

Systems of Common Law vs. Civil Statutory Law

Systems of common law and civil statutory law differ in many ways. Rulings in a common law system rely heavily on prior decisions made in similar cases. Rulings in a statutory law system are based primarily statutory laws. This makes the method by which laws are developed and enacted. While common laws develop over time as judicial decisions are made, and used in future decisions, they generally do not become statutory laws enforceable by law enforcement or enforcement agencies. It takes time for the influence of common laws to spread and become common knowledge.

Statutory laws, on the other hand, rely on the legislative process, in which laws and ordinances are developed and voted on by representatives of the people. Once these new laws go into effect, they are enforceable by law enforcement or governmental agencies, and the letter of the law is usually applied in court. Because common law is based on judicial opinion, parties to a civil lawsuit may draw comparisons between precedent-setting cases. Statutory law does not allow for comparisons. For example, civil statutory laws govern such things as deadlines and statutes of limitations, allowed monetary damages, and sentencing.

Many countries rely on either the common law system, or a civil statutory law system. In the United States, the judicial system is a combination of the two, with statutory laws being applied where appropriate, while requiring the courts to adhere to precedent in determining cases not governed by statute.

Federal Common Law

The use of common law by federal courts is limited to deciding federal cases. While, in certain circumstances, federal court may have jurisdiction to hear a case under state law (known as “diversity jurisdiction”), it cannot create or apply federal common law or precedent to deciding a state law case. Rather, a federal judge hearing such a case must turn to state law precedent.

Common Law Examples

On July 27, 1934, Harry Tompkins was walking on a narrow footpath by the Erie Railroad tracks in Hughestown, Pennsylvania. As a train approached, something protruding from one of the railcars struck Tompkins and knocked him down, causing his arm to be crushed beneath a train wheel. The train was operated by a corporation registered in New York, so Tompkins filed his civil lawsuit in federal district court.

The district court judge who heard the case followed current federal law of the time, in applying federal common law to the case, rather than common law of either the state of Pennsylvania or New York. Federal common law applied a standard of “ordinary negligence” when determining what level of care the railroad owed to individuals who are not employed by the railroad. Common law in the state of Pennsylvania, where the accident occurred, specifies that the railroad owes a “wanton negligence” duty of care to trespassers, which requires proof of a greater level of negligence. The court found in Tompkins’ favor, and awarded him damages.

Prior to the case of Tompkins v. Erie Railroad, it had already been determined that, when a case is heard in federal court in diversity, meaning that the case is filed in federal court because it crosses state jurisdictions, the state’s statutory law must be applied. It had also been ruled, however, that a federal court hearing a case in diversity was not required to apply the state’s common law, or precedent, to the case.

The railroad appealed the matter to the appellate court, then to the U.S. Supreme Court. After reviewing the case, the Supreme Court ruled that the federal district court did not have the authority to create federal common law when reviewing state law claims in diversity, but must apply state common law.

This topic was quite important, as it was an effort by the Supreme Court to address the issue of “forum shopping,” where plaintiffs in cases that cross jurisdictions take their case to the state or jurisdiction whose laws would give them the greatest advantage. With this decision, the Court overturned federal civil procedures, creating a mandate that federal common law should be applied only to strictly federal cases, and not to diversity cases.

common law

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Read a brief summary of this topic

common law, also called Anglo-American law, the body of customary law, based upon judicial decisions and embodied in reports of decided cases, that has been administered by the common-law courts of England since the Middle Ages. From it has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth (formerly the British Commonwealth of Nations). In this sense common law stands in contrast to the legal system derived from civil law, now widespread in continental Europe and elsewhere. In another, narrower, sense, common law is contrasted to the rules applied in English and American courts of equity and also to statute law. A standing expository difficulty is that, whereas the United Kingdom is a unitary state in international law, it comprises three major (and other minor) legal systems, those of England and Wales, Scotland, and Northern Ireland. Historically, the common-law system in England (applied to Wales since 1536) has directly influenced that in Ireland but only partially influenced the distinct legal system in Scotland, which is therefore, except as regards international matters, not covered in this article. Beginning in 1973 the legal systems in the United Kingdom experienced integration into the system of European Union (EU) law, which had direct effects upon the domestic law of its constituent states—the majority of which had domestic systems that were influenced by the civil-law tradition and that cultivated a more purposive technique of legislative interpretation than was customary in the English common law. However, the United Kingdom exited the EU in 2020. The regime of human rights represented by the European Convention on Human Rights (1950) has exercised a similar influence in the United Kingdom since the passage by Parliament of the Human Rights Act 1998.

The origin of the common law

The 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. Like many other early legal systems, it did not originally consist of substantive rights but rather of procedural remedies. The working out of these remedies has, over time, produced the modern system in which rights are seen as primary over procedure. Until the late 19th century, English common law continued to be developed primarily by judges rather than legislators.

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 (871), had developed a body of rules resembling those being used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government. Crimes were treated as wrongs for which compensation was made to the victim.

The Norman Conquest did not bring an immediate end to Anglo-Saxon law, but a period of colonial rule by the mainly Norman conquerors produced change. Land was allocated to feudal vassals of the king, many of whom had joined the conquest with this reward in mind. Serious wrongs were regarded mainly as public crimes rather than as personal matters, and the perpetrators were punished by death and forfeiture of property. The requirement that, in cases of sudden death, the local community should identify the body as English (“presentment of Englishry”)—and, therefore, of little account—or face heavy fines reveals a state of unrest between the Norman conquerors and their English subjects. Government was centralized, a bureaucracy built up, and written records maintained. Controversy exists regarding the extent to which the efficient government of the Anglo-Norman realm was due to the legacy of Anglo-Saxon institutions or to the ruthlessness of the Norman invaders. Elements of the Anglo-Saxon system that survived were the jury, ordeals (trials by physical test or combat), the practice of outlawry (putting a person beyond the protection of the law), and writs (orders requiring a person to appear before a court; see below The development of a centralized judiciary). Important consolidation occurred during the reign of Henry II (1154–89). Royal officials roamed the country, inquiring about the administration of justice. Church and state were separate and had their own law and court systems. This led to centuries of rivalry over jurisdiction, especially since appeals from church courts, before the Reformation, could be taken to Rome.

What Is Common Law? A Guide for Non-Lawyers

What is common law exactly, where did it come from, and how is it practiced in the United States? Common law, in contrast to the civil law system, rests on legal precedent and the fair application of prior legal decisions. A closer look at common law, as with the civil law system, reveals the constitutional Framers’ intention for consistency and stability in legal processes and outcomes.

What Is Common Law? The Basics

Common law is a series of past precedents that guide a legal system. Judges and juries create these initially unwritten laws based on their legal conclusions of the facts and circumstances in a case and these court opinions form precedents. In this way, common law can come together to collectively shape future judicial decisions on such cases. The common law tradition is when courts look back at past precedent for the basis of their future decisions.

An example of the power of the common law tradition can be found in the Brown v. Board of Education decision. The Supreme Court, in a sweeping precedent, established that racial segregation could no longer be the law of the land and paved the way for greater racial equality in America. Consequently, lower courts had to follow suit and adapt their rulings to this new precedent.

Origins of Common Law

Common law began in the 12th century in the King’s Court in England. It helped to integrate a more tribal society at that time into one centralized government. The common law system was imported from England by the American colonies.

U.S. innovations to common law include a greater distrust of centralized authority and a stronger reliance on common law precedent. It has been used as the legal system since the nation’s inception. Common law is also practiced in Hong Kong, the United Kingdom, Australia, Canada, and New Zealand, among other nations.

What Is Common Law and Stare Decisis

The legal doctrine of “stare decisis” is the formal embodiment of the common law tradition. It maintains that similar rulings should have similar outcomes. Stare decisis is the judicial imperative that a court must look to prior, similar opinions as precedent to guide its opinion of the case at hand.

When common law attorneys plead their cases, much of their legal argument is based on stare decisis and the authority of prior caselaw. In situations where a case before the court has no prior court decision to guide the outcome, it’s called a case of “first impression” and it can set a new precedent to be followed.

Another important aspect of common law is adherence to the principle that a higher court’s ruling should be binding on future lower court opinions. Lower courts can sometimes choose to modify their reliance on precedent if the present case is significantly different. A lower court does not have the authority to overturn the precedent of a higher court and could get reversed on appeal if it tried to do so. It is the judge’s responsibility to decide which precedents govern the case as “judicially dispositive,” or controlling in the case.

The doctrine of stare decisis and the common law tradition provide the legal system with some measure of stability and predictability that society can rely upon.

Types of Common Law

There are two primary forms of common law traditions in the United States which differ primarily in the relationship between common law and other forms of law, like statutes passed by legislatures or regulations issued by state or federal agencies. The two forms are:

What Is Common Law Compared to Civil Law?

Civil law is the set of comprehensive statutes, regulations, and laws that legislators pass to create the U.S. legal system. A civil law system clearly defines the types of cases that can be brought to court, the procedures that govern them, and the sanctions that can be applied. The goal of a civil law society is to have a more standardized and consistent means of legal resolution.

A judge in a civil law court relies on these laws to render their opinion and is not swayed as much by precedent. As such, civil law judges are somewhat less predictable in cases where there is no direct statute on point. In these systems, legislatures can still look to common law to modify statutes and enact new laws.

Common Law Marriage: An Enduring Example

Perhaps the best example of common law in the modern era is common law marriage, which is still the law in some states. This form of marriage was notably recognized by the U.S. Supreme Court in 1877. Since then, the common law would recognize less formal marriages where a couple showed an intention to hold themselves out to society as married and who had been together for a certain amount of time.

Despite its established origins, common law marriage is only recognized in a handful of states. It’s a creature of common law because it’s not based on statutes, but instead gained its force of the law through decades of caselaw.

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Common law

From Wikipedia, the free encyclopedia

In law, common law, also known as judicial precedent, judge-made law, or case law, is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. [2] [3] [4] The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a «matter of first impression»), and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue (one party or the other has to win, and on disagreements of law, judges make that decision). [5] The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, [4] [6] stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch (the interactions among these different sources of law are explained later in this article). Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems. [7]

The common law, so named because it was «common» to all the king’s courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. [8] The British Empire later spread the English legal system to its far flung colonies, many of which retain the common law system today. These «common law systems» are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system. [9] [10] [11] [12]

Today, one-third of the world’s population lives in common law jurisdictions or in systems mixed with civil law, including [13] Antigua and Barbuda, Australia, [14] [15] Bahamas, Bangladesh, Barbados, [16] Belize, Botswana, Burma, Cameroon, Canada (both the federal system and all its provinces except Quebec), Cyprus, Dominica, Fiji, Ghana, Grenada, Guyana, Hong Kong, India, Ireland, Israel, Jamaica, Kenya, Liberia, Malaysia, Malta, Marshall Islands, Micronesia, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Palau, Papua New Guinea, Philippines, Sierra Leone, Singapore, South Africa, Sri Lanka, Trinidad and Tobago, the United Kingdom (including its overseas territories such as Gibraltar), the United States (both the federal system and 49 of its 50 states), and Zimbabwe. Some of these countries have variants on common law systems. In these countries, common law is considered synonymous with case law. [12]