Common law is a legal system that originated in England and is now used in many countries, including the United States, Canada, Australia, and others. It is characterized by the central role of judicial decisions in shaping the law, alongside statutes enacted by legislatures.
- Legal principles and rules are developed through *judicial decisions* (case law) made by judges in courts.
- *Precedents*: Past judicial decisions become binding (stare decisis) or persuasive for future cases with similar facts, ensuring consistency and stability.
- Statutes passed by legislatures coexist with judge-made law; courts interpret and apply both.
- Common law evolves through court rulings, allowing adaptation to new circumstances without waiting for legislative action.
- Civil law systems, by contrast, rely mainly on comprehensive written codes, and judicial decisions have less precedential weight.
Common law is defined by the use of judicial precedents (past court decisions) as a primary source of law.
Common law originated in England.
Common law forms the basis of the legal systems in England, the United States, Canada, Australia, and several other countries.
Source Material
Document: Common Law
Source Material
Document: What is Common Law?
History of Common Law
Common law developed after the Norman Conquest of England in 1066, when the monarchy sought to unify and centralize legal practices across the country.
- Royal judges traveled circuit, applying consistent rules—this judge-made "common" law replaced diverse local customs.
- The *Magna Carta* (1215) limited royal power and laid groundwork for legal rights and due process.
- Over centuries, judicial decisions in royal courts formed an extensive body of precedents.
- Common law spread to English colonies and evolved differently from civil law traditions on the continent.
Common law began developing after the Norman Conquest in 1066.
The Magna Carta (1215) played a key role in common law's development.
Royal judges created uniform principles and applied them widely, forming the basis of common law.
Common law spread through English colonization.
Source Material
Document: History of Common Law
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Document: The Origins of the Common Law
Functioning of Common Law
In a common law system, judicial decisions are primary sources of law, with courts playing a central role in legal development and interpretation.
- *Stare decisis*: Courts must follow binding precedents from higher courts in similar cases; lower courts generally follow decisions of higher courts.
- When no precedent exists, judges’ decisions create new law (*case law*) that future courts may follow.
- Statutes may be interpreted broadly or narrowly based on precedents.
- Lawyers rely heavily on past cases to argue how courts should decide.
- Common law covers many areas, especially contracts, torts, property, and commercial law.
'Stare decisis' means courts follow established precedents for consistency.
Judges may create new legal principles (case law) when no precedent exists.
Lawyers cite precedents to persuade judges to rule similarly.
Common law principles primarily govern contracts, torts, and property.
Source Material
Document: How Common Law Works
Source Material
Document: Common Law System
Precedent and Stare Decisis
Precedent is a cornerstone of common law, ensuring that courts follow prior decisions for similar cases to maintain legal consistency.
- *Precedent*: A prior judicial decision that serves as a rule for deciding subsequent similar cases.
- *Stare decisis*: The doctrine that courts should follow established precedents to ensure predictability and fairness.
- Higher court decisions are *binding precedents* for lower courts.
- Lower courts’ decisions may be *persuasive precedents* in other jurisdictions but not binding.
- Precedents can only be overturned by higher courts or legislatures.
A precedent is a past court decision used to guide future cases.
'Stare decisis' promotes legal stability and predictability.
Precedents can be overturned by higher courts or legislatures, especially if circumstances change.
Precedents may not apply if case facts differ significantly or if a higher court overturns them.
Source Material
Document: Precedent and Stare Decisis
Source Material
Document: Stare Decisis
Comparison with Civil Law Systems
Civil law and common law systems differ significantly in their sources and methods of lawmaking and application.
| Feature | Common Law | Civil Law |
|---|---|---|
| Origins | England | Roman law / Continental Europe |
| Main Source of Law | Judicial decisions (precedents) and statutes | Written codes and statutes |
| Role of Judges | Create and interpret law through rulings | Apply and interpret codes; limited law-making |
| Precedent (Stare Decisis) | Central (binding) | Minimal; judicial decisions not binding |
| Legal Codes | Uncodified or limited codification | Comprehensive and detailed codes |
| Adaptability | Evolves via court rulings | Codes amended by legislature |
Common law relies heavily on judicial precedents, whereas civil law is based on written codes.
Judges in common law systems have more law-making power through decisions.
Civil law systems are common in France, Germany, Japan, and much of Europe and Latin America.
Civil law judges view past decisions as persuasive, not binding.
Source Material
Document: Common Law vs Civil Law
Source Material
Document: Civil Law
Conclusion
Common law is a dynamic legal system rooted in judicial decisions, where precedents ensure consistency and adaptability worldwide.
- Common law emphasizes judge-made law and precedents (stare decisis).
- It originated in England and spread to many countries through colonization.
- Common law differs from civil law, which is based on comprehensive written codes.
Common law is defined by the use of judicial precedents.
Common law originated in England.
Common law is most influential in contracts, torts, and property law.