What is Common Law? Difference between Common Law vs. Civil Law

Common law is a foundational legal system that has played a significant role in shaping modern legal frameworks across various jurisdictions. Its historical origins, principles, and characteristics have established it as a cornerstone of legal systems in countries like the United States, Canada, Australia, India, Bangladesh, and many others. This article aims to provide a comprehensive definition and overview of common law, tracing its evolution, highlighting its key principles, and differentiating it from civil law.

What is Common Law?

Common law, broadly characterized, encompasses a framework of legal principles and methodologies employed within court proceedings to facilitate the attainment of fair and impartial resolutions. Common law is different from civil law systems, which are based on written laws and codes. It can be described as a “body of law” primarily shaped by judicial decisions, as opposed to being solely dictated by written codes or statutes. Civil law systems are used in many countries around the world, including France, Germany, Japan, and China.

To offer a definite understanding, the term common law refers to the legal system or body of law that is based on judicial decisions rather than written statutes or codes. Common law is also known as case law or precedent because it relies on the principle of stare decisis, which means “to stand by things decided”. In practical terms, stare decisis mandates that courts and judges adhere to precedent and earlier rulings—referred to as caselaw—when addressing analogous cases in the future. For instance, if a court arrives at a specific judgment based on particular facts, that ruling must be upheld in subsequent instances dealing with similar issues. Moreover, decisions rendered by higher courts, such as a jurisdiction’s supreme court, carry authoritative weight over lower courts within the same jurisdiction. This helps to ensure that the law is fair and consistent and that people know what the law is.

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Common law also relies on the adversarial system, which means that there are two sides to every case, with each side represented by a lawyer. The lawyers present their arguments to the judge or jury, and the judge or jury decides the case based on the evidence presented.

Common law systems typically use jury trials, in which a group of citizens decides the verdict in a case. This helps to ensure that the law is applied fairly to everyone, regardless of their social status or wealth.

Some examples of common law include common law marriage, common law property, common law contracts, common law torts (civil wrongs), common law remedies (legal solutions), common law negligence (failure to exercise reasonable care), common law equity (fairness), common law constitutional law (laws governing government), common law business law (laws governing businesses), common law family law (laws governing families), and common law legal history (history of the development of common law).

Origin and Historical Development of Common Law

The common law system originated in England in the Middle Ages. It developed as a way to resolve disputes when there were no written laws to apply. Judges would look to the decisions of previous judges in similar cases to decide how to rule in the current case. This system of precedent helped to ensure that the law was applied fairly and consistently.

The common law system was brought to the United States by the British colonists. It is the basis of the legal system in the United States today, as well as in many other countries around the world.

The origin of the common law system is often traced back to the reign of King Henry II (1154–1189). Henry II established a system of royal courts that were separate from the local courts. These royal courts were staffed by professional judges who were trained in the law. The judges in the royal courts were bound by precedent, which meant that they had to follow the decisions of previous judges in similar cases. This system of precedent helped to ensure that the law was applied fairly and consistently throughout the kingdom.

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The common law system continued to develop in England during the centuries following the reign of Henry II. In the 17th century, the English Parliament began to pass statutes that supplemented the common law. However, the common law remained the primary source of law in England until the 20th century.

The common law system was brought to the United States by the British colonists. The first English settlements in North America were established in the 17th century. The colonists brought with them the common law system, which became the basis of the legal system in the United States.

The common law system has continued to develop in the United States since the country’s founding. In the 19th century, the United States Supreme Court began to play a more active role in shaping the common law. The Court has issued a number of landmark decisions that have helped to shape the common law in the United States, such as Marbury v. Madison (1803), Brown v. Board of Education (1954), and Roe v. Wade (1973).

The common law system is still the basis of the legal system in the United States today. However, common law has been influenced by other legal systems, such as the civil law system. The United States Supreme Court has also played a role in shaping the common law, as it has issued a number of landmark decisions that have helped to shape the common law in the United States.

Here are some of the key events in the historical development of the common law system:

• 1154–1189: King Henry II establishes a system of royal courts that are separate from the local courts.
• 1215: The Magna Carta is signed, which limits the power of the king and establishes the principle of due process of law.
• 1285: The Statute of Westminster I is passed, which codifies some aspects of the common law.
• 17th century: The English Parliament begins to pass statutes that supplement the common law.
• 1776: The United States Declaration of Independence is signed, which proclaims that all men are created equal and have certain inalienable rights, including life, liberty, and the pursuit of happiness.
• 1787: The United States Constitution is ratified, which establishes a system of government based on the rule of law.
• 1803: Marbury v. Madison establishes the principle of judicial review, which gives the courts the power to strike down laws that they deem to be unconstitutional.
• 1954: Brown v. Board of Education overturns the “separate but equal” doctrine, which had allowed racial segregation in public schools.
• 1973: Roe v. Wade legalizes abortion in the United States.

The common law system is a complex and ever-evolving system of law. It has been shaped by centuries of history and tradition, and it continues to evolve today. The common law system is a vital part of the legal systems of many countries around the world, including the United States.

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Key Features of Common Law

The key features of common law include:

Judicial Precedent: Central to common law is the principle of stare decisis, which means “to stand by things decided.” This doctrine requires courts to adhere to the decisions and rulings of previous cases, ensuring consistency and predictability in the legal system. It is shaped by the accumulation of judicial decisions and interpretations over time. Courts rely on past cases to establish legal principles and guidelines for future cases, providing a foundation for legal reasoning and decision-making.

Unwritten and Evolving: Unlike civil law systems that often rely on comprehensive codes, common law is largely unwritten and is based on judge-made law. It evolves through the continuous development of legal principles and doctrines in response to changing societal needs and values.

Flexibility and Adaptability: Common law’s flexibility allows it to adapt to changing circumstances without the need for frequent legislative amendments. Judges have the authority to fill gaps in the law and apply principles to new and unforeseen situations, ensuring the law remains relevant and effective.

Freedom of Contract: Common law emphasizes the freedom of contract, allowing parties to negotiate and establish terms according to their agreements. While some provisions may be implied by law, common law generally favors enforcing the terms and intentions of the parties involved.

Case-By-Case Adjudication: Common law involves a case-by-case approach, where each case’s unique facts and circumstances play a significant role in determining the outcome. Judges analyze and apply existing precedents to reach decisions that are consistent with prior rulings and principles.

Evolution from Custom: The common law system evolved from historical customs and practices, particularly in England, where judges relied on common customs and traditions to make legal decisions. Over time, these customs transformed into established legal principles and precedents.

Wide Applicability: Common law has influenced legal systems beyond its origins in England, shaping the legal frameworks of countries such as the United States, Australia, Canada, India, and others. This widespread adoption demonstrates its enduring significance.

Common law fosters a dynamic legal system that ensures consistency while allowing for growth and development in response to changing societal needs and circumstances.

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Common law Principles

There are several key principles that underlie the common law system. These include:

Stare decisis: As mentioned above, judges are bound by precedent. This means that they must follow the decisions of previous judges in similar cases. This principle helps to ensure that the law is applied fairly and consistently.

Equity: In addition to precedent, common law judges also have the power to apply equity. Equity is a body of law that is based on fairness and justice. Judges can use equity to supplement the common law when it is deemed necessary.

Natural law: Common law judges also consider natural law when making decisions. Natural law is a set of universal principles that are believed to be inherent in nature. Judges may use natural law to interpret the common law or to fill in gaps in the law.

Common Law vs Civil Law

Common Law and Civil Law are two of the main legal systems used around the world. They have distinct characteristics and historical origins that shape how they operate. Here’s a comprehensive comparison between Common Law and Civil Law based on the provided information:

Historical Origins

   – Common Law: Common Law originated in England and evolved from the practices of the English monarchy and the decisions of the courts. It emphasizes case law, where published judicial opinions are of primary importance in shaping legal principles.

   – Civil Law: Civil Law traces its origins to Roman law and the codifications of legal statutes. It relies on written codes and legislation as the primary source of law, with judicial decisions playing a more limited role.

Source of Law

   – Common Law: Case law, in the form of judicial decisions and precedents, is a significant source of law in Common Law systems. Judges often interpret and apply existing laws to specific cases, contributing to the evolution of legal principles.

   – Civil Law: Civil Law systems heavily rely on codified statutes and legislation as the primary source of law. Judges apply the law to the case at hand, with less emphasis on creating new legal principles through judicial decisions.

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Role of Judges

   – Common Law: Judges in Common Law systems play an active role in interpreting the law, establishing legal precedents, and shaping legal principles through their decisions.

   – Civil Law: Judges in Civil Law systems have a more limited role, primarily applying the law to the specific case before them. They focus on ensuring consistency and predictability in applying existing laws.

Use of Precedents

   – Common Law: Precedents set by higher courts are binding on lower courts and are essential for ensuring consistency in legal decisions.

   – Civil Law: Precedents are less central in Civil Law systems, and past judgments serve as loose guides rather than strict rules.

Flexibility and Adaptability

   – Common Law: Common Law systems are adaptable and can evolve over time as new cases and circumstances arise, allowing for a flexible approach to legal interpretation.

   – Civil Law: Civil Law systems are often more structured and less flexible, as they rely on codified laws that cover various eventualities.

Countries and Examples

   – Common Law: Common Law systems are found in countries like the United States, England, India, and Canada.

   – Civil Law: Civil Law systems are used in countries like France, Germany, China, and Japan.

It’s important to note that, while both Common Law and Civil Law systems have their unique characteristics and historical foundations, many legal systems today incorporate elements of both, creating hybrid systems that combine features of both Common Law and Civil Law.

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Concluding Remarks

While common law offers flexibility and adaptability, it also faces criticisms. Critics argue that reliance on precedent can lead to inconsistencies and unpredictability in legal outcomes. Balancing the need for stability through precedent with the necessity of adapting to changing circumstances poses an ongoing challenge.

In conclusion, common law has a rich historical significance and remains a cornerstone of modern legal systems. Its principles, including stare decisis and judge-made law, have shaped legal frameworks, provided remedies, and guided legal decision-making. Despite challenges, common law’s enduring impact and adaptability highlight its continued importance in contemporary societies, solidifying its place as a foundational legal system.