Common Law

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Blog Author :

Aswathi Jayachandran

Edited by :

Alfina L.

Reviewed by :

Dheeraj Vaidya, CFA, FRM

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What Is Common Law?

Common law is the body of law that has evolved due to judgments in individual legal disputes. These unwritten laws evolve steadily through time in response to various unique circumstances. The set of laws is thus continuously modified and improved and serves as a guide in the case of unsolvable disputes. 

Common Law

The law is adaptable as it may take years of parliament to enact new laws. Moreover, new laws or changes to existing laws are typically the results of extensive consultation with different parties and points of view. At the same time, rules on specific topics may be more difficult for public members to identify and comprehend. 

Table of contents
  • Common law is a body of law that has evolved from past court proceedings. They are the result of court decisions over a long period in many cases.
  • It can develop and evolve according to changing times. It is, therefore, a flexible, constant procedure leading to the evolution of law.
  • The goal of the development of the law was to safeguard private property rights and restrict the state's capacity to confiscate resources.
  • The basis of law is the belief that to prevent unfairness, every circumstance needs identical addressing.

Common Law Explained

Common law, developed in England starting around the 11th century, was eventually embraced by the United States, Canada, Australia, New Zealand, and other members of the British Commonwealth. When common law was first formed in England, it was a method for implementing continental feudal law. Over time, this method became a defining feature of English culture and stood apart from its application on the continent. It was and is a specific investigation and decision-making process.

The goal of the development of English common law was to safeguard private property rights and restrict the state's capacity to confiscate resources. At the beginning of the common law, the goal was to create a process that, if followed correctly, would lead to a ruling favoring the plaintiff or defendant. The goal was to achieve justice through the process, not through implementing a rule or legislation.

Common law by state is based on the idea that situations need similar handling to avoid unfairness. When a new scenario comes before a court, a judge must review previous cases that are related and incorporate the new situation into the overall framework. This ensures that the law remains impartial. There will be changes only if a case offers new issues that prior court rulings have not addressed, which might make the court deviate from those principles. This can also happen if the common law has become outmoded due to shifting societal attitudes.

Characteristics Of Common Law

A common law framework generally has the following characteristics:

  • First, there may not be written or defined constitutional laws and regulations in the case of common law.
  • Legal judgments or judicial rulings are final and conclusive.
  • The court or by legislation appeals to the rulings of the highest court.
  • There is wide freedom of contract. Only a small number of clauses are legally implied in the contract by law. On the surface, anything not specifically prohibited by law is allowed.

Examples

Check out these examples for a better understanding of the common law:

Example #1 - Common Law Court

Suppose the Supreme Court (common law court) of the U.S. has a case that involves theft and murder. The judges will look into past cases of theft and murder to fix the terms of the verdict. First, the court would consider the usage of capital punishment for murder. However, since capital punishment is extreme, the court may consider alternative sentences to make a fair judgment.

Example #2 - Common Law for Marriage

Adultery is an example of a recent change in Namibian common law. In the past, if one spouse had an affair, the other spouse could sue the third party for damages if they knew about it. In 2016, the Supreme Court of Namibia ruled that this court dispute no longer reflects public or government opinion because Namibia's constitutional values now guide public policy. The Supreme Court gave a few reasons, one of which was that the damage claim privilege was usually available only to men. Others include that modern times do not hold the same level of disapproval.

The law does not state that the cheating spouse must pay for the damages. The case could harm the dignity and privacy of the unfaithful partner. This could prove detrimental to the children of the couples. Namibia's Supreme Court decided that it would not permit proceedings for damages for adultery in that country due to their incompatibility with constitutional principles such as equality between men and women in marriage and human dignity. This example shows the common law for marriage evolving according to new changes.

Common Law vs Civil Law

There are two primary legal systems today: common law and civil law. Most nations incorporate one or both elements into their legal frameworks. Developed in Europe, civil law finds its roots in Roman law. The primary characteristic of the law is that it is present in civil codes, characterized as "structured, authoritative, and acting as a guiding statute with a broad scope." It brought reforms and legal life to nations.

Most civil codes came into being during the 19th and 20th centuries. As a result, they are frequently grouped into Romanic and Germanic families. Although civil codes from various nations do not all share the same characteristics, certain elements serve as a unifying factor and distinguish civil codes from those that operate under other systems.

#1 - Method of Working 

In the common law system, court decisions have dominated the creation of the law, and a conceptual framework is absent. Instead, statutes and codes outline the essential concepts and regulations in civil law that the courts implement. As a result, statutes and codes take precedence, with case law serving as a secondary source of law.

#2 - The Written Constitution

Common law by the state may or may not possess a written constitution. However, civil law always has a written constitution.

#3 - Judicial Decisions

In this type of law, judicial decisions and rulings of courts are binding. Civil law administrative and constitutional court decisions on laws and regulations are binding on all but not third parties.

The writings of legal scholars have little influence here. However, the writings of legal scholars have significant influence in certain civil law jurisdictions.

#5 - Freedom of Contracts

The freedom of contracts is extensive. Only a few clauses are legally implied in contractual relationships. In civil law, freedom of contract is considerably more limited. Several legal requirements are present in every contract. 

Frequently Asked Questions (FAQs)

1. Why is common law called common?

The procedures of the English kings' courts in the centuries that followed the Norman Conquest in 1066 were the source of the common law, which got its name because it was "common" to all of the king's courts throughout England.

2. What's the difference between common law and civil law?

In the common law system, court judgments have dominated the development of the law, and there is no conceptual framework. However, statutes and codes, which the courts apply, embody the fundamental principles and rules of civil law. As a result, statutes and codes are given priority.

3. Is the U.S. a common law country?

Most American law is derived from the common law system of English law at the federal and state levels. However, American law has significantly strayed from its English parent in content and method and has taken several innovations from civil law.