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What Is Common Law?
Common law forms a vital part of the legal system in various countries, including the United States, where it evolved from longstanding British traditions. This body of unwritten laws is built upon legal precedents set by courts, serving as a critical guide in cases where answers aren’t readily found in existing statutes or written regulations. Countries such as Australia, Canada, India, and the UK also rely on common law to navigate unique legal scenarios that demand precedent-based justice.
Key Takeaways
- Common Law and Precedent: Common law is shaped by judicial precedents rather than formal statutes, offering flexibility that allows for judicial decisions based on previous rulings when written laws do not provide clear guidance.
- Comparison to Civil Law: Unlike civil law systems, which are based on comprehensive codes and defined statutory laws, common law relies on case-by-case judicial rulings to interpret and apply the law, leading to regional variations in legal outcomes.
- Common Law Marriage: Certain U.S. states recognize common law marriages, allowing couples to be considered legally married without a formal ceremony, although this provision is being reduced with some states recently abolishing it.
- Judicial Influence: Judges play a crucial role in common law by presenting applicable precedents, which can sometimes perpetuate outdated or biased interpretations unless societal changes prompt revisiting of these judicial decisions.
- Legislative Adaptation: Common law can inspire new legislation, as seen in the U.K., where the ancient common-law offense of “outraging public decency” paved the way for laws addressing modern issues like upskirting.
How Common Law Influences Legal Decisions
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 However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case.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.
Comparing Common Law and Civil Law Systems
Civil law is a detailed set of written laws made 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. Judges use the civil code to assess each case and make 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. Like civil law, common law aims for consistent results by applying the same rules. 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.
Exploring Common Law Marriage in the U.S.
A common-law marriage lets couples be seen as married without a civil or religious ceremony. 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:
- Colorado
- Iowa
- Kansas
- Montana
- New Hampshire
- South Carolina
- Texas
A number of states, including Alabama, recently abolished the statutes allowing for common law marriage.
Considerations and Challenges in Common Law
When judges present precedents, they can greatly affect how juries interpret cases. 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.
Real-World Examples of Common Law in Action
From time to time, common law has furnished the basis for new legislation to be written. For example, the U.K. has long recognized “outraging public decency” as a common-law offense. 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.
In February 2019, the U.K. Parliament passed the Voyeurism (Offences) Act that officially makes upskirting a crime, punishable by up to two years in prison and the possibility of placing a convicted individual on the sex offenders register.
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?
Common law is a body of unwritten laws based on legal precedents established by the courts.
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.
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