Common law definition: history, uses and example

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What is the common law?

Common law is a collection of unwritten laws based on legal precedents established by the courts. The common law influences the decision-making process in unusual cases where the outcome cannot be determined on the basis of existing statutes or written rules of law. The American common law system evolved from a British tradition that spread to North America during the colonial period of the 17th and 18th centuries. Common law is also practiced in Australia, Canada, Hong Kong, India, New Zealand and the United Kingdom.

Key points to remember

  • Common law, also known as case law, is a collection of unwritten laws based on legal precedents set by the courts.
  • The common law draws on the opinions and institutionalized interpretations of judicial authorities and public juries.
  • Common laws are sometimes the source of inspiration for the promulgation of new laws.

Now take a look: what is common law?

Understanding the Common Law

A precedent, known as stare decisis, is a history of court decisions that form the basis of assessment for future cases. Common law, also known as case law, relies on detailed records of similar situations and laws, as there is no formal legal code that can apply to a particular case.

The presiding judge of a case determines which precedents apply to that particular case. The example given by higher courts is binding on cases tried by lower courts. This system promotes the stability and consistency of the American judicial system. However, lower courts may choose to modify or depart from precedents if they are obsolete or if the current case is substantially different from the previous case. Lower courts can also choose to set aside the previous one, but this rarely happens.

Common Law vs. Civil law

Civil law is a comprehensive and 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 complaints and the sanction of an offense. Judicial authorities use the conditions of the applicable civil code to assess 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.

The common law draws on the opinions and institutionalized interpretations of judicial authorities and public juries. Like civil law, the objective of the common law is to establish consistent results by applying the same standards of interpretation. In some cases, the precedent depends on the case-by-case traditions of individual jurisdictions. Therefore, the elements of the common law may differ from district to district.

De facto marriage

A common-law marriage, also known as a non-ceremonial marriage, is a legal framework that can allow couples to be considered married without having officially registered their union as a civil or religious marriage. While common law is not common in the United States, there are a number of states that have statutes or allow common law marriage if they meet certain requirements, including:

  • Colorado
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • Caroline from the south
  • Texas
  • Utah
  • The District of Colombia

A number of states, including Alabama, recently abolished laws allowing common law marriage. In addition to these states, Iowa, Rhode Island, and the District of Columbia allow common-law same-sex marriage.

Special considerations

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

This system makes it difficult for marginalized parties to obtain favorable decisions until popular thought or civil law changes the interpretation of the common law. Nineteenth and early twentieth century feminists who fought for women’s rights often faced such difficulties. For example, in England, common law, until the 1970s, stipulated that when couples divorced, fathers, rather than mothers, were entitled to custody of children, a prejudice that prevented women from marrying.

Common Law Example

From time to time, the common law has provided the basis for the drafting of new laws. For example, the UK has long had a common law offense of “contempt of morality”. Over the past decade, authorities have used this old common law to pursue a new intrusive activity called upskirting: the practice of inserting a camera between a person’s legs, without their consent or without their knowledge, to take a photo or video of their private parts. for the purposes of sexual gratification, humiliation or distress.

In February 2019, the UK Parliament passed the Voyeurism (Offenses) Act which officially makes upskirting a felony, punishable by up to two years in prison and the possibility of registering a person convicted on the sex offender registry.

Common Law FAQs

What is a simple common law definition?

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

Is the common law still used today?

Today, the United States operates under a dual system of common law and civil law. Courts, for example, operate under the common law.

What is an example of common law?

The concept of de facto marriage, which recognizes rights similar to those who have a marriage license to couples who are not officially married if several conditions are met, is an example of common law in action today.

Why is the common law important?

The common law emphasizes precedents while leaving a certain freedom of interpretation. The value of a common law system is that the law can be adapted to situations that were not contemplated at the time by the legislature.

What is British common law?

American common law originated in medieval England, however, today the United States and the United Kingdom operate under a dual system of common law and civil law.

The bottom line

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


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