What Is Common Law?
Common Law Defined
Common law is a series of unwritten laws based on past precedent.
Courts create common law by trying different types of cases and establishing a precedent for rulings in such cases.
This process differs from that for civil law, where laws are created based on statutes passed by legislative bodies, or regulations, which are created by the government’s executive branch.
Common Law Originated
Common law originated in England in the 12th century and is based on the concept of Stare Decisis (pronounced Starry Desi-sis), which is the idea that in an equal and fair society, similar cases should have similar outcomes.
Common Law Example
An example of a common law ruling that set precedent is that of the Brown v. Board of Education case in the United States.
The case banned segregation in all forms. The Supreme Court’s ruling established a common law precedent because there were no prior cases involving segregation in public schools before Brown v. Board of Education.
The Brown v. Board of Education judgment is cited as a precedent in court rulings that paved the way for racial integration of American society.
Types Of Common Law
There are two types of common law:
- General common law are laws created for situations and circumstances that do not have a precedent in existing common law. Contract law is an example of common law.
- Interstitial common laws are temporary laws that are created for interpretations of existing statutes. An example of this type of law is the choice to exclude wheelchairs from a “no wheeled vehicles on sidewalk” ordinance.
Common Law Differences
In contrast to common law, civil law is derived from the Roman system of civil code.
Federal, state, and city legislatures are responsible for making laws, also known as statutes, that govern civil life in this system.
Common law can be modified into civil code at the state level by amending it with a statute.
Advantages & Disadvantages Of Common Law
Advantages of Common Law:
- The judiciary, which is responsible for making common law, is an independent body that is not beholden to popular sentiment and practice while making laws.
- It is easier and quicker to enact common law than civil law because the latter requires considerable debate and consensus.
- Common law systems provide little oversight for law making authorities in the judicial branch, who are not appointed through election and cannot be removed unless for misconduct.
- Because they heavily rely on past rulings, common law systems can become outdated. Society is constantly in a state of flux and past rulings, which may have seemed right then, may no longer apply in new cases.