What is 'Common Law'?

Common law is a body of unwritten laws based on precedents established by the courts. Common law influences the decision-making process in novel cases where the outcome cannot be determined based on existing statutes. The U.S. common-law system evolved from a British precolonial tradition that spread to North America and other continents during the colonial period.

BREAKING DOWN 'Common Law'

A precedent, known as stare decisis, is a history of judicial decisions that forms the basis of evaluation for future cases. Common law, also known as case law, relies on detailed records of similar cases and statutes because there is no official legal code that can be applied to a case at hand. The judge presiding over a court case determines which precedents apply. The precedents of higher courts are binding on lower courts to promote 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 However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case.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.

The Difference Between Common Law and Civil Law

Civil law is a comprehensive, 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 claims and the punishment for an offense. Judicial authorities use the conditions in the applicable civil code to evaluate 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.

Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Similar to civil law, the goal of common law is to establish consistent outcomes by applying the same standards of interpretation. In some instances, precedent depends on the case-by-case traditions of individual jurisdictions. As a result, elements of common law may differ among districts.

As judges present the precedents that apply to a case, they can significantly influence the criteria a jury uses to interpret a case. Historically, the traditions of common law have led to unfair marginalization or empowerment 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 Whether they are outdated or biased, past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.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, such as women in the 19th century who fought for women's rights, to pursue favorable rulings until popular thought or civil legislation changes the interpretation of common law.

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