Common Law Foundations

What are Common Law Foundations?

Meaning of Common Law Foundations: – Common law foundations are a body of laws which are unwritten and are based on legal precedents that are established by the courts. Common law is also known as case law and it is a body of laws which are unwritten and are based on legal precedents established by the courts. Common law draws from institutional opinions and interpretations from judicial authorities and public spheres. Common laws sometimes prove to be the motivation to enact new laws.

Common law foundations

Common law affects the decision-making process in unusual cases, where an outcome cannot be determined based on existing statutes or written rules of law. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law.

American common law system developed from a British tradition that spread to North America during the colonial period of the 17th and 18th centuries. Common law also prevails in Australia, Canada, Hong Kong, India, New Zealand and the United Kingdom.

Understanding Common Law Foundations

A judicial precedent is also known ‘Stare Decisis’. It ensures that cases with similar scenarios and facts are approached in the same way. Simply put, it obliges the courts to follow the legal precedent set by previous rulings. Common law, also known as case law, relies on a detailed record of similar situations and laws because there is no official legal code that can apply in a case.

The judge presiding over a case determines which precedents apply in that particular case. The precedent set by the High Courts is binding on cases tried in lower courts. This system promotes stability in the American legal justice system.

However, lower courts may choose to amend or deviate from the precedents if they are older or if the current case is significantly different from the preceding case. Lower courts can also reverse precedent, but this is rarely the case.

Common Law vs. Civil Law

Civil law is a broad, codified set of legal statutes made by legislators. A civil system clearly defines cases that can be brought to court, the process of handling claims and punishment for a crime.

Judicial officers use the terms in the applicable Civil Code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the aim of standardized codes is to create order and also reduce biased systems in which laws are applied differently from case to case.

Common law draws from institutional opinions and interpretations from judicial authorities and public spheres. Similar to civil law, common law aims to establish consistent results by applying the same standards of interpretation.

In some instances, precedent relies on the case-by-case traditions of individual courts. As a result, elements of the common law may vary between districts.

Special Considerations

As judges present precedents that apply to a case, they can significantly affect the criteria that a jury uses to interpret a case. Historically, traditions of common law have led to unfair marginalization or segregation of some groups. Whether they are old or biased, past decisions remain to shape future regimes, unless social changes prompt a judicial institution to reverse the precedent.

This system makes it harder for marginalized parties to make favorable decisions until popular thought or civil law changes the interpretation of common law. Feminists fought for women’s rights in the late 19th and early 20th centuries, often encountering such difficulties. For example, England had common law until the late 1970s, when couples divorced, fathers – rather than mothers – were entitled to custody of the children, a prejudice that actually implicated women in marriages.

Example of Common Law

From time to time, common law has furnished the basis for new legislation to be written. For example, the U.K. has long had a common-law offense of “outraging public decency.” 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 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. 

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