Common Law v Civil Law: Introduction
The power to make law in every country by the doctrine of separation of power rest on the legislative arm of government. It is the legislators that make laws that regulate every country, her government and citizens.
While the legislators make laws, it is the judiciary arm of government that give interpretation to laws made by the legislators, where necessary to resolve issues before the court.
However, in trying to interpret the laws made by legislators, the court or judiciary make pronouncements that bind the parties before the court and subsequently become a precedent whenever a similar matter resurfaces in the court in future.
This was how common law doctrine was conceived, and it has become essential part of justice system as encapsulated in the doctrine of Stare decisis et non quieta movere.
Meaning of Common law
Common laws are body of laws made by Judges and tribunals in the course of judicial Proceedings. Common law emanates from ratio decidendi of courts judgement and opinion of judges or tribunals.
According to investopedia, Common law is a body of unwritten laws based on legal precedents established by the courts and it is drawn from institutionalized opinions and interpretations from judicial authorities and public juries.
This is why Common law is also referred to as case law, judge-made law or judicial precedent.
Countries Where Common Applies.
Common law applies mostly in UK and the member States of the Commonwealth including US,Australia, South Africa Canada, Hong Kong, India, New Zealand, Bahamas, Cameroon, Nigeria, Namibia, Guyana, Israel, Malaysia, India, Cyprus etc.
Importance of common law
The fundamental goal of common law is to establish consistent outcomes by applying the same standards of interpretation to every matter that is brought to courts or tribunals.
Difference between Common law and Civil Law
Civil laws are laws made by legislators. These laws, also referred to as statutes, establish civil rights and obligations.
It is civil laws that court interpretes in determining rights and liabilities of parties, and the interpretation of same give rise to common law.
Common law is not law in strict sense of it. This is because, it is not within the statutory powers of court to make law but to Interprete law.
In other words, common law are mere decisions of court that has become binding on the court itself and lower courts.
Common laws are merely persuasive in nature. It only encourage the court to adopt its earlier decisions in the case with similar characteristics as the one before the court.
Judges(Court) are not bound to follow this earlier decisions. Court can vary the decision or deviate entirely from the precedent.
Again, Judicial precedent or case laws, does not bind a court Superior in hierarchy to the one that made the decision. This is another loophole in the doctrine of stare decisis.
Again, Civil laws are more consistent than case laws. This is because, it takes time before legislators can amend a civil law. But case laws are amended on daily basis, as the facts of the case before the court may require.
Common laws are not enforceable unlike Civil laws. The only way common law is necessary, is when a similar case reappears in court. Until then, common laws remain dormant and toothless, while Civil laws are envoked on daily basis.
Eamples of Common Law
Common law Marriage.
Common law marriage represents legal framework which assume people to be married although not legally or religiously married.
In other words, a Union need not be registered before people will be perceived to be married.
Common law Marriage is also regarded as non-ceremonial marriage. This is because, parties need not celebrate their marriage, neither do they require license to be regarded as married.
This type of marriages were not common to United States. But with time, Some States Statute now allow it.These States include:
Montana, kansas, Iowa, Texas, South Carolina, Colorado, Alabama and New Hemisphere
Common Law in US and UK
In US, common law co-exist with Civil law. The common law aspect of US legal system originated from the Medieval England and has since be inculcated into US legal jurisprudence.
Again, with the rise of cases daily, and the impact of technology in the countries legal system, common law has become an integral part of US legal system.
In UK, the English common law as noted by Britannia originated in the early Middle Ages in the King’s Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London.
Common law then, focused mainly on procedural remedies instead of Substantive rights but has been developed overtime by Judges to focus on substantive rights rather than procedural remedies.
A good example of common law in UK, is the common law offence of outraging public decency. This law has been interpreted to include upskirting- the use of camera in-between someone’s leg to take picture without the person’s consent.