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Common law is a body of unwritten laws based on legal precedents established by the courts. 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. The U.S. common-law system evolved from a British tradition that spread to North America during the 17th- and 18th-century colonial period.
A precedent, known as stare decisis, is a history of judicial decisions which form the basis of evaluation for future cases. Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code which can apply to a case at hand.
Common law is practiced in many parts of the world including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts. This system promotes 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 However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case.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 LawCivil 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.
How Common Law Can Marginalize Certain Groups
As judges present the precedents which apply to a case, they can significantly influence the criteria that 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 to pursue favorable rulings until popular thought or civil legislation changes the interpretation of common law. Feminists in the 19th and early 20th centuries who fought for women's rights often faced such difficulties. For example, in England, common law as late as the 1970s held that, when couples divorced, fathers—rather than mothers—were entitled to custody of the children, a bias that in effect kept women trapped in marriages.
Real Life 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, 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.
