Common Law and Civil Law Short Note

World University of Bangladesh
Course: Roman Law and Hindu Law
Lecturer: Shadman Akib Mostafa MCIArb MAIADR APD
Common Law
What Is Common Law?
Common law is the body of law that has evolved due to judgments in
individual legal disputes. These unwritten laws evolve steadily through
time in response to various unique circumstances. The set of laws is
thus continuously modified and improved and serves as a guide in the
case of unsolvable disputes.
The law is adaptable as it may take years of parliament to enact new

laws. Moreover, new laws or changes to existing laws are typically the
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results of extensive consultation with different parties and points of
view. At the same time, rules on specific topics may be more difficult
for public members to identify and comprehend.
Key Takeaways
• Common law is a body of law that has evolved from past court
proceedings. They are the result of court decisions over a long period in
many cases.
• It can develop and evolve according to changing times. It is, therefore, a
flexible, constant procedure leading to the evolution of law.
• The goal of the development of the law was to safeguard private
property rights and restrict the state’s capacity to confiscate resources.
• The basis of law is the belief that to prevent unfairness, every
circumstance needs identical addressing.
Common Law Explained

Common law, developed in England starting around the 11th century,
was eventually embraced by the United States, Canada, Australia, New
Zealand, and other members of the British Commonwealth. When
common law was first formed in England, it was a method for
implementing continental feudal law. Over time, this method became a
defining feature of English culture and stood apart from its application
on the continent. It was and is a specific investigation and decision-
making process.
The goal of the development of English common law was to safeguard

private property rights and restrict the state’s capacity to confiscate
resources. At the beginning of the common law, the goal was to create a
process that, if followed correctly, would lead to a ruling favoring the
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plaintiff or defendant. The goal was to achieve justice through the
process, not through implementing a rule or legislation.
Common law by state is based on the idea that situations need similar
handling to avoid unfairness. When a new scenario comes before a
court, a judge must review previous cases that are related and
incorporate the new situation into the overall framework. This ensures
that the law remains impartial. There will be changes only if a case
offers new issues that prior court rulings have not addressed, which
might make the court deviate from those principles. This can also
happen if the common law has become outmoded due to shifting
societal attitudes.
Characteristics Of Common Law

A common law framework generally has the following characteristics:
• First, there may not be written or defined constitutional laws and

regulations in the case of common law.
• Legal judgments or judicial rulings are final and conclusive.
• The court or by legislation appeals to the rulings of the highest court.
• There is wide freedom of contract. Only a small number of clauses are
legally implied in the contract by law. On the surface, anything not
specifically prohibited by law is allowed.
Examples
Check out these examples for a better understanding of the common
law:
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Example #1 – Common Law Court
Suppose the Supreme Court (common law court) of the U.S. has a case
that involves theft and murder. The judges will look into past cases of
theft and murder to fix the terms of the verdict. First, the court would
consider the usage of capital punishment for murder. However, since
capital punishment is extreme, the court may consider alternative
sentences to make a fair judgment.
Example #2 – Common Law for Marriage
Adultery is an example of a recent change in Namibian common law. In

the past, if one spouse had an affair, the other spouse could sue the
third party for damages if they knew about it. In 2016, the Supreme
Court of Namibia ruled that this court dispute no longer reflects public
or government opinion because Namibia’s constitutional values now
guide public policy. The Supreme Court gave a few reasons, one of
which was that the damage claim privilege was usually available only to
men. Others include that modern times do not hold the same level of
disapproval.
The law does not state that the cheating spouse must pay for the
damages. The case could harm the dignity and privacy of the unfaithful
partner. This could prove detrimental to the children of the couples.
Namibia’s Supreme Court decided that it would not permit proceedings
for damages for adultery in that country due to their incompatibility
with constitutional principles such as equality between men and
women in marriage and human dignity. This example shows the
common law for marriage evolving according to new changes.
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Common Law vs Civil Law
There are two primary legal systems today: common law and civil law.
Most nations incorporate one or both elements into their legal
frameworks. Developed in Europe, civil law finds its roots in Roman
law. The primary characteristic of the law is that it is present in civil
codes, characterized as “structured, authoritative, and acting as a
guiding statute with a broad scope.” It brought reforms and legal life to
nations.
Most civil codes came into being during the 19th and 20th centuries. As
a result, they are frequently grouped into Romanic and Germanic
families. Although civil codes from various nations do not all share the
same characteristics, certain elements serve as a unifying factor and
distinguish civil codes from those that operate under other systems.
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#1 – Method of Working
In the common law system, court decisions have dominated the

creation of the law, and a conceptual framework is absent. Instead,
statutes and codes outline the essential concepts and regulations in civil
law that the courts implement. As a result, statutes and codes take
precedence, with case law serving as a secondary source of law.
#2 – The Written Constitution
Common law by the state may or may not possess a written

constitution. However, civil law always has a written constitution.
#3 – Judicial Decisions
In this type of law, judicial decisions and rulings of courts are binding.
Civil law administrative and constitutional court decisions on laws and
regulations are binding on all but not third parties.
#4 – The Writings of Legal Scholars
The writings of legal scholars have little influence here. However, the
writings of legal scholars have significant influence in certain civil law
jurisdictions.
#5 – Freedom of Contracts
The freedom of contracts is extensive. Only a few clauses are legally

implied in contractual relationships. In civil law, freedom of contract is
considerably more limited. Several legal requirements are present in
every contract.
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Frequently Asked Questions
(FAQs)
1. Why is common law called common?
The procedures of the English kings’ courts in the centuries that
followed the Norman Conquest in 1066 were the source of the common
law, which got its name because it was “common” to all of the king’s
courts throughout England.
2. What’s the difference between common law and civil law?

In the common law system, court judgments have dominated the
development of the law, and there is no conceptual framework.
However, statutes and codes, which the courts apply, embody the
fundamental principles and rules of civil law. As a result, statutes and
codes are given priority.

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World University of Bangladesh

Course: Roman Law and Hindu Law

Lecturer: Shadman Akib Mostafa MCIArb MAIADR APD

The law is adaptable as it may take years of parliament to enact new

Common Law Explained

The goal of the development of English common law was to safeguard

Characteristics Of Common Law

• First, there may not be written or defined constitutional laws and

Example #2 – Common Law for Marriage

Adultery is an example of a recent change in Namibian common law. In

In the common law system, court decisions have dominated the

#2 – The Written Constitution

Common law by the state may or may not possess a written

#4 – The Writings of Legal Scholars

The freedom of contracts is extensive. Only a few clauses are legally

2. What’s the difference between common law and civil law?

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