what is the common law essay

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Common Law meaning

Common law is a term used to refer to law that is developed through decisions of the court, rather than by relying solely on statutes or regulations. Also known as “ case law ,” or “case precedent ,” common law provides a contextual background for many legal concepts. Common laws vary depending on the jurisdiction , but in general, the ruling of a judge is often used as a basis for deciding future similar cases. To explore this concept, consider the following common law definition.

Definition of Common Law

• Laws that are based on court or tribunal decisions, which govern future decisions on similar cases.

1300-1350       Middle English

What is Common Law

Common law often refers to laws that are based on the customs and principles of society, which are used in court case decisions in situations not covered by civil law statutes. These decisions set a precedent that must be applied to future cases on the same subject.

While the term common law is used to refer to principles applied to court decisions, a common law system refers to a legal system that places great weight on judicial decisions made in prior similar cases. In the United States, common law, or precedent, is used to help ensure similar results in similar cases. Courts are bound by the decisions of higher courts on similar matters, by a principle of “ stare decisis .” If the court determines a case to be fundamentally different from prior cases heard by other courts, its decision is likely to create precedent for future cases on that subject.

History of Common Law

Common law is a term that was originally used in the 12th century, during the reign of Henry II of England. The ruler established secular tribunals, with the goal of establishing a unified system of deciding legal matters. The King’s judges in these tribunals respected the decisions of one another, such decisions creating a unified “common” law throughout England. The precedent set by the courts through the 12th and 13th centuries were often based on tradition and custom, and became known as a “common law” system.

Common law in the United States dates back to the arrival of the colonists, who brought with them the system of law with which they were most familiar. Following the American Revolution, the newly formed states adopted their own forms of common law, separate from the federal law.

Systems of Common Law vs. Civil Statutory Law

Systems of common law and civil statutory law differ in many ways. Rulings in a common law system rely heavily on prior decisions made in similar cases. Rulings in a statutory law system are based primarily statutory laws. This makes the method by which laws are developed and enacted. While common laws develop over time as judicial decisions are made, and used in future decisions, they generally do not become statutory laws enforceable by law enforcement or enforcement agencies. It takes time for the influence of common laws to spread and become common knowledge.

Statutory laws, on the other hand, rely on the legislative process, in which laws and ordinances are developed and voted on by representatives of the people. Once these new laws go into effect, they are enforceable by law enforcement or governmental agencies, and the letter of the law is usually applied in court. Because common law is based on judicial opinion , parties to a civil lawsuit may draw comparisons between precedent-setting cases. Statutory law does not allow for comparisons. For example, civil statutory laws govern such things as deadlines and statutes of limitations, allowed monetary damages , and sentencing.

Many countries rely on either the common law system, or a civil statutory law system. In the United States, the judicial system is a combination of the two, with statutory laws being applied where appropriate, while requiring the courts to adhere to precedent in determining cases not governed by statute.

Federal Common Law

The use of common law by federal courts is limited to deciding federal cases. While, in certain circumstances, federal court may have jurisdiction to hear a case under state law (known as “diversity jurisdiction”), it cannot create or apply federal common law or precedent to deciding a state law case. Rather, a federal judge hearing such a case must turn to state law precedent.

Common Law Examples

On July 27, 1934, Harry Tompkins was walking on a narrow footpath by the Erie Railroad tracks in Hughestown, Pennsylvania. As a train approached, something protruding from one of the railcars struck Tompkins and knocked him down, causing his arm to be crushed beneath a train wheel. The train was operated by a corporation registered in New York, so Tompkins filed his civil lawsuit in federal district court.

The district court judge who heard the case followed current federal law of the time, in applying federal common law to the case, rather than common law of either the state of Pennsylvania or New York. Federal common law applied a standard of “ordinary negligence ” when determining what level of care the railroad owed to individuals who are not employed by the railroad. Common law in the state of Pennsylvania, where the accident occurred, specifies that the railroad owes a “wanton negligence” duty of care to trespassers, which requires proof of a greater level of negligence. The court found in Tompkins’ favor, and awarded him damages.

Prior to the case of Tompkins v. Erie Railroad , it had already been determined that, when a case is heard in federal court in diversity , meaning that the case is filed in federal court because it crosses state jurisdictions, the state’s statutory law must be applied. It had also been ruled, however, that a federal court hearing a case in diversity was not required to apply the state’s common law, or precedent, to the case.

The railroad appealed the matter to the appellate court, then to the U.S. Supreme Court. After reviewing the case, the Supreme Court ruled that the federal district court did not have the authority to create federal common law when reviewing state law claims in diversity, but must apply state common law.

This topic was quite important, as it was an effort by the Supreme Court to address the issue of “forum shopping,” where plaintiffs in cases that cross jurisdictions take their case to the state or jurisdiction whose laws would give them the greatest advantage. With this decision, the Court overturned federal civil procedures, creating a mandate that federal common law should be applied only to strictly federal cases, and not to diversity cases.

Related Legal Terms and Issues

• Affirm – To uphold a lower court’s decision.
• Binding Precedent – A rule or principle established by a court, which other courts are obligated to follow.
• Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
• Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
• Diversity Jurisdiction – Jurisdiction of a U.S. federal court to hear a case between residents of different states, if it meets a specified monetary threshold.
• Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
• Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
• Stare Decisis – The principle that cases based on similar facts should be decided in a consistent manner, with similar results.

• A Short History of the Common Law

by Michael Parrington, October 2012

Why is its history so important to an understanding of the common law?

Introduction

History helps to understand how the platform for common law was created, why the procedure helped produce and gradually develop the body of law deemed the common law, and how the common law professionals helped administer, develop, and maintain law and procedure, and why it is still relevant today.

The common law was a historically deemed term that meant a law common to the people of England, controlled by the Royal courts.[1] However, this essay also considers the development, through history, of the common law to another understanding as the body of law created by judges, and in that sense the law not created by equity or statute.[2]

Without a power platform for upholding and legitimising the law making decisions of the judges there would have been little chance for the common law to be created or maintained. Development of a hierarchical and centralized system of the courts, originally empowered by the kings and later the parliament, was the fundamental basis from which the judge made common law was enabled and maintained. Today this hierarchical platform is still in place and understanding how it continues to legitimise legal decisions is important.

From this centralised court system developed a procedural method of deciding legal outcomes in a consistent but continually restated way through the courts and their decisions. This was based on a culture and method of adversarial argumentation between the parties in disagreement, originating through the writ system and developing into the current system that is known as precedent.

This detailed procedural system requirement had the need for legal professionals that were skilled in understanding, arguing and applying the law on behalf of clients in the various court settings. Their association and internal scholastic approach would ensure legal procedural consistency and development of record keeping, which are critical to the common law courts and its procedures.

Legal Platform

The commonly accepted historical understanding is that the basis for the foundation of the common law dates back to the Battle of Hastings in 1066, and the beginning of the Norman rule of England by William I. Before this time there was a system of uncentralised Anglo-Saxon law in the entity known as England, where as well as the Court of the King, witenagamot, each county would separately rule in disputes, in their own courts, according to their local customary law, through the Shire and Hundred Courts.[3] This community centric law was seen as well accepted by the communities that it served and importantly provided the basis for control of the people.[4]

William I required control of the whole of the kingdom of England to retain his power and income, and as such allowed the inherited system of local customary laws to remain. However, he ensured that his representatives, the sheriff’s, policed Shires.[5] The Normans were no strangers to administration of lands as they were already an established system of control over the realm of the Franks, and William I would impose a modification to the traditionally developed system of feudalism to take administrative control adding the locally functioning feudal Baronial and Manorial courts.[6] Feudalism was by its nature a hierarchical system of power and social control based on land tenure, and mutual benefit through income and military support passed upwards, and the Kings protection downwards.[7] The English feudal system had the King at the top of the tree with control over the entire Kingdom of England, nobles who sat next in line as tenant-and-chief were wealth land-owners by decree and plead of allegiance to the King, and below this were various tenants of the land.[8] This hierarchical system has endured and ensured power and central control of the common law.

William I set up the Curia Regis, or King’s Court, to stand side by side with the feudal courts, ecclesiastic and custom law courts, and would travel with the king within the realm, to hear petitions of his subjects, before he would rule. During the twelfth and thirteenth centuries, greater numbers of individuals would seek the kings justice due to dissatisfaction with the local laws, which they saw as unfair and unjust.[9] The king began to leave decisions that could be dealt with under existing laws to the autonomy of the curia regis, and to enable his obligations to be met the king began to appoint ‘justiciars’, or judges, whom were official representatives of the King, knowledgeable about the law.[10]

Over time a split of the curia regis occurred, one part became a permanent body of justices of the Curia Regis, formed to hear the ‘common pleas’, and became known as the Bench of Common Pleas. This Court would no longer travel with the King and would sit in a central location at Westminster, as ratified by the Magna Carta.[11] The other part was the ‘Justices in Eyre’, effectively as a sub-branch of the curia regis. These itinerant judges would travel to various regions of the country, known as ‘circuits’, to resolve disputes on behalf of the king and would apply law consistently. The idea of this was to replace the local courts with authoritative courts of the king that were accessible by the people, and it is notable that the decisions, not reasoning, of these courts were recorded.[12] As such the body of law created by these judges formed much of the basis of the common law.

Two other courts, formed from the curia regis, that were important for the basis of the common law being developed were the Court of Exchequer, which was primarily set up of advisors to hear disputes of a financial nature, and secondly the coram rege, or Kings Bench who were kings direct advisors, responsible for business affecting the king.[13]

Thus the three common law courts had developed, all empowered by the king, and all operated by professional judges who were knowledgeable in law and able to dispense with the same (common) law across the realm. This centralisation of the courts enabled a small group of legal individuals to flourish, developing a legal procedure that was repeatable and controllable, empowered initially by the king. It is true that there were numerous other courts that were developed for other areas of law, such as equity, admiralty and ecclesiastical, and that these other courts had to find a functional balance with the common law and vice versa, and also integrate statutes from the king and later parliament, but the three common law courts, and revisions of like over the next four centuries, ensured the platform for the development of the common law.

Roll forward to the late seventeenth century as the next major development in the platform for the common law is seen when parliament took over from the monarchs as being the legitimate power source of law and installing the crown by consent, following the Glorious Revolution which overthrew Charles II and installed William of Orange to the throne.[14] This is to state that the Parliament, through the power installed in it by the people, could now enact laws, normally in the form of statutes or acts, which were by royal decree so as to maintain the common law platform.[15] The Parliament was first called in 1265 by Simon de Montfort as an advisory body to the king, where the House of Lords was made up of the noble hereditary land holders, and popular representatives from the counties and boroughs in the House of Commons.[16] Even though the actual make up and selection criteria of the representatives may have changed, especially in the House of Lords, this is still the same basic two-chamber model of government that can be seen in Britain and Australia today.

From the eighteenth century the parliament modified the structure of the courts to remove some of the excessive divisions that had occurred since the thirteenth century. In England the Court of Common Pleas, Exchequer, King’s Bench, Chancery and Admiralty were removed under the Judicature Act 1873, and were replaced by two courts, The High Court and the Court of Appeal.[17] These new courts were divided into five divisions representing the old courts that had been replaced, notably returning the courts to a clearly hierarchical system where the common law jurisdictions could be centrally administered, with the House of Lords maintaining its importance as the highest court of appeal in the land.

Australia inherited the English law in 1787 through Governor Phillip’s commission, and set up a court system based on the English system in New South Wales and what became Tasmania.[18] The other states followed a similar path in their formation, as they inherited the structure and body of English law at the time of colonisation.[19] Over the decades that followed versions of the Judicature Acts in England were also enacted in Australia giving each state a similar structure to that in England invested in a Supreme Court. In Australia it would be remiss not to mention the additional level of hierarchy added through the Australia Constitution and the judicial power being vested in the federal High Court and federal courts,[20] with final appellate review vested in the High Court. The last relevant point here is that until the Privy Council (Appeals from the High Court) Act 1975 the relevance of the right to appeal to the English Privy Council meant that Australian law was inextricably linked to English law.

Thus the hierarchical structure and platform for the centralized legitimization, development and maintenance of the common law, with its parliament, courts, decree by crown and professional judiciary that is still relevant today had been set in place.

Legal procedure

Churchill is believed to have said to the Queen ‘always remember the further back you can look, the further forward you can see’,[21] and the relevance of historical decisions in the English common law system can not be denied when examples of the 1352 Statute of Treasons is still relevant in cases tried in the twentieth century.[22] Through the procedure that began in the thirteenth century the body of the legal decisions that are the common law was built, and it is those procedures that still govern the methods by which the system functions and grows.

The writ system from the twelfth century was not a new system developed by the Normans or the common law courts,[23] but it was a system that complimented the method of formalizing the delivery of justice in the hierarchical centrally controlled system. The person seeking a legal decision to be reached over a dispute, called the plaintiff, would apply to the kings representative in the Chancery and purchase a writ. From this the requirement to bring the person whom the legal decision was to be made against, called the defendant, would be organized by the kings representative in the Shire, the sheriff.[24]

The writs were very specific in regards to the action that was to be brought, including details such as time limit, modes of proof, enforcement etc., as such many new writs were being constantly issued.[25] The writs greatly expanded the ability for a plaintiff to bring a case against a defendant, and began to build sequentially as new courses of action were sought, as it was believed that ‘if some wrong were perpetrated, then a new writ might be invented to meet it’.[26] One of the most common writs was that of trespass, of which there were numerous categories, and were applied very mechanically and required a show of directness. For example if a woman had lost her hand after being treated carelessly by direct contact from a doctor then her cause of action of trespass might be upheld,[27] however, for example, the doctor may not be guilty of trespass if she had lost her arm where a friend had administered the treatment upon the doctors advice, as the action by the doctor would not have been direct.

Relevant to the hierarchy of the courts, was the right of appeal that was formed initially through writ procedures. This was not necessarily as it is understood today as the courts of the time were still highly centralized, however, a person had the right of appeal if they believed the court had been mistaken in its judgment through the writ of error. Additionally, appealing to a higher court, such as the Kings Bench, was available through the writ of certiorari.[28]

Perhaps the most important point borne from the early instances of the kings courts and the writ system in the common law was the birth of stare decisis, or that each case should be treated alike, and the birth of the doctrine precedent. Precedent is contained in judicial decisions on an ever-increasing volume of individual, but sequentially decided, legal cases. Precedent also relies on the hierarchical nature of the courts where a reason for a decision in a court higher in the hierarchy is binding, otherwise known as the ratio decidendi.[29] Other parts of the case that are not specifically relevant to the decision and the ruling can help guide future cases are said to be obiter dicta. It is said that the ratio decidendi of a past case may not be apparent until the decision in a future case, so deciding between the ratio decidendi and obiter dicta can be difficult.[30] The procedure followed by the judges in interpreting and creating the precedent, and the barristers in the typical adversarial arguing method, is for the barristers to propose alternative arguments on the current facts of the case in past precedent, and the judge to use analogical and deductive reasoning to discover the relevance of past precedents to any current case. This procedure of discovering the rule of law in a case has created the main body of the common law, and has led to the development of many legal principles.[31]

As the legal procedural system moved past the medieval period and into the eighteenth century this procedural development became a more significant. However, it is still in the procedure of the writs that one starts to see the ability for the common law to adapt to the requirements of society, and also for society to adapt to the common law. In 1258 the nobles, concerned about the proliferation of the writs, pressured the king to stop the flow of new writs, and in the Provisions of Oxford new writs were prevented from issuing.[32] An interesting legacy developed from this as the judges began to allow legal fictions, or untrue facts, to enable new types of cases to be brought before alternative courts, either of common law or otherwise. It is argued that these legal fictions allowed a large body of law to be created outside the common law courts that were subsequently appropriated by the common law courts.[33]

Moreover, a form of legal fiction has been important and forms part of the culture of legal argumentation relevant in order to curtail strict precedent that might be out of step with developing societal norms.[34] It is primarily where a story is proposed as socially and legally acceptable, although alternative, ‘fiction’, to the story told by precedent in order to create a new precedent that is in agreement with existing precedent, but always seemingly based on the facts of the current case.

The development of product liability over the centuries is perhaps a good example of how the legal procedure in the common law courts develops new posited law, with the use of legal reasoning, including fictions. A famously relevant case is often used to show how the common law developed the basis of product liability. In 1932 in Donoghue v Stevenson[35] the plaintiff brought a case against the manufacturer (defendant) of a ginger beer, which had been purchased by a friend for the plaintiff from a local shop. Upon consuming the drink the plaintiff noticed remnants of a snail in the bottle and subsequently became quite ill. The Court found that the manufacturer was liable in negligence even though there was no direct contract between the manufacturer and plaintiff, or even the shop and the plaintiff. This case was decided through the legal procedures such as using past precedent, barrister argumentation, and judges through their legal reasoning. In this case Lord Aitken famously developed the ‘neighbor principle,’[36] suggesting that who in life is my neighbor should also be precisely who in law is my neighbor, and as such any acts or omissions that injure my neighbor are my responsibility. Thereby creating a believable fiction to enable the court to reach a rule that modified and agreed with prior precedent. The ratio decidendi reached in the case being that a manufacturer is liable to a duty of care to the ultimate consumer, where that consumer has no prior chance of product inspection.[37]

This was not as simple as deciding the product liability rule only on the facts of the Donoghue case, as there had been developments since 1837 in prior precedent that gradually removed the directness of contract and liability between the plaintiff and defendant as being the only course of legal action, and opening up indirect actions in negligence, where each case built upon sequential use of the prior precedents. In 1837 in Langridge v Levy[38] the Court decided there was a duty of care on the plaintiff because of the “consequences of fraud” rather than a direct liability to the plaintiff.[39] In 1842 and Winterbottom v Wright[40] the plaintiff relied on the Langridge case, however the judge denied this finding no directness of contract between the parties, and noted concerns that allowing the alternative action might open the legal floodgates. In 1869 and George v Skirvington[41] the judge finds no liability in contract, but creates a linkage between ‘fraud’ and ‘negligence’ seeing the two as similar in the context. Lastly in 1883 and Heaven v Pender[42] the judge found for the plaintiff in negligence, noting that there is a duty from one party to another even where there is no direct contract, and that a duty of care must be given by a supplier to ensure goods that are used avoid creating danger to another.

Today the process of the judicial decision making with its legal reasoning, barristers with their adversarial legal arguments, and the hierarchy of courts driving commonality of legal precedent is key in the development and maintenance of the common law.

Legal professionalism and the protection of the common law

The essay discovered earlier that professional judges developed out of the requirements of the centralisation of the court systems. It should be noted that this professionalism of judges was the requirement of the kings common law courts and not those of the remaining lower courts such as the Local, Shire, Baronial, Manorial that were governed by local or untrained authorities, or the developing County Courts that would replace them with its justices of the peace to sit in judgment.[43] The trained judges were loyal to the king and were well-educated scholars generally from a religious background.

With the highly technical procedure, required initially by the writ system, and additionally because of the centralization of the Court of the Common Pleas to Westminster, began the development of, and the requirement for, the barrister. The barrister, grew to become a specialist legal professional from a generalist type attorney,[44] skilled in the law and its procedures including the argumentation in the courts, and were located in London. This group of professionals also started to appear in the twelfth century, as a direct financial consequence to clients wanting to have their cases heard in the Court of the Common Pleas, but not wanting to personally travel to London or wait for the inconsistent visits of the itinerate justices to travel with the Kings Bench to a local circuit.[45] In this way the barrister became the clients legal representative in court and would argue the merits of the case, in front of a judge.

Around this group of legal professionals grew a voluntary association that would develop the group of legal professionals, from students to barristers, where the best barristers would be selected to join the judges on the bench.[46] These associations were known as the Inns of Court of which there were four related to the common law courts; Lincoln’s Inn, Inner Temple, Middle Temple and Gray’s Inn. A prospective student was from an exclusive background, generally a son of a ‘gentry’ or ‘bourgeoisie’ and is said to have been able to choose between any of the Inns.[47] The Inns provided the training ground for the specialist legal professionals who grew through the mutually exclusive requirement of the centralized court and procedural system of the common law, and up until the nineteenth century it was still rare that a student would pass through a formal university education.[48] A student of the Inns would follow a set path of study and legal assistance to a barrister, before being ready to be accepted to the bar himself, and possibly eventually becoming a judge. Today the English Inns of Court still exist and these Inns retain jurisdiction over the behavior of its legal professionals.

Another important legal professional that developed during fifteenth century was that of the solicitor. This grew out of the requirements for more generalist advice to be locally available to legal clients, and these solicitors would, as they do today, offer advice prior to the requirement for a barrister and assist barristers when required.[49]

One of the important aspects of the common law was that for many years the record keeping of the ratio decidendi were not routinely recorded. Even so it was said by Glanville that even though the laws were not recorded they were still laws.[50] As the ratio decidendi was omitted by the courts, and stare decisis being required, it became necessary for the legal professionals to maintain private records, or log books, which retained the information of the judges decisions. A number of these private records are still seen as so instructive that they have been used as reference in cases. For example those of Glanville and Bracton advising on writ procedure in the twelfth and thirteenth century, and those of Sir Edward Coke, and Sir William Blackstone who’s commentaries on the laws of England are very detailed. From 1865, following from a supposedly self-interest of the bar, the system of the courts reporting the reasons for their decisions became the standard.[51] The reporting process was through officially appointed reporters who would complete the reports subject to the approval and edit of the residing judge.[52] This enabled the legal profession to access significant data from which to build arguments from precedent and to and rule in future cases.

This system of legal professionalism, produced from the historical development of the common law, is still operational in Australia today, where barristers are accepted to the bar and reside in ‘professional chambers’. The barrister offers his or her specialist services to clients, normally through referral from the client’s solicitor. The barristers continue to argue matters in front of judges on the behalf of their clients and are assisted by their readers and solicitors, whether the client appears at the court or otherwise.

Through history this group of legal professionals is said, perhaps through its conservatism, to have protected the common law system from being replaced by other systems of law such as a civil code, statutes or revolutions.[53] Others have suggested that it is more a case that these groups and the crown have protected the institutions so dearly as a requirement for financial prosperity.[54] Either way there can be no argument that the common law has sustained longer than any other western system of law, and that this group of professionals has been, and remain, imperative to its function.

History is of fundamental importance to the understanding of the common law, as it is a body of law that has developed over time, and is still highly relevant today. This essay has shown three mutually exclusive requirements of the common law that have developed to become its pillars through its history, and have in turn ensured the continuing relevance of the common law over time. These three pillars of platform, procedure and professionals are akin to three legs on a chair, if any were to be removed then the whole system would be unstable. This is not to suggest that there are not other important historically borne aspects of the common law, such as the jury and constitutional freedoms, but it is to suggest that those aspects fall within the necessities and functionality of the three pillars.

It has been shown that critical to the development of the common law was the creation of the centralized and hierarchical courts which created a legitimate platform to make, adjudicate and uphold laws. From this platform how a procedure developed to adjudicate on those laws and also how to ensure that those laws remained in balance with society through the ages, and how the strict procedural nature of those laws and the centralization of the courts developed a close knit community of legal professionals who assisted in developing and protecting the common law institution.

[1] R C van Caenegem, Judges, Legislators and Professors: Chapters in European Legal History (Cambridge University Press, 1987) 44 (‘Judges, Legislators and Professors’).

[3] C Cooke, R Creyke, R Geddes, D Hamer with T Taylor, Laying Down the Law (8th edition, LexisNexis, 2011) 546 (‘Laying Down the Law’).

[4] P Parkinson, Tradition and Change in Australian Law (4th edition, Lawbook Company, 2008) 84 (‘Tradition and Change’), 66.

[6] Laying Down the Law, above n 3, 16.

[7] R C van Caenegem, The Birth of the English Common Law (2nd ed, Cambridge University Press, 1992) 5-7 (‘Birth of the English Common Law’).

[8] Laying Down the Law, above n 3, 16.

[9] It is perhaps important to note that during the period up seventeenth/eighteenth century the old local Shire and Hundred courts became less important, and the feudal courts declined into insignificance. These were replaced by courts of justices of the peace, which were supervised by the coram rege.

[10] Laying Down the Law, above n 3, 18.

[11] Birth of the English Common Law, above n 7, 22.

[13] Ibid 19, 21.

[14] Laying down the law, above n 3, 26-27.

[15] Ibid 28-29.

[16] Ibid 22-23.

[17] Ibid 30.

[18] Tradition and Change, above n 4, 3.

[19] Ibid 132-133.

[20] Australian Constitution s 71.

[21] See B Sully, ‘The Common Law: whither or wither?’ (Occasional address to Australian lawyers alliance, ACT branch conference, 24th June 2011).

[22] Birth of the English Common Law, above n 7, 8.

[23] Ibid 30-31.

[24] Ibid 29.

[25] Ibid 5-7.

[26] Ibid 54, citing Bracton, fol. 413b.

[27] see A, Ounapuu, ‘Abolition or Reform: The Future for Directness as a Requirement of Trespass in Australia’ (2008) 34(1) Monash University Law Review 103.

[28] Judges, Legislators and Professors, above n 1, 5.

[29] M Kirby, ‘Precedent Law: Practice and Trends in Australia’ (2007) 28 Australian Bar Review 243, 245 (‘Precedent Law: Practice and Trends’), 245.

[30] J Carvan, Understanding the Australian legal system (6th edition, Thomson Reuters, 2010).

[31] The doctrine of precedent as we know it today was a later development in law, since 1865, but the general founding principles date back to the begging of the common law. The development period of precedent were: (a) circa 1290-1535, the Year Book Period, (b) 1535-1765, the period of Plowden and Coke, (c) 1765-1865, the period of the Authorised reports, (d) 1865 onwards, the Modern period, The History of Judicial Precedent (1930), Lewis, T. Ellis.

[32] Laying Down the Law, above n 3, 19.

[33] E P Stringham and T J Zywicki, ‘Rivalry and superior dispatch: an analysis of competing courts in medieval and early modern England’ (2011) 147 Public Choice 497-524.

[34] Laying down the law, above n 3, 118-119.

[35] [1932] AC 562.

[36] Ibid 580.

[37] Ibid 599.

[38] (1837) 2 M & W 519; 150 ER 863.

[39] In this case the manufacturer had warranted that a gun sold to the father was in good working order, which was the bases for the court to rule that a fraud had occurred.

[40] (1842) 10 M & W 109; 152 ER 402.

[41] (1869) LR 5 Ex 1.

[42] (1883) 11 QBD 503.

[43] Judges, Legislators and Professors, above n 1, 133-134.

[44] Laying Down the Law, above n 3, 31.

[45] Ibid 30-31.

[46] Judges, Legislators and Professors, above n 1, 48, 60.

[47] Ibid 48.

[48] Ibid 60-61.

[49] Laying down the law, above n 3, 31.

[50] Birth of the English Common Law, above n 7, 2.

[51] J P Dawson, The Oracles of the Law (University of Michigan Law School, Ann Arbor, 1968) 80, 81-83.

[53] Judges, Legislators and Professors, above n 1, 6-7.

[54] E P Stringham and T J Zywicki, ‘Rivalry and superior dispatch: an analysis of competing courts in medieval and early modern England’ (2011) 147 Public Choice 497-524.

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What Is Common Law?

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Common Law: What It Is, How It's Used, and How It Differs From Civil Law

James Chen, CMT is an expert trader, investment adviser, and global market strategist.

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. Common law is also practiced in Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.

Key Takeaways

• Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts.
• Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
• Common laws sometimes prove the inspiration for new legislation to be enacted.

Investopedia / NoNo Flores

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 that can apply to a case at hand.

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.

Investopedia / Sabrina Jiang

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 between districts.

A common law marriage, also known as a non-ceremonial marriage, is a legal framework that may allow couples to be considered married without having formally registered their union as either a civil or religious marriage. While common law is not common among the U.S., there are a number of states that have statutes or allow for common law marriage if they meet certain requirements:

• New Hampshire
• South Carolina

A number of states, including Alabama, recently abolished the statutes allowing for common law marriage.

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 disempowerment 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.

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 a simple definition of common law?

Common law is a body of unwritten laws based on legal precedents established by the courts.

Is common law still used today?

Today the US operates under a dual system of both common and civil law. The courts, for example, operate under common law.

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. 

What is UK common law?

US common law originates from medieval England, however, today both the US and UK operate under a dual system of both common and civil law.

Although common law is derived from its original appearance in medieval England, it is still very much in effect in the US and elsewhere today. As the evolution of technology and its presence in our lives continues to grow, common law's ability to leave the legal code open for interpretation will become increasingly important.

Britannica. " Common Law ."

University of California, Berkeley. " The Common Law and Civil Law Traditions ," Page 1.

World Population Review. " Common Law Marriage States 2022 ."

Legislation.gov.uk. " Voyeurism (Offences) Act 2019 ."

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Why the Common Law in America?

The next Liberty Forum is now available. Featured this month are tremendous essays from James Stoner, Hadley Arkes, and John McGinnis on the relationship between the unwritten common law and the written Constitution. To put it in Stoner’s terms : can we understand our Constitution, its central liberty protecting provisions, and can we even properly interpret it without a prior understanding of the common law tradition? Of course, America is founded on a primary act of separation from Great Britain that is built on first principles of independence and liberty, rooted we might say in natural rights and not the traditions of the common law. Stoner’s essay attempts to reconcile these contrasting historical and theoretical notions and demonstrate how our constitutional tradition is made stronger as a result of our different strands of constitutional thinking.

In “ Peeling Back the Common Law ” Arkes does not so much as disagree with Stoner as demonstrate the common law’s abiding connection with reason reflecting on experience.

But when we do “refer” that matter to the Common Law, how is it to be resolved:  Do we ask, “How long has it been around,” or do we ask, rather, “What makes it compellingly true?  What makes it something that must be in place in anything that calls itself the ‘rule of law.’?” Consider simply that axiom that stands as the anchor of the “laws of reason,” namely the law of contradiction:  two contradictory propositions both cannot be true.  That is one of those propositions that must be grasped on its own terms as true per se nota, and the telling sign of its truth is that we lapse into contradiction and gibberish if we sought to deny it.  Now if we said, “two contradictory propositions both cannot be true,” do we add anything to its claim to our credence if we added, “And Aquinas also said it.”  Or “It has also been put in the Constitution in Clause X.”    I would submit that the judgment would have to hinge, not on the persons who endorsed it, or its inclusion in a text, but on the force of the principle itself.

John McGinnis’s contribution “ Common Law Constitutionalism: Tradition v. Interpretive Process ” underscores the common law inheritance of our constitutional order while also pointing to the problems it can and has created in constitutional interpretation:

But I believe that common law reasoning to interpret the Constitution would be unlikely to be beneficial to liberty today in part because the Supreme Court faces no competition from other courts and because it sits in a legal culture that is not very friendly to the kind of liberty the Founders envisioned. In short, because of its centralized nature and the likely class of its personnel, it is not likely to discover good social norms. I agree with Professor Stoner that as a positive matter the Supreme Court in the twentieth century often reasoned by analogy and built constitutional law on its precedents, but in doing so it has tended to depart from the Constitution’s original meaning and from its liberty protecting structure.  Benjamin Cardozo was undoubtedly a great common law judge on the New York Courts of Appeals, but when he ascended to the Supreme Court and applied common law reasoning to the Constitution, the results were not pretty.  His common law mantra that law “should not be indifferent to questions of degree” permitted him to strike down the National Recovery Act when it applied to a small chicken cooperative. But it also permitted him to disregard the line between commerce and manufacture in the Commerce Clause applied to larger enterprises.  The consequence was the obliteration of an important limitation on federal power reflected in the language of the Clause and one that protected jurisdictional competition among the states.

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Essay Human Dignity and the Politics of Dune Kody W. Cooper

Common Law and Civil Law: Comparison

Introduction, origin of civil law, origin of common law, can the two legal systems eventually merge.

Bibliography

The paper compares elements of civil and common law. It gives a brief history of each of the legal systems in an attempt to explain their background. The origin of civil law is traced back from the Roman Empire while common law derives its origins from England. Areas of differences between the legal systems are established at various levels such as the role of the legislator, the procedure applied, and the binding law of precedent prevalent in both legal systems.

The paper also compares the diverse approach of the two legal systems towards various legal concepts and doctrines such as their approach towards contract law and the doctrine of good faith. We also look at different areas under which the two legal systems are likely to merge and the factors hindering the same and conclude that through merging the systems can attain higher levels of importance.

Ever since the Paris conference that was held in 1990, comparative lawyers have geared their efforts towards the classification of different legal systems of the world in ‘law families’. 1 The civil and common law families are the most popular law families among the Western society. Common law origins can be traced back to England and Wales from where it spread to its former colonies. Civil law on the other hand derives its roots from the rest of the European continent and its former colonies. 2 Traditionally, the common law was perceived as spreading selectively in the European continent specifically in England.

However, it is presently emerging more clearly that England was not entirely isolated in its adoption of common law and over the years it has been substantially influenced by the legal systems of the other parts of Europe and incorporates in its legal system some traces of the Roman law. We can therefore conclude that common law and civil law are both emanations of a western legal tradition. 3 The civil law system is incorporated in most of Eastern and Western Europe, Scandinavia, Latin America and Russian legal systems. Mixed cases of civil law have been found in most parts of Africa and the Chinese legal system. 4

Civil law can be defined differently depending on the context. The commonly used definition refers to laws affecting private rights such as the law of contract, family law, and the law of torts. In this context, however, Civil law refers to the modern legal system that has its origin in ancient Rome 5 . The origin of civil law dates back hundreds of years B.C. where laws were curved into bronze and marble tablets that formed the basis of thousands of law books that were written later and contained rules and penalties created by generations of empires. 6 By 529 A.D. Roman law was rewritten in a ceremony presided over by (Emperor) Justinian.

The code organized the legal rules into a logical system that could be learned, understood and applied practically. 7 Rome was later invaded by the Germanic hordes which led to the disappearance of the Justinian code. However, around 1100 AD, copies of the lost Justinian code were recovered and legal scholars took great interest in it due to its comprehensiveness and systematic organization. It was taught in Italian universities for many years. 8

Centuries later, Emperor Napoleon also adopted the Roman system and used its principles to consolidate the French law into the Napoleon code. 9 This code was translated to almost every language and gained popularity throughout Europe and around the world. In the 1900s, Germans developed a uniform code based on the principles of the Roman law which led to the enactment of the German civil code which continues to be used through the 20 th century with constant amendments. The German code has been influential in the development of civil law in the present society. It has influenced legal systems in China, Japan, and Portugal among other regions in the world. 10 Civil law has dominated most legal systems of the world today.

The common law systems originated from the Normandy region of France. The British legal system was not influenced by Roman law as it was on the verge of branching off to its own legal track. It was largely governed by the Anglo-Saxon law since the fall of the Roman Empire until the Norman Conquest in 1066. 11 In the same year, the last king of Saxon was murdered and it was at this point that the English law took a different direction altogether. William the conqueror introduced feudalism, a political and economic system where he distributed the land to his closest followers who further distributed it to sub tenants.

Possession of land was acquired under certain rights and in return of certain specified duties owed to the tenants. 12 However, European feudalism is no longer in existence but the legal system that William and the Kings developed are still significantly influential to the England legal system. The development of trial by jury led to the demise of the Anglo-Saxon courts.

Judges started documenting their decisions on various cases and shared them with their fellow judges such that judges could justify their rulings by citing previously decided cases of similar nature. 13 This led to the beginning the common law system which is governed by the doctrine of stare decisis which implies that the courts should let a decision to stand unless under situations where it is overruled by higher authority. 14 The common law spread from the British Empire and is practiced today in Australia, Canada, Ghana, Great Britain, United states, among other countries. Many civil law countries are also incorporating the common law systems in their legal systems. 15

The common and civil law are the dominating legal systems among the Western countries. Their ultimate difference lies on the definition of the two legal systems. While common law is the body of law that develops over time through judges ruling over cases based on previous rulings, otherwise referred to as judicial precedent rather than statutes or the constitution, the civil law refers to a legal system whereby the law governing a particular society is derived from the civil authority or the state. 16 Civil law is written law that does not relate to any specific present dispute but was written to anticipate future dispute and provide guidance on how to address these controversies in case they occurred in future 17

The role of the legislator differs in both legal systems. In civil law, it is based on the theory of separation of powers. In common law however, the courts are expected to create the law. 18 The two legal systems approach to the legal process also differs significantly. The civil law’s principles are found in codes and statutes, which are prevalent in case rulings while in common law system the laws are a creation of judicial decisions. 19

The binding force of precedent is different in both legal systems. Courts in civil law systems decide on cases through application of statutes and interpretation of legal norms while the common law courts decide disputes between parties as well as providing guidance regarding the occurrence of such disputes in the future. Thus, the interpretation of a particular case under common law is binding on lower courts while the case laws under civil law systems lack this binding force. 20

Since the doctrine of stare decisis is not applicable in civil law cases, it is common for these courts to come up with different rulings on similar cases, which hardly occur under common law. In civil law therefore, the courts do not make the law but merely interpret and apply the existing law. However, in practical cases, the higher courts in civil cases have substantial influence on lower courts as the judges in these lower courts will try a much as possible to avoid the risk of making a decision that would be reversed by the higher courts as it may affect their careers. Hence, in practice the courts takes account of prior decision even though theoretically the civil law systems have no binding power. 21

The two legal systems are characterized by diverse legal concepts that are highly differentiated. In common law, a contract lacks binding effect unless it is supported by consideration while in civil law; a contract exists only with a lawful cause. 22 In common law therefore, a contract must be supported by something of measurable value while in civil law a contract is justified only if the party undertakes the responsibility to fulfil the contractual obligations.

Civil law recognizes transferability of contractual rights to the third parties ( Stipulatio alteri ) while common law does not. 23 Common law applies the doctrine of privity of contract, which prevents contracting parties from imposing obligations or giving rights to parties other than the contracting parties. However, general principles on liability for breach of contract are based on similar bases in both common and civil legal systems. 24

The only difference occurs in the recovery of damages whereby the requirement of fault is necessary in civil cases and not required in common law. Strict liability for performance under the common law has been adjusted to accommodate events of impossibilities as well as change in circumstances. 25

The civil law is subjected to scientific study and formulation, which is lacking in common law. The civil law is comprehensively and systematically codified. The common law on the other hand creates room for loose ends existence of which appear not to alarm the common lawyer 26 The civil law may also contain few loose ends but civilians always attempt to remedy the defect. 27

The procedures applied in both legal systems are also varied. Common law procedure is commonly referred to as ‘adversarial’ where the judge acts as a neutral arbitrator between the parties in dispute. The disputing parties lead the proceedings and the judge passively participates without undertaking any independent investigation in the process. His ultimate role is to oversee the proceedings, establish the ultimate truth without directly interrogating the parties in dispute. He also ensures that the necessary procedure is followed and respected. At the end of the proceedings, the judge makes a ruling depending on the most convincing and competing presentation. 28

In civil law, the procedure is referred to as ‘inquisitorial’ since the judge examines witnesses and the disputing parties are not allowed to engage in cross-examination. The judge takes up an active role and his court undertakes the responsibility of clarifying issues as well as assisting parties in presenting their arguments. The judge in the civil law system is expected to make decision by establishing the definite truth and consequently making a just decision. The civil law utilizes the doctrine of Jura novit Curia which requires the court to know the law and the parties in dispute are not required to plead the law. 29 This differs from Common law where the law has to be pleaded.

In common law the procedure sets off with a filed complaint which starts off the procedure of investigations with the aim of establishing the truth while in civil cases the complaint determines the orientation of the case. 30 Civil law trials involve a number of hearings and involve various written communications between the parties involved in the trial. On the other hand, civil law places less emphasis on oral communication and uphold written communication.

The method of gathering evidence in both cases also differs. The pre trial search for evidence in common law requires the parties to produce all documents and information which is relevant to the case in the absence of court intervention. Through discovery of documents the parties can gain access to information from the other parties hence assist them in preparing for the trial. Civil law does make provision for pre trial discovery. The parties in dispute are not obligated to present documents voluntarily to the other party since the evidence is meant to prove legal or factual arguments. 31

There are also significant differences in treatment of witness statements in both systems. A basic feature of common law procedure is cross examination of witnesses to allow thorough examination of the case since in this legal system, oral evidence is given considerable weight relative to written evidence. 32 In the civil law legal system, written evidence has more emphasis than oral evidence. In case written evidence is contradicted by oral evidence in civil cases, then the written evidence will prevail. Hence cross examination of witnesses under civil cases is uncommon unless under the sole discretion of the judge. 33

The doctrine of good faith is much emphasized in civil law than in common law. This can be ascribed to the influence of canon law (on civil law) as well as commercial practice (on common law). Hence if in common law a decision maker had to make a choice between certainty and justice, certainty would prevail due to the commercial orientation of the process. 34 Civil law on the contrary is concerned with the moral evaluation of the behaviour of the parties and the doctrine of good faith takes the form of a general code provision. 35

With the exception of United States, most common law jurisdiction does not employ the doctrine of good faith. If we conceptualize this doctrine as a mechanism which is “used to moderate the effects of unethical behaviour or ensure justice and fairness by requiring contracting parties to observe certain behavioural norms;” 36 we can conclude that the idea presents itself in doctrines such as duress, undue influence, and misrepresentation or in specific statutes such as Unfair contract terms act without which parties are rendered free to pursue their strict legal acts regardless of their motive. 37 It is generally considered thorny to imply a term under the common law than it is to find a good faith obligation under a general principle. 38

However, the common law may often achieve the same results as civil law after judicial development of general principles but the presence of the general doctrine provides judges with a more flexible standard since the doctrine stands ready to meet unforeseen contingencies. 39

A common law system acknowledges medical privileges achieved via privilege statutes drafted for situations requiring the physician testimony in judicial proceedings. The statute comprehensively describes the scope and the limitations of the medical privilege. 40

While in some civil law systems countries like Germany and France, the legal implication of the medical privileges raises issues as to whether or not the physician testimony in court maintains medical confidentiality breach of which amounts to a criminal offence. However, both systems generally achieve the same results when it comes to protection of medical confidentiality. 41 Common law also contains rules that restrict evidence of admission. The civil procedure also provide guidelines regarding what may be introduced as evidence in a court proceeding. The civil law restricts the evidence while common law allows any evidence but evaluates it depending on the weight accorded to it. 42

In the nineteenth century, it was possible to believe in the notion that common law was crude and barbarous relative to the civil law. Increased cultural interaction between these two systems over the years has however revealed that the Anglo-American is not less sensitive or unjust compared to the civil law system. 43 The civil lawyers have recognized that societies are able to reach advanced levels of legal development without acknowledging any technical differences between private and public law. 44 (Henry, 2010)

The differences that once appeared significant between common and civil law are continually becoming blurred. The two systems have started harmonizing in terms of the sources of law, procedures and drafting techniques as well as judicial views. 45 Evidence can be derived from the fact that since the 19 th century, the common and civil law countries have increased their reliance on legislation to compel law reforms which has resulted in the rise of administrative law. 46

Common law judges are also increasingly acknowledging that they should start making the law other than blindly adhering to precedent. France evidently demonstrates a change in attitude from previously applying the law by referencing statutes and codes to establishment of lines of judicial precedent to guide courts and law practitioners. 47 Globalization is also a compelling factor to harmonization of the legal systems. Increased international contact especially through international trade requires countries with similar economic social and political values to integrate. This may eventually lead to emergence of international common law.

For example the European Union which has its own parliament and courts. 48 However, these moves have been criticized on the basis of the fact that it ignores basic legal structures, actors and processes. The two legal systems have been portrayed as reflecting two modes of experiencing the world and cannot be reconciled easily 49 and while they may appear to have similar rules and concepts and outcomes, the common law presents barriers that prevent other legal systems to interact with it at deeper levels.

Examination of common law and civil law systems reveals that there exist differences and similarities between the two systems. Their different legal cultures concepts and institutions converge at the point of almost similar outcomes in the legal proceedings. Due to contemporary pressure facing the legal sector and the world at large, these two systems are continually integrating at various levels and consequently reaching greater levels importance.

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Gold-medal student essay shines a light on the role of homophobia and transphobia in wrongful convictions

By Common Law

Communication, Faculty of Law

Ryley Alp recently won the gold medal for best student paper from the  Wrongful Conviction Law Review (WCLR).

Her paper, “Queer in Fear: The Role of Homophobia and Transphobia in Wrongful Convictions,” was selected by the Canadian-based law review’s editorial board of wrongful conviction scholars. 

The WCLR is a non-profit, open access, peer-reviewed international journal focusing on wrongful convictions and miscarriages of justice. While it is fundamentally a law review, it also accepts submissions from other disciplines (e.g. criminology, sociology, psychology, criminal justice etc.). 

Alp originally wrote the paper for the wrongful conviction course taught by Professors Mark Green and Stephen Bindman. 

From her abstract: “This paper will explore how the criminal justice system’s ingrained prejudice against LGBTQ2S+ people can lead to wrongful convictions. Primarily, this paper will focus on the negative stereotypes of and myths surrounding queer people, rooted in homophobia and transphobia, that lead to wrongful convictions. Examining the cases of Miguel Castillo, Bernard Baran, The San Antonio Four, and Monica Jones, this paper will prove that these pervasive and dangerous stereotypes impact queer people at every step of the criminal justice system. This paper will conclude by briefly discussing instances of queer wrongful convictions in the Canadian context.”

Alp is currently articling with Fasken. She will clerk next year for the Nova Scotia Court of Appeal.

Says Alp: “Throughout law school I had a strong interest in exploring how queer identities intersect with the legal system. In taking the wrongful convictions course I realized that there was a gap in the research around how homophobia and transphobia might impact wrongful convictions. My research found that the biases and stereotypes surrounding the queer community have historically impacted wrongful convictions, and that 2SLGBTQ+ people are overrepresented throughout the system.

“I feel that given the current social climate, where we are seeing an increase in homophobic and transphobic rhetoric, it is especially important to look critically at these biases. In my paper I noted the increase in anti 2SLGBTQ bills being signed into law. 

“It is critical to understand that when the law discriminates based on queer identity, more queer people will end up in the criminal justice system. The rise in anti-LGBTQ2S+ sentiment can drive the stereotypes that impact wrongful convictions, which is demonstrated through my case studies.

“There is a clear need for more research, and I hope my paper will lead to further examination of this topic so that we can better understand the connection between queer identity and wrongful convictions. I am excited that I had the opportunity to address the gap and shed light on the experience of queer people in the criminal justice system. I am very grateful to the people who helped me get this paper published.”

Professor Green recalls that Ryley was a regular and thoughtful contributor during class discussion (conducted via Zoom). The subject of her major paper was extremely well written, tying for the highest grade in the class. 

“Her insights, based on some case examples, are well reasoned and argued, and offer conclusive evidence that prejudice, with respect to sexual orientation and gender expression, can lead to wrongful convictions,” said Green.

“Ryley tackled an important and often ignored subject that was rarely written about by other students or even discussed during our course. Through the WCLR, Ryley now has a broader public forum to share her research with.” 

Alp previously completed her B.A. in Media, Information & Technoculture at Western University, along with a diploma in Television Broadcasting from Fanshawe College. She received her J.D. from the uOttawa Common Law Section in 2023, where she completed the Option in Law and Technology. When she’s not working, Ryley enjoys baking, practicing yoga, scrutinizing her fantasy football team, and spending time with her cat, Poe. 

Last year, Samantha Savage won the award for her paper "  The Reliability of Expert Evidence in Canada: Safeguarding Against Wrongful Convictions ,” Wrongful Conviction Law Review, 3(1), 82–93. (Original work published July 20, 2022). 

Prior to that, Esti Azizi won the gold medal for her paper  "Maintaining Innocence: The Prison Experiences of the Wrongfully Convicted,” The Wrongful Conviction Law Review, 2(1), 55–77. 

Both were students in the wrongful conviction class.

Another award-winning student paper on wrongful convictions

Student Esti Azizi awarded gold medal for her fresh take on wrongful conviction…