Keith Mack
The US legal system is a mix of common law and civil law. The US courts operate under common law, which is derived from English law and was in force in British America at the time of the American Revolutionary War. Common law places an emphasis on precedent and allows for some freedom in interpretation. The US also has civil procedure laws, which are codified statutes enacted by the state legislature. The state of Louisiana is an exception, as it follows a civil law system, with its civil code governing private law in the state.
| Characteristics | Values |
|---|---|
| Type of legal system | Common law and civil law |
| Basis of common law | Principle of stare decisis or "let the decision stand" |
| Sources of law | Constitutional law, statutory law, treaties, administrative regulations, and common law |
| Common law marriage | Recognised in certain states |
| Tort law | Primarily a matter of state law |
| Civil procedure laws | Codified statutes enacted by the state legislature |
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What You'll Learn
The US legal system is a mix of civil and common law
However, the state of Louisiana is an exception, with a legal system rooted in civil law. Louisiana's civil code, originally written in French, was influenced by French and Spanish legal traditions, which are themselves variants of Roman law. Louisiana's first federally assigned governor, William Claiborne, attempted to institute the common law system in the state, but this was rejected by local lawyers.
Common law has been criticised for its historical bias and marginalisation of certain groups, and civil law systems aim to address this with a heavier reliance on codes that explicitly provide rules for specific disputes. However, common law allows for more flexibility in adapting to new situations not contemplated by the legislature.
American civil procedure has several notable features, including extensive pretrial discovery, heavy reliance on live testimony, and aggressive pretrial "law and motion" practices. While civil law is more prevalent in Louisiana, certain key portions of the state's civil procedure laws have been modified to align with federal civil procedure.
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Common law is based on precedent, civil law on codes
The US legal system is primarily based on common law, which originated in medieval England and came into force in British America during the American Revolutionary War. 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 be applied to a given case. Instead, common law emphasizes precedent, or stare decisis, which is a history of judicial decisions that form the basis of evaluation for future cases. While common law allows for some freedom of interpretation, it promotes stability and consistency in the US legal system.
Civil law, on the other hand, is based on codes. It is a comprehensive, codified set of legal statutes created by legislators. Civil systems clearly define the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Judicial authorities use the conditions outlined in the applicable civil code to evaluate the facts of each case and make legislative decisions. Civil law is regularly updated, and its standardized codes aim to create order and reduce bias in the legal system.
While the US operates under a dual system of both common and civil law, common law is the dominant tradition. All states except Louisiana derive their law primarily from the common law system of English law. Louisiana, meanwhile, follows the civil code of France, a legacy of its French colonial past.
Common law has several advantages. It allows the law to be adapted to situations that were not contemplated by the legislature. This adaptability will become increasingly important as technology continues to shape our lives in new ways. However, common law has also been criticized for perpetuating unfair marginalization or disempowerment of certain groups. Past decisions, whether outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
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Common law is derived from English law
The United States operates under a dual system of both common and civil law. The US common-law system, which is in force at both the federal and state levels, evolved from a British tradition that spread to North America during the 17th and 18th centuries.
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law sometimes proves the inspiration for new legislation to be enacted. For example, the UK has long had a common-law offence of "outraging public decency", which has recently been used to prosecute a new intrusive activity called "upskirting".
In the US, 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. Common law also applies in the concept of common-law marriage, which grants similar rights to those with a marriage license to couples that are not officially married if certain conditions are met. While this is not common in the US, several states have statutes that allow for common-law marriage.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. 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 bias in the system.
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Civil law is derived from Roman law
The United States operates under a dual system of both common and civil law. The courts, for example, operate under common law. Common law places an emphasis on precedent while allowing some freedom for interpretation. Common law in the US originates from medieval England.
Civil law, on the other hand, is derived from Roman law. Civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, most notably with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law systems are characterized by their reliance on legal codes that function as the primary source of law. Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law, or Continental law.
The expression "civil law" is a translation of Latin jus civile, or "citizens' law", which was the late imperial term for its legal system, as opposed to the laws governing conquered peoples (jus gentium). Civil law practitioners refer to their system in a broad sense as jus commune. It draws heavily from Roman law, arguably the most intricate legal system before the modern era. In civil law legal systems where codes exist, the primary source of law is the law code, a systematic collection of interrelated articles, arranged by subject matter in some pre-specified order. Codes explain the principles of law, rights, and entitlements, and how basic legal mechanisms work.
An important common characteristic of civil law, aside from its origins in Roman law, is the comprehensive codification of received Roman law, i.e., its inclusion in civil codes. The earliest codification known is the Code of Hammurabi, written in ancient Babylon during the 18th century BC. However, this, and many of the codes that followed, were mainly lists of civil and criminal wrongs and their punishments. The codification typical of modern civilian systems did not first appear until the Justinian Code. Germanic codes appeared over the 6th and 7th centuries to clearly delineate the law in force for Germanic privileged classes versus their Roman subjects and to regulate those laws according to folk rights.
While civil law is derived from Roman law, it has evolved and been influenced by other legal traditions over time. For example, the civil law systems of Nordic countries have deviated significantly from their classical Roman and German models. Similarly, while Roman law served as a basis for legal practice in Western continental Europe, it was also influenced by Byzantine law after the dissolution of the Western Roman Empire.
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Common law marriages are legally recognised in some US states
The US legal system operates under a dual system of both common and civil law. Common law marriages, also known as non-ceremonial marriages, are marriages without formal registration, a marriage ceremony, or a marriage certificate. While common law marriage is not common in the US, it is legally recognised in some states.
Common law marriages are currently recognised in Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. However, recognition varies among these states. For example, Oklahoma has conflicting laws, and New Hampshire only recognises common law marriages for inheritance purposes. Additionally, some states, like Alabama, have recently abolished statutes allowing for common law marriage.
To have their union recognised as a common law marriage, couples must meet specific requirements, which vary by state. These requirements may include being at least 18 years old, filing a legal "Declaration of Informal Marriage", and cohabiting for a specified period.
It is important to note that all states recognise common law marriages if the marriage was established in a state that permits it. This is based on the full faith and credit clause of the United States Constitution, which mandates that states respect the laws of other states. Consequently, a couple with a common law marriage in a recognising state must have their union acknowledged by non-recognising states.
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Frequently asked questions
The US operates under a dual system of both common and civil law. The courts, for example, operate under common law.
Common law, which originated in medieval England, is based on the principle of stare decisis, or "let the decision stand". It relies heavily on court precedent in formal adjudications.
Yes, a common-law marriage is an example of common law in action. Common-law marriage grants similar rights to married couples who are not officially married if several conditions are met.
