Cecily Zamora
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law systems rely on caselaw and legal precedent to guide their decisions, while civil law systems rely primarily on codes and statutes. Common law originated in medieval England and is still in effect in the US and elsewhere today. Common law countries are increasingly adopting codes, similar to civil law systems, in areas such as bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law. In the US, the Uniform Commercial Code (UCC) is an example of a codified framework governing commercial law. In the English legal system, subordinate laws are not officially codified, although consolidation bills have restated the law in many areas.
| Characteristics | Values |
|---|---|
| Common law systems | Rely on caselaw and legal precedent to guide their decisions |
| Civil law systems | Rely primarily on codes and statutes |
| Common law | Also known as case law |
| Common law | Is a body of unwritten laws based on legal precedents established by the courts |
| Common law | Has furnished the basis for new legislation to be written |
| Common law | Has greater flexibility in granting different types of security over assets |
| Common law | Has the concept of trusts |
| Common law | Places an emphasis on precedent while allowing some freedom for interpretation |
| Common law | Has fewer provisions implied into a contract |
| Common law | Has statutes that allow for common-law marriage |
| Common law | Is derived from its original appearance in medieval England |
| Common law | Is still very much in effect in the US and elsewhere today |
| Common law | Is increasingly adopting codes, similar to civil law systems |
| Common law | Is subject to codification, which is the process of converting and consolidating judge-made law or uncodified statutes into statute law |
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What You'll Learn
Common law in the US
Common law is derived from judicial decisions, unlike civil law, which is based on codes and statutes. In the US, common law was originally based on English common law, but it has since developed its own common law rules. While the US has a federal common law, most common law is found at the state level.
Many US states have codified statutes that courts must consider, and common law systems are increasingly adopting codes in areas such as bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law. For example, the Uniform Commercial Code (UCC) is a codified framework that has been enacted with some local variations across all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.
At the state level, legislatures often codify common law rules from the courts of their state to give them the permanence of a statute, modify or expand on them, or replace them entirely with legislation. For example, in 2018, the California Supreme Court issued a ruling that articulated a three-part test for determining whether California workers were independent contractors or employees. The California Legislature responded by creating a new section of the Labor Code, 2750.3, which codified and expanded on the holding and went into effect on January 1, 2020.
Louisiana's criminal law is largely based on English common law, while its private law is based on principles of law from continental Europe, with some common law influences. Louisiana's administrative law is generally similar to that of the US federal government and other US states.
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Common law in the UK
The UK legal system is based on a dual foundation of common law and statutory law. Common law in the UK, also known as case law, is derived from custom and precedent. It originated with the legal reforms of King Henry II in the 12th century and was called "common" because it applied across the whole country. Over time, this body of case law has become a significant source of legal principles and rules in the UK.
Common law is based on the doctrine of stare decisis, which means "to stand by things decided". It relies on previous judicial decisions, or case law, to guide current and future cases. This establishes consistency, stability, and predictability within the legal framework. The doctrine of binding precedent, a key aspect of common law, means that courts follow and apply the principles declared in previous cases decided by more senior courts.
Common law is flexible and adaptable, allowing it to evolve and respond to societal changes and emerging legal issues. Judges play a crucial role in shaping common law through their interpretations, ensuring that the law remains relevant and responsive to the needs of a changing society. They interpret the law based on specific case circumstances and can depart from precedent when necessary.
While common law is a significant part of the UK legal system, it has limitations. Statutes, or laws enacted by Parliament, generally supersede common law. They may codify existing common law, create new causes of action, or legislatively overrule common law. In the UK, codification is the process of converting and consolidating judge-made law or uncodified statutes into statute law. However, large areas of common law, such as contract law and the law of torts, remain untouched by codification.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that occurs without a marriage license or ceremony. Instead, it is an agreement between two legally capable people who intend to be married, followed by cohabitation. The couple represents themselves to others as a married couple and organises their relationship as such.
Common-law marriage is not permitted in all jurisdictions, but those that do not permit it will typically respect the validity of such marriages if lawfully entered into in another state or country. Common-law marriage is recognised in seven US states and the District of Columbia, and nine other states recognise it with some restrictions. In Canada, couples in marriage-like relationships may be granted many of the rights and responsibilities of a marriage, but they are not legally considered married. In the UK, a 2008 poll showed that 51% of respondents incorrectly believed that cohabiting couples had the same rights as married couples. In Scotland, common-law marriage does not exist, although there was a form of irregular marriage called 'marriage by cohabitation with habit and repute', which was abolished in 2006.
The history of common-law marriage is extensive. In ancient Greece and Rome, marriages were private agreements between individuals and estates. In medieval Europe, marriage fell under canon law, which recognised as valid a marriage in which the parties stated they took each other as husband and wife, even without witnesses. The Catholic Church forbade clandestine marriage at the Fourth Lateran Council in 1215, requiring marriages to be announced in a church by a priest. In 1545, the Council of Trent introduced more specific requirements, ruling that marriages would only be valid if witnessed by a parish priest or bishop, or their delegate.
In 1753, England abolished common-law marriage with the Marriage Act, requiring marriages to be performed by a priest of the Church of England. However, this did not apply to the American colonies, where common-law marriage survived and still exists today.
Common-law marriage should not be confused with cohabitation or other legally recognised relationships, which may have a similar dynamic but are not legally recognised as marriages.
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Common law vs civil law
Common law and civil law are the two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems. Common law, also known as case law or precedent, is a legal system that originated in England and is used in countries that were formerly British colonies or protectorates, including the United States. It is based on judicial decisions and recognises prior court decisions as legally binding precedent. In other words, it relies heavily on stare decisis, or the idea that past decisions should be followed in future cases involving similar facts and legal principles. Common law is generally less prescriptive than civil law, and places more emphasis on freedom of contract, implying few provisions into contracts by law.
On the other hand, civil law is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with notable examples including France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law systems rely on legal codes that function as the primary source of law, rather than judicial precedent. While civil law judges do consider prior decisions, they tend to give less weight to stare decisis and may give more importance to legal scholarship and the interpretation of codes. Civil law is generally more prescriptive than common law, and there are often more implied provisions in contracts.
One key difference between common law and civil law is their approach to contract law. In common law jurisdictions, it is important to set out all the terms governing the relationship between the parties in the contract itself, as there are typically few implied provisions. In civil law jurisdictions, however, contracts may be shorter as inadequacies or ambiguities can be remedied or resolved by operation of law, with more provisions implied into the contract. Additionally, in civil law countries, a separate administrative law may govern PPP arrangements, and unless the contract specifies arbitration, it will be enforced by the administrative courts.
While common law traditionally lacked codification, common law countries are increasingly adopting codes in certain areas of law, such as bankruptcy, intellectual property, antitrust, and banking regulation. For example, in the United States, the Uniform Commercial Code (UCC) is a codified framework governing commercial law that has been enacted in all 50 states. Similarly, the state of California has codified its laws in a similar manner to civil law jurisdictions. On the other hand, civil law jurisdictions are also influenced by common law principles, with Louisiana's criminal law largely based on English common law.
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Codification of common law
Codification is one of the defining features of most civil law jurisdictions. In common law systems, such as English law, codification is the process of converting and consolidating judge-made law or uncodified statutes enacted by the legislature into statute law. Statutes may codify existing common law, create new causes of action, or legislatively overrule the common law. Common law has been codified in many jurisdictions and in many areas of law, including criminal codes, commercial law, bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law.
In the United States, the Uniform Commercial Code (UCC) is an example of a widely adopted codified framework governing various aspects of commercial law. The enactment of the California Codes in the 19th century is another example of codification in the US, where California replaced a pre-existing system based on Spanish civil law with a system based on common law. California and several other Western states have, however, retained the concept of community property derived from civil law.
Louisiana's codified system, the Louisiana Civil Code, is based on principles of private law derived from continental Europe, with some common law influences. The Louisiana code does not directly derive from the Napoleonic Code, enacted in 1804, one year after the Louisiana Purchase, but the two codes share many similarities due to their common roots.
In England, subordinate laws are not officially codified, although consolidation bills have restated the law in many areas. Most of England's criminal laws have been codified, enabling precision and certainty in prosecution. However, large areas of common law, such as contract law and the law of torts, remain untouched by codification.
The movement towards codification gained momentum during the Enlightenment and was implemented in several European countries during the late 18th century. It became widespread after the enactment of the French Napoleonic Code in 1804, which heavily influenced the legal systems of many countries.
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Frequently asked questions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law systems rely on caselaw and legal precedent to guide their decisions.
Civil law systems rely primarily on codes and statutes. Civil law is a comprehensive, codified set of legal statutes created by legislators. Common law systems have greater flexibility in granting different types of security over assets.
In common law legal systems, the first thing to look at are earlier court rulings and decisions. This means you need to search for relevant caselaw, or legal precedent.
Common law systems do not have an official legal code. However, common law countries are increasingly adopting codes, similar to civil law systems, in areas such as bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law.
