Kara Sears
The US legal system is primarily a common law system, which means it relies on judicial precedents and is flexible in nature. Common law is a body of unwritten laws based on legal precedents established by the courts. It is flexible as it can respond to changes in society and does not require lawmakers to pass changes in statutes. The US legal system is based on federalism, where the national government has significant powers, but individual states retain powers not exclusively federal. The US system has diverged from English common law, from which it originated, and has incorporated civil law innovations. Civil law, on the other hand, relies on codes and statutes, and is less flexible as it requires lawmakers to pass changes.
| Characteristics | Values |
|---|---|
| Type of Law | Common Law |
| Basis of Law | Court precedent, case law, and previous rulings |
| Flexibility | High |
| Adaptability | High |
| Stability | High |
| Consistency | High |
| Efficiency | High |
| Sources of Law | Constitutional law, statutory law, treaties, administrative regulations, and common law |
| Law Enforcement | Exclusionary rule, Miranda warning, writ of habeas corpus, Third Enforcement Act, Bivens actions |
| Federalism | Decentralized |
| Codification | Heavily codified |
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What You'll Learn
The US legal system is a 'common law' system
The US legal system is a common law system. Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system that relies heavily on court precedent in formal adjudications. In common law systems like that of the US, judicial determinations in earlier court cases are critical to the court's resolution of a matter. This is in contrast to civil law systems, which rely primarily on codes and statutes that provide explicit rules of decision for specific disputes.
The US legal system is based on federalism, or decentralization, where the national government possesses significant powers, but individual states retain powers not exclusively federal. The law of the United States is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law). The common law system in the US is heavily codified, which is more similar to civil law systems.
Common law promotes stability and consistency because outcomes are based on previous case law rather than subjective viewpoints. It is also efficient as judges only need to follow precedent, saving time and money. It is adaptable and flexible as it can respond to changes in society, and higher courts can overrule prior decisions without waiting for lawmakers to act.
The defining principle of common law is that courts follow the decisions of higher-level courts within the same jurisdiction. This has resulted in a predictable and consistent body of law. The federal court system in the US is based on a three-tiered structure, with the United States District Courts as the trial-level courts, the United States Court of Appeals as the first level of appeal, and the United States Supreme Court as the final arbiter of the law.
While the US legal system is primarily a common law system, it has diverged significantly from English common law, and has incorporated civil law innovations.
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Common law is a body of unwritten laws based on legal precedents
The US legal system is largely based on common law, which is a body of unwritten laws based on legal precedents. Common law is a system that relies heavily on court precedent in formal adjudications. In common law systems, judicial determinations in earlier court cases are critical to the court's resolution of the matter at hand, even when a statute is at issue. Common law may also be referred to as "judge-made" law, or case law.
The defining principle of common law is that courts follow the decisions of higher-level courts within the same jurisdiction. This is known as stare decisis, which has resulted in a somewhat predictable and consistent body of law. The federal court system in the US is based on a three-tiered structure, with the US District Courts acting as trial-level courts, the US Court of Appeals as the first level of appeal, and the US Supreme Court as the final arbiter of the law.
Common law is flexible, as it can respond to changes in society. It does not require lawmakers to pass changes in statutes and codes, which can be time-consuming. Instead, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act. This adaptability allows common law systems to address situations not originally predicted by lawmakers.
While the US legal system is primarily based on common law, it has diverged significantly from English common law, incorporating a number of civil law innovations. Civil law systems rely on codes and statutes rather than legal precedents. Civil law provides a comprehensive code of statutes that outlines procedures for handling claims and punishments for offenses. While civil law is more standardized, common law promotes stability and consistency by ensuring that outcomes are based on previous caselaw rather than subjective viewpoints.
In summary, the US legal system follows common law, which is a body of unwritten laws based on legal precedents. Common law provides stability and consistency, allows for adaptability, and offers a flexible framework that can respond to societal changes. However, the US legal system has also incorporated elements of civil law, resulting in a unique blend of both systems.
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Civil law is a comprehensive, codified set of legal statutes
The United States operates under a dual system of both common and civil law. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It relies heavily on court precedent in formal adjudications. The defining principle of common law is the requirement that courts follow decisions of higher-level courts within the same jurisdiction. This promotes stability and consistency in the U.S. legal justice system.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is derived from the Corpus Juris Civilis, but has been heavily overlain by Napoleonic, Germanic, canonical, feudal, and local practices. Civil law systems rely less on court precedent and more on codes, which explicitly provide rules of decision for specific disputes. The primary source of law in civil law is the law code, a systematic collection of interrelated articles arranged by subject matter. Civil law codes are designed to provide all citizens with a written collection of the laws that apply to them and that judges must follow.
In the U.S., the law is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law). The U.S. common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. While the U.S. legal system is heavily influenced by common law, there are some notable exceptions. For example, Louisiana is the only U.S. state whose private civil law is based heavily on French and Spanish codes, rather than English common law. Additionally, many U.S. states have enacted criminal codes that explicitly abolish common-law crimes.
The distinction between common and civil law is not always clear-cut, and there can be overlap between the two systems. For example, while common law is traditionally unwritten, the common law of the U.S. is heavily codified, resembling civil law. At the same time, European law has become more influenced by precedent, a key characteristic of common law.
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US common law has diverged significantly from English common law
The law of the United States is largely derived from the common law system of English law, which was in force in British America at the time of the American Revolutionary War. However, US law has diverged significantly from English common law in both substance and procedure, with the adoption of several civil law innovations.
The most notable differences are in public law. England has no written constitution and restricts judicial review, while every US court can rule on the constitutionality of legislation and official actions. The US Constitution is the supreme law of the nation, prescribing the foundation of the federal government and various civil liberties. It also sets out the boundaries of federal law, including Acts of Congress, treaties, regulations, and case law. This has led to the "'constitutionalization'" of many areas of US law through the increasing exercise of judicial power.
Another divergence between US state law and English common law can be seen in the treatment of property division during marriage dissolution. While most common-law countries follow the English model of allowing judges to use their discretion in reallocating property and income, some American states adhere to the principle of equal division of assets. This means that, in these states, judges have less discretion when dividing property and income between spouses.
In addition, the US has pioneered the concept of the opt-out class action, where the burden falls on class members to notify the court that they do not wish to be bound by the judgment. Another unique feature is the American Rule, where parties generally bear their own attorneys' fees, unlike the English Rule where the losing party pays the attorneys' fees.
Finally, the US legal system is based on federalism or decentralization, with the national or "federal" government possessing significant powers while individual states retain powers not specifically enumerated as exclusively federal. This complex federal system further distinguishes US public law from that of England.
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Common law is flexible, civil law is not
The United States follows a common law system, which is largely derived from English common law, though it has diverged significantly over time. Common law is flexible, while civil law is not.
Common law is flexible because it is less prescriptive than civil law. Common law relies heavily on court precedent in formal adjudications, and judicial determinations in earlier court cases are critical to the court's resolution of the matter at hand. Common law is also known as "judge-made" law or case law. It draws on a rich repository of past decisions but is not bound by them, allowing for the consideration of contemporary contexts outside of the law. This flexibility can encourage good judgment and reasonable application of rules.
In contrast, civil law systems are more prescriptive and rely less on court precedent. They depend more on codes that explicitly provide rules of decision for specific disputes. While civil law does use persuasive precedent, decisions are generally not binding on other courts. Civil law is more focused on the letter of the code, and a judge's resolution beyond the code may not be relevant in subsequent determinations.
The flexibility of common law can be observed in the United States' legal system. For example, while much of the law is derived from English common law, American courts have developed their own principles to address the unique legal problems of the country. Additionally, the exclusionary rule, a judge-made remedy for the abuse of law enforcement powers, demonstrates how common law allows for the creation of new rules to enforce constitutional rights.
However, it is worth noting that common law in the US has also become heavily codified, resembling civil law in some aspects. This codification can be seen in the adoption of statutes and the elimination of certain common-law crimes by enacting criminal codes.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is flexible and adaptable to the unforeseen as it doesn't require lawmakers to pass changes in statutes and codes.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It relies less on court precedent and more on codes that explicitly provide rules of decision for specific disputes.
The US legal system is based on a system of federalism, or decentralisation. The law of the United States is largely derived from the common law system of English law, which was in force at the time of the American Revolutionary War. However, American law has since diverged significantly from English common law.
Common law promotes stability and consistency as the outcome will be based on previous caselaw and not on subjective, personal viewpoints. Civil law, on the other hand, provides a clear framework for all legal scenarios and is regularly updated to reduce bias.
