Anaya Nolan
The United States is a common law country, except for the state of Louisiana, which follows a civil code. The common law of England was adopted as the general law of the state, except when a statute provides otherwise. Common law is based on judicial precedent and case law, rather than statutory law. It is adaptable to evolving social and economic contexts, and changes over time as new cases are adjudicated. In the US, the law is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law).
| Characteristics | Values |
|---|---|
| Countries using common law | United States, United Kingdom, Canada, Australia |
| Countries using civil law | France, Germany, Japan, Mexico, Egypt, most of Central and South America |
| Basis of common law | Judicial precedent, caselaw, unwritten law |
| Basis of civil law | Statutory law, codified statutes, codes |
| Common law in the US | All states except Louisiana |
| Common law areas | Property, contracts, torts, securities fraud, antitrust regulations |
| Federal common law | Applies to interstate disputes, foreign relations, maritime law |
| Common law evolution | Changes over time, adapts to evolving social and economic contexts |
| Common law decisions | Binding in a particular jurisdiction, higher court decisions supersede lower court decisions |
| Stare decisis | Principle that ensures consistency in legal rulings by requiring courts to follow precedents |
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What You'll Learn
Common law in the US vs. English common law
The US is a common law country, and its legal system is based on the common law system of English law, which was in force in British America at the time of the American Revolutionary War. However, American common law has diverged significantly from English common law, and the two systems now have many differences.
Common law is a legal system based on judicial precedent rather than statutes. It is a body of unwritten laws based on legal precedents established by the courts. In common law systems, judges interpret past rulings and apply them to new cases, while in civil law systems, judges apply the law based on written legal codes. Common law is adaptable to evolving social and economic contexts, as it is based on precedent rather than statutes. Judicial decisions play a crucial role in shaping common law, particularly in areas such as property, contracts, and torts.
The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. At the federal and state levels, with the exception of Louisiana, the law of the United States is largely derived from English common law. However, American courts rarely follow post-Revolution precedents from England. Citations to English decisions gradually disappeared during the 19th century as American courts developed their own principles to resolve legal problems.
English common law and American common law have diverged in several areas. For example, in the field of libel, US practice is less strict than English law. In the US, public figures cannot sue for honest but unfair and untrue criticisms of their activities, while in England, published facts must be true and comments fair. In divorce law, some American states have eliminated fault grounds entirely, while most common-law countries follow the English model that allows judges to use their discretion in reallocating property and income. In the area of public law, England has no written constitution and restricts judicial review, while every court in the US has the power to pass judgment.
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Federal common law
The United States is a common law country. In all states except Louisiana, which is based on French civil code, the common law of England was adopted as the general law of the state. However, American common law has diverged significantly from English common law, and American courts rarely follow post-Revolution precedents from England.
The Supreme Court has recognized that federal common law exists in two instances: where a federal rule of decision is necessary to protect uniquely federal interests, and where Congress has given the courts the power to develop substantive law. For example, in the 2020 Supreme Court opinion Rodriguez v. FDIC, the Court struck down a federal common law rule addressing the distribution of corporate tax refunds, quoting an earlier decision that federal "common lawmaking must be 'necessary to protect uniquely federal interests'".
In the 1938 case Erie Railroad Co. v. Tompkins, the Supreme Court overruled Swift v. Tyson, holding that federal courts exercising diversity jurisdiction must apply the statutory law of the states but not the common law developed by state courts. This decision affirmed that there is no "federal general common law".
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Common law and constitutional law
The United States is a common law country. In all states except Louisiana, which is based on French civil code, the common law of England was adopted as the general law of the state. Common law is based on judicial precedent rather than statutes. It is adaptable to evolving social and economic contexts and changes over time. It is derived from judge-made laws, otherwise known as case law.
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 American legal system is based on federalism or decentralization. While the national or federal government has significant powers, individual states retain powers not exclusively federal. Most states have court systems that mirror the federal court system.
Constitutional law is one of the sources of law in the United States. It is a part of criminal procedure law, which consists of a massive overlay of federal constitutional case law interwoven with federal and state statutes. These statutes provide the foundation for the creation and operation of law enforcement agencies, prison systems, and criminal trial proceedings. Constitutional issues are subject to federal jurisdiction.
Common law is a system of jurisprudence that originated in England and was later adopted in the United States. It is based on precedent instead of statutory laws. It is derived from the unwritten law of England and the statutes passed before the settlement of the United States. Common law in the United States has diverged significantly from English common law. American courts rarely follow post-Revolution precedents from England or the British Commonwealth. American courts developed their own principles to resolve legal problems, and the number of published volumes of American reports soared from eighteen in 1810 to over 8,000 by 1910.
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Common law and civil law
The United States is a common law country. In all states except Louisiana, the common law of England was adopted as the general law of the state, except when a statute provides otherwise. Common law has no statutory basis; judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. Broad areas of the law, most notably relating to property, contracts, and torts, are traditionally part of common law.
Common law is based on judicial precedent rather than statutes, making it adaptable to evolving social and economic contexts. The common law system originated in England and has been widely adopted, including in the U.S. Judicial decisions play a crucial role in shaping common law. Common law differs from civil law, which relies primarily on codified statutes. Civil law systems rely less on court precedent and more on codes, which explicitly provide rules of decision for many specific disputes. 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.
Countries following a common law system are typically those that were former British colonies or protectorates, including the United States. There are few provisions implied into a contract under the common law system, so it is important to set out all the terms governing the relationship between the parties to a contract in the contract itself. This often results in a longer contract than one in a civil law country. Common law may refer to "judge-made" law, otherwise known as case law.
In contrast, civil law is generally more prescriptive than a common law system, with many provisions implied into a contract by law. Countries following a civil law system are typically those that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America and Central and Eastern European and East Asian countries. In a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
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Common law and statutory law
The United States is a common law country. In all states except Louisiana, which is based on French civil code, the common law of England was adopted as the general law of the state. Common law is a legal system based on judicial precedent rather than statutes. It is also known as ""case law"" or "judge-made law". It is unwritten and based on past case decisions. Judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. Common law changes over time, and each state has its own common law on many topics.
Statutory law, on the other hand, is created by legislative bodies and is written and codified. It is also known as "civil law". It is much more rigid in its application and is applied as written, without relying on past cases to interpret it. Statutory law is subject to change and can be amended or repealed by lawmakers.
Both common law and statutory law set standards of acceptable behaviour and justice for citizens and the government. While they come from different origins and are applied differently, they are both essential to how the legal system functions.
In the United States, the law is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law).
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Frequently asked questions
Yes, the US is a common-law country.
Common law is based on judicial precedent rather than statutes. Judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction.
The US and the UK have different common law traditions. While the US has a federal common law system, each state has its own common law on many topics. The role of federal common law is limited and applies primarily to interstate disputes, federal government interests, and specific areas like securities fraud. American law has also diverged from English common law over time, and American courts rarely follow post-Revolution precedents from England.
