Cecily Zamora
The United States and most Commonwealth countries are heirs to the common-law legal tradition of English law. The US has incorporated many aspects of English common law into its legal system, including the principle of stare decisis, which means to stand by things decided. However, American law has also diverged significantly from its English ancestor in both substance and procedure and has adopted a number of civil law innovations. While the US and England share a common-law heritage, their legal systems have evolved independently over time, leading to many differences in their legal approaches.
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What You'll Learn
The US and English legal systems have diverged
One notable difference between the two systems lies in their sources of law. In the United States, the law is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and common law (including case law). On the other hand, English law, as a common law system, is primarily based on judicial decisions and precedent. While English law places great weight on precedent, the US system gives less precedence to judicial precedent, allowing for more flexibility and adaptation.
The treatment of public law is another area where the two systems differ significantly. England, lacking a written constitution, restricts judicial review. In contrast, the US legal system empowers every court in the country to pass judgments and exercise judicial review. This difference in constitutional framework has led to variations in how the two countries approach legal issues, particularly in areas such as civil liberties and individual rights.
Additionally, the US and English legal systems differ in their approaches to specific legal matters. For example, in the context of divorce, most common-law countries, including England, allow judges to use their discretion in reallocating the property and income of spouses. However, some American states adhere to the principle of equal division of assets, rather than discretionary allocation. Furthermore, the US has unique tort laws, such as interference with privacy, which differ from the English approach, where privacy is often linked to commercial considerations.
The evolution of the US legal system has been influenced by various factors, including the adoption of reception statutes, the interpretation of the Constitution, and the development of American legal principles. While the US legal system continues to bear the imprint of its English common law origins, it has undeniably charted its own course, adapting and innovating to meet the unique needs and challenges of the American legal landscape.
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US law sources
The United States and most Commonwealth countries are heirs to the common-law legal tradition of English law. However, American law has diverged significantly from its English ancestor in terms of both substance and procedure, and has incorporated a number of civil law innovations.
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 US has a written constitution, which England lacks, and every court in the US has the power to pass judgment, whereas England restricts judicial review. The US has also incorporated the British version of 'innocent until proven guilty' into its criminal justice system.
Certain practices traditionally allowed under English common law were expressly outlawed by the US Constitution, such as bills of attainder and general search warrants.
All US states, except Louisiana, have enacted "reception statutes" which generally state that the common law of England (particularly judge-made law) is the law of the state unless it conflicts with domestic law or indigenous conditions. Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding.
Despite the presence of reception statutes, much of contemporary American common law has diverged significantly from English common law. American courts rarely follow post-Revolution precedents from England or the British Commonwealth. Citations to English decisions gradually disappeared during the 19th century as American courts developed their own principles to resolve legal problems.
English cases relating to civil liberties continue to be cited in recent US decisions, though not as "binding precedent". They are used to help illuminate the historical context behind provisions of the US Constitution. For example, the Supreme Court majority in Dobbs v. Jackson Women's Health Organization (2022) cited English law from as long ago as the 13th century in order to inform their analysis of abortion. In another case, Justice Scalia affirmed a line of Supreme Court authority by citing a pre-Revolution case from England to characterize the Fourth Amendment's relation to personal property.
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US reception statutes
The United States and most Commonwealth countries are heirs to the common-law legal tradition of English law. After the 1776 American Revolution, one of the first legislative acts undertaken by each of the newly independent states was to adopt a "reception statute" that gave legal effect to the existing body of English common law.
A reception statute is a statutory law that a former British colony adopts as it becomes independent. Through this statute, the new nation adopts or receives the English common law (and in some cases, the statute law) before its independence, to the extent that it is not explicitly rejected by the new nation's legislative body or constitution.
All US states, with the partial exception of Louisiana, have either implemented reception statutes or adopted the common law by judicial opinion. The specific components of English law that were actually received vary considerably from state to state. For example, the Commonwealth of Virginia adopted the English common law before England abolished trial by combat. Virginia's reception statute stated:
> The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.
Certain practices traditionally allowed under English common law were expressly outlawed by the US Constitution, such as bills of attainder and general search warrants. However, many English common law traditions such as habeas corpus, jury trials, and various other civil liberties were adopted in the United States.
There is no plenary reception statute at the federal level that continues the common law and grants federal courts the power to formulate legal precedent like their English predecessors. Federal courts are solely creatures of the federal Constitution and the federal Judiciary Acts.
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US courts' use of English case law
The US legal system is rooted in English common law, but the two systems have diverged significantly over time. While the US has its own common law, its courts occasionally cite English case law, though rarely current British law.
English cases are sometimes referenced to illuminate the historical context behind provisions of the US Constitution, which is the supreme law of the United States. For example, in the 2012 case of United States v. Jones, the Supreme Court considered whether the installation of a GPS tracker on Jones's car violated the Fourth Amendment. To understand this, the Court looked at English cases relating to civil liberties, though not as binding precedent.
In another prominent example, the Supreme Court's majority in Dobbs v. Jackson Women's Health Organization (2022) cited 13th-century English law to inform their analysis of abortion. This included a quotation from Henry de Bracton's De Legibus et Consuetudinibus Angliae, which is probably the oldest piece of common-law heritage used by the Supreme Court in recent years.
In lower courts, English case law may be considered persuasive or useful, though they would rarely need to refer to "first principles". For instance, in Carpenter v. United States (2018), the majority opinion contained passing references to the general history and scope of the Fourth Amendment, including a citation of Boyd, but did not delve into historical English law. On the other hand, some of the dissenting opinions in this case did cite English cases, such as Entick v. Carrington.
Beyond case law, the US legal system shares several key elements with the English common-law system, such as the structure of jury trials, the presumption of innocence, and the principle of stare decisis, which requires courts to abide by their own previous rulings to ensure uniformity and consistency.
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Differences in public law
The US legal system is directly descended from English courts, especially the “common law" system. However, over time, the two systems have diverged greatly, with legal approaches differing as much from one another as they do from civil-law countries. The most striking differences are found in the area of public law.
Firstly, England has no written constitution and restricts judicial review, whereas every court in the United States has the power to pass judgment on the conformity of legislation and other official actions with constitutional norms. This has led to many areas of US law being "constitutionalized" by the increasing exercise of judicial power. The US's complex federal system and presidential form of government also contribute to the distinctiveness of its public law.
Secondly, the US and UK legal systems differ in their treatment of public figures and privacy. In the US, public figures cannot sue for honest but unfair and untrue criticisms of their activities, whereas in England, published facts must be true and comments fair. Privacy in England is seen as related to commercial considerations, and can be bought but not enjoyed as a right. In the US, a notable tort is interference with privacy, which can include the unauthorised use of one's photograph for advertising, electronic eavesdropping, or taking photographs in embarrassing situations.
Thirdly, the US and UK have different approaches to libel and defamation. In the US, the burden of proof rests with the person claiming defamation, who must prove that the statement made about them was false. In the UK, it is up to the person making the allegedly defamatory statement to prove that it was true. This has historically led to more people bringing libel claims in the UK, as they are more likely to succeed.
Fourthly, the US and UK have different terminology and specialisations for legal professionals. In the US, every legal professional is generally referred to as a lawyer, and litigators and non-litigators are not separately licensed. In the UK, the equivalent of a lawyer is either a solicitor or a barrister, with solicitors providing advice and drafting legal documents, and barristers specialising in trial advocacy.
Finally, the US and UK legal systems have some differences in court procedures and traditions. For example, US courts are commonly televised, unlike courts in the UK. Additionally, US judges and lawyers do not wear wigs, as is traditional in the UK, although they do wear unique styles of robes.
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Frequently asked questions
The US and most Commonwealth countries are heirs to the common-law legal tradition of English law. However, American law has diverged greatly from its English ancestor, and the two nations have so many legal differences that they are sometimes described as “two countries separated by a common law”.
Common law is usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems trace their history to English common law, while civil law systems trace their history through the Napoleonic Code back to Roman law. Common law places great weight on precedent, while civil law judges tend to give less weight to judicial precedent.
Certain practices traditionally allowed under English common law were expressly outlawed by the US Constitution, such as bills of attainder and general search warrants. While English law excludes third-party enforcement of contracts, this is allowed in the US. The US has also diverged from the English model of allowing judges to use their own discretion in reallocating the property and income of spouses in a way that seems fair, with some American states instead adhering to the principle of equal division of assets.
The US has incorporated several English legal traditions, such as the presumption of innocence and the right to a jury trial if faced with a punishment of over six months' imprisonment. The principle of stare decisis, which is key to English common law, also applies in the US. Additionally, US courts often cite pre-Revolution English cases when discussing the evolution of ancient judge-made common law principles.
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