Cecily Zamora
The English common law and the US common law are two legal systems with both similarities and differences. Both are common-law systems, which rely on caselaw and legal precedent to guide their decisions. However, the US operates under a dual system of both common and civil law, and the English common law has influenced the development of the US common law. Over time, the legal approaches of the two countries have diverged significantly, and they are sometimes described as two countries separated by a common law. Differences can be found in the area of public law, with England having no written constitution and restricting judicial review, while every court in the US has the power to pass judgment. Other variations include the legal treatment of the economic consequences of divorce, libel law, and privacy torts.
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What You'll Learn
Libel law
In the US, the burden of proof rests with the person claiming to have been libelled. They must prove that the statement made about them was false. US practice is less strict than the UK in this regard—public figures cannot sue for honest but unfair and untrue criticisms of their activities.
In the UK, the person making the statement must prove that it was true. This has historically led to people bringing libel claims in the UK to protect their reputations, a practice called "libel tourism". However, this is less common today as British courts now require the plaintiff to demonstrate that a defamatory statement will cause "serious harm".
The UK, with the exception of Northern Ireland, has no laws about how pedestrians can cross roads. In the US, the same act is called "jaywalking" and is a crime, although the level of enforcement varies from place to place.
The US has a Constitution, and its legislative functions operate at different levels. There are federal, state, and local laws, and each state has its own laws and courts, so legislation can vary. The UK has one body of laws, with some variations in Scotland and Northern Ireland.
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Tort law
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. This is an example of how the growth of insurance has subtly affected tort law by shifting liability to those most able to pay for coverage. This has resulted in a notable US tort of interference with privacy, which includes using a person's photograph for advertising without permission or taking photographs of persons in embarrassing situations. In England, privacy is seen as related to commercial considerations, and while it can be bought, it is not enjoyed as a right.
Another difference lies in the definition of battery. In English law, battery is characterised as "unauthorised touching", whereas in American law, it is defined as "harmful or offensive touching".
US tort law also includes strict liability for products based on Greenman v. Yuba Power Products, broader rules for admitting evidence, increased damages for emotional distress, and toxic torts and class-action lawsuits.
In terms of economic consequences, most common-law countries follow the English model, which permits judges to use their own discretion in reallocating the property and income of spouses in a way that seems fair. In contrast, some American states adhere to the principle of an equal division of assets.
Finally, the common law of tort in England is particularly relevant for determining the type of liability an employer has when there is scientific uncertainty about the cause of an injury. For example, in asbestos disease cases, a worker may have held multiple jobs where they were exposed to asbestos, but their injury cannot be traced with certainty to any one employer. In such cases, the House of Lords has held that if any employer materially increased the risk of harm to the worker, they could be jointly and severally liable and sued for the full sum.
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Public law
The English and US common-law systems have many differences, despite the US system being originally based on English common law. One of the most notable differences is found in the area of public law. England has no written constitution and restricts judicial review, whereas the US has a written constitution and every court has the power to pass judgment.
Another key difference is the treatment of libel. 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. In the US, a tort unique to the country is interference with privacy, which includes the use of a person's photograph for advertising without permission, electronic eavesdropping, or taking photographs of persons in embarrassing situations. In England, privacy is seen as related to commercial considerations, and so can be bought but not enjoyed as a right.
In the US, some states have abolished the statutes allowing for common-law marriage, whereas in England, common-law marriage is still recognised.
In terms of the economic consequences of divorce, most common-law countries follow the English model, which permits judges to use their discretion in reallocating the property and income of the spouses in a way that seems fair. Some US states, however, adhere to the principle of an equal division of assets.
The US and English common-law systems share similarities in their treatment of tort law, which is based on private civil wrongs. Both countries have introduced reforms to allow claims by dependents of persons tortuously killed and to remove immunity for the government or charitable institutions from tort claims.
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Divorce law
Common law is a legal system that gives past judicial decisions the force of law in future decisions by principle. While both the United States and England use a common law system, there are some key differences between the two. English common law has a longer history and has been influential in the development of legal systems around the world. US common law, on the other hand, has been shaped by a unique constitutional and cultural context.
One of the primary differences between English and US common law is the role of courts and legislation. In the US, courts play a more active role in interpreting the constitution and statutes, and they are more willing to overturn previous decisions or create new law through judicial decision-making. In England, courts are more restrained in their interpretation of statutes and are generally more deferential to past decisions, with legislative action often playing a larger role in changing the law.
Another difference lies in the treatment of precedent. While both systems rely on precedent, US courts are more willing to distinguish, limit, or overturn past decisions, especially at the state level. English courts, however, place a greater emphasis on precedent and are generally slower to depart from established case law.
Now, focusing on divorce law within this context:
Additionally, the process of obtaining a divorce also differs. In the US, divorce is typically handled at the state level, and procedures can vary from state to state. Many states have adopted a simplified process for uncontested divorces, where the spouses agree on all issues, including property division and child custody. These divorces can often be finalized relatively quickly and inexpensively. In England and Wales, the process is more uniform across the country. While there are two different processes depending on whether the divorce is contested or uncontested, the procedures are generally more formal and lengthy compared to many US states.
Finally, the approach to spousal maintenance (alimony) and the division of assets also differs. In the US, there is more variation among states, with some states providing for temporary spousal support during the divorce process and the possibility of long-term maintenance after the divorce, especially in cases of a lengthy marriage or a spouse who sacrificed their career for family responsibilities. Other states may limit spousal support to a set number of years or not provide for it at all. In England and Wales, the court has a wide discretion in determining spousal maintenance, but the overall approach tends to be more conservative, with a focus on ensuring financial independence for both spouses within a reasonable time frame. The division of assets also varies, with some US states following a community property approach, while England and Wales utilize a concept of "fairness," which may result in a more equal or unequal division of assets depending on the circumstances.
In conclusion, while both the US and England utilize a common law system, their approaches to divorce law showcase some of the broader differences between the two legal systems. US divorce law tends to offer more flexibility and variation among states, reflecting a willingness to adapt to changing social norms and values. In contrast, English divorce law has traditionally been more conservative and slower to change, emphasizing stability and predictability in the law.
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Jury trials
The jury trial system in the US evolved from English common law, which was adopted by the US and other British colonies. The right to a jury trial was considered one of the essential liberties of a free country by eighteenth-century Americans.
However, there are some key differences in the way jury trials are conducted in the two countries. One significant difference is the composition of the jury. In the US, a jury typically consists of 12 individuals selected from the local community. In England, a jury is also composed of 12 individuals, but they are chosen at random from the population by the court service.
Another difference lies in the role of the judge during the trial. In the US, the judge takes an active role, making decisions on issues such as the admissibility of evidence and instructing the jury on the law. On the other hand, in England, the judge has a more limited role, primarily ensuring that the trial is conducted fairly.
Additionally, the process by which the jury reaches a verdict can differ between the two countries. In the US, verdicts in criminal cases must be unanimous, whereas in England, this may not always be the case.
The jury system has been criticised for its potential to be exploited, particularly in the past regarding race in the US and class in the UK. However, supporters of the jury system argue that it has strong checks and balances and can lead to less biased outcomes compared to a judge-only system.
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Frequently asked questions
English common law is a body of unwritten laws based on legal precedents established by the courts. US common law, on the other hand, operates under a dual system of both common and civil law. US common law is based on English common law, but the two systems have diverged significantly over time, particularly in the area of public law. For example, England has no written constitution and restricts judicial review, while every court in the US has the power to pass judgment.
In the US, public figures cannot sue for honest but unfair and untrue criticisms of their activities. In England, published facts must be true, and comments fair.
Most common-law countries, including England, allow judges to use their discretion in reallocating property and income between spouses in a way that seems fair. In contrast, some US states adhere to the principle of an equal division of assets.
