Cameron Miranda
The United States is a common law country, but its legal system is complex and differs from other common law countries in several ways. The US legal system is largely derived from English common law, which was in force at the time of the American Revolution, but has since diverged significantly. The US legal system is also influenced by state and federal systems, with each state having its own constitution, statutes, and regulations. The US has a three-tiered federal court system, with US District Courts 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. The principle of stare decisis, or the idea that courts need to follow previous decisions and rulings, is central to the US legal system.
| Characteristics | Values |
|---|---|
| Type of legal system | Common law system |
| Sources of law | Constitutional law, statutory law, treaties, administrative regulations, and common law (including case law) |
| Number of sources of law | Five |
| Basis of common law | Court decisions, caselaw, and legal precedent |
| Number of layers of special districts an average citizen is subject to | Six or more |
| Number of layers of government an average citizen is subject to | Three or more |
| Number of American reports published in 1810 | 18 |
| Number of American reports published in 1910 | 8,000 |
| Tort law | Interference with privacy |
| Contract law | Allowed |
| Opt-out class action | Pioneered by U.S. courts |
| American Rule | Parties bear their own attorneys' fees |
| Same-sex marriage | Legalized in 2015 |
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What You'll Learn
The influence of English common law
The United States is a common-law country, and its legal system is largely derived from English common law, which was in force at the time of the American Revolutionary War. The US and most Commonwealth countries are heirs to the common-law legal tradition of English law.
The common law system as we know it started in England during the Middle Ages. Common law is a ""body of law" based on court decisions and precedents rather than codes or statutes. A key principle of common law is stare decisis, a Latin phrase that means "to stand by things decided". In practice, this means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases. This results in stability and consistency in the legal system, as outcomes are based on previous case law rather than subjective viewpoints. It also allows for adaptability, as courts can address situations not originally predicted by lawmakers.
While the US legal system has diverged from its English ancestor in terms of substance and procedure, the influence of English common law can still be seen in various areas. For example, in tort law, which relates to private civil wrongs, the US and England share similar approaches, although there are also some notable differences. A unique feature of US tort law is the recognition of interference with privacy as a tort, which is not the case in England.
Another area where the influence of English common law can be seen is in contract law. While contract law is broadly similar in common-law countries, there are some interesting differences. For example, English law generally excludes the enforcement of contracts by third parties who are not actually parties to the contract, except in occasional statutes. In contrast, US state law and the Indian Contract Code of 1872 allow for the enforcement of contracts by third-party beneficiaries.
In terms of succession on intestacy, while there are some similar approaches between the US and England, there are also some key differences. For example, while nearly all American states protect the surviving spouse against disinheritance, in England and most Commonwealth countries, children and other dependents of the deceased are also permitted to petition the court for financial provision out of the estate if the court deems that the testator did not make reasonable provision for them.
While American courts rarely follow post-Revolution precedents from England, the influence of English common law on the US legal system is still significant, and it has helped shape the unique legal landscape of the United States.
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The role of precedent in the US legal system
The United States is a common-law country, which means its legal system relies heavily on court precedent in formal adjudications. The US inherited the principle of stare decisis from English common law, which requires that courts follow the decisions of higher-level courts within the same jurisdiction. This has resulted in a somewhat predictable and consistent body of law.
There are two types of precedent that judges consider: mandatory or binding precedent, and persuasive precedent. Binding precedent refers to earlier decisions made by higher-level courts within the same jurisdiction, which lower courts are required to follow. Persuasive precedent is not obligatory, but courts may consider it to see how other jurisdictions have resolved similar legal issues.
In some cases, judges may encounter a “case of first impression”, where there is no binding precedent due to distinct facts or legal issues from all prior cases within their jurisdiction. In these instances, judges may consider persuasive precedent from other jurisdictions to inform their decision-making.
The US legal system also recognises a distinction between “persuasive” and “authoritative” precedential reasoning. "Persuasive" precedent refers to when courts have a reason to follow precedent, while "authoritative" precedent refers to when courts have an obligation to follow precedent.
Overall, the role of precedent in the US legal system is to provide a degree of consistency and predictability in the application of the law, while also allowing for flexibility and discretion in judicial decision-making.
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The US as a common law country
The United States is a common law country, which means its legal system is based on the English common law that was in force at the time of the American Revolution. However, American law has since diverged significantly from its English predecessor in terms of both substance and procedure, and it has incorporated a number of civil law innovations. The US federal court system is based on a three-tiered structure, with the United States District Courts acting as 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.
The US is one of several countries that continue to rely heavily on common law when resolving legal disputes, alongside Canada, India, and Australia. Common law is a "body of law" based on court decisions and precedents rather than codes or statutes. The principle of stare decisis, a Latin phrase that roughly translates to "to stand by things decided", is central to common law. This means that judges in common law systems are required to follow the decisions and rulings made in previous similar cases, also known as case law.
In contrast, civil law systems, which are used in most countries, rely primarily on codes and statutes. For example, the civil law system in mainland Europe centres around a comprehensive code of statutes that outlines everything from the procedures for handling claims to the punishment for offences. While common law systems offer stability, consistency, efficiency, and adaptability, civil law systems provide clearer guidelines for handling claims and determining punishments.
As a common law country, the US legal system has several unique features. For instance, US courts pioneered the concept of the opt-out class action, where the burden falls on class members to notify the court if they do not wish to be bound by the judgment. Additionally, under the American Rule, parties generally bear their own attorneys' fees, unlike in the English Rule where the losing party pays the legal fees. Furthermore, US contract law generally allows for the enforcement of contracts by third parties who are not actually parties to the contract but are persons for whose benefit the contract was made.
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Differences between common law and civil law
The terms "common law" and "civil law" refer to legal systems. Common law is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England, and today it is used in many countries that were formerly under English rule, including the United States. Common law systems are based on judicial precedent, and judicial decisions are binding precedent. This means that there are many laws in common law countries that develop from judicial decisions rather than legal codes. For example, in the United States, 49 states and the federal government use common law, and there are many laws that are not in the legal codes.
Civil law, on the other hand, is based on legal codes created by legislators. In civil law systems, a legislator drafts a law and writes it into the code, which the court is required to follow. However, the interpretation of the law by the court does not bind future decisions, and the court may later interpret the law differently. Many civil law codes are "comprehensive", meaning that anything not in the code is not law. Civil law systems are typically found in countries that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, including much of Central and South America, Central and Eastern Europe, and East Asia.
Another difference between the two systems is the approach to contracts. In a common law system, there are few provisions implied into a contract, so it is important to set out all the terms governing the relationship between the parties in the contract itself. This often results in longer contracts compared to those in a civil law system, where there are more provisions implied into the contract, and less need to specify every detail.
Additionally, the appointment of judges tends to differ between common law and civil law jurisdictions. Under common law, judges are usually appointed after successful legal careers, while civil law jurisdictions tend to appoint graduates straight out of university.
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The benefits of common law systems
The United States is a common law country, deriving its legal system from English common law, which was in force in British America during the American Revolutionary War. The law of the United States is largely based on common law, alongside constitutional law, statutory law, treaties, and administrative regulations.
Stability and Consistency
Common law promotes stability and consistency because the outcome of a case is based on previous case law and not on subjective, personal viewpoints. This consistency is further enhanced by the principle of stare decisis, which requires that courts follow the decisions of higher-level courts within the same jurisdiction. This creates a predictable body of law that lower courts can rely on when making decisions.
Efficiency
In common law systems, judges primarily need to follow precedent when making decisions, which can make court proceedings shorter and more efficient, saving time and money for all involved.
Adaptability
Common law systems are adaptable to unforeseen situations. While lawmakers create statutes and rules, it is impossible to predict all the scenarios in which courts may need to apply the laws. Common law allows courts to address situations not originally contemplated by lawmakers, filling in the gaps left by legislation. This adaptability is further enhanced by the fact that common law courts are not absolutely bound by precedent and can reinterpret and revise the law to adapt to new trends and changes in society.
Ease of Research and Analysis
In common law systems, legal research and analysis are made easier by the reliance on past cases and precedent. When determining "what the law is" in a given situation, lawyers and judges can look to past cases and court decisions to guide their analysis and predict how a court is likely to rule on the current case. This wealth of past cases and court records provides a valuable resource for understanding and applying the law.
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Frequently asked questions
Yes, the United States is a common-law country.
Common law is a "body of law" based on court decisions or precedent, also known as caselaw, rather than codes or statutes.
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). The federal court system 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 United States is a common-law country, it has diverged from the English common-law system that it was derived from. Certain practices traditionally allowed under English common law were expressly outlawed by the U.S. Constitution, and American courts rarely follow post-Revolution precedents from England. American law has also incorporated a number of civil law innovations.
Common law promotes stability and consistency because outcomes are based on previous caselaw rather than subjective viewpoints. It also allows for efficiency in court proceedings and adaptability to unforeseen situations.
