Kara Sears
Common law is a legal system based on judicial precedent rather than statutes. It originated in England and has been widely adopted, including in the U.S., except for Louisiana, which follows civil code. Common law is more flexible than statutory law, as it evolves through court rulings and judges can interpret past rulings. The role of federal common law is limited and is overridden by congressional legislation. However, it still applies in specific areas, such as interstate disputes and federal government interests. The law of the United States is largely derived from the common law system, influencing legal rulings and shaping areas such as property, contracts, and torts.
| Characteristics | Values |
|---|---|
| Definition | Common law is a legal system based on judicial precedent rather than statutes. |
| Basis | Common law is a body of unwritten laws based on legal precedents. |
| Adaptability | Common law is adaptable to evolving social and economic contexts. |
| Jurisdiction | Common law is widely adopted in the U.S., except for Louisiana, which follows civil code. |
| Federal Common Law | Federal common law applies in limited circumstances, such as interstate disputes, federal government interests, and specific areas like securities fraud. |
| State Common Law | Each state has its own common law traditions and may codify common law rules from their state courts. |
| Precedent | Common law courts can reinterpret and revise the law to adapt to new trends, but are not absolutely bound by precedent. |
| Evolution | Common law evolves over time through court rulings and new cases, allowing for case-by-case evolution. |
| Consistency | The doctrine of stare decisis ensures consistency in legal rulings by requiring courts to follow established precedents. |
| Federal Courts | Federal courts have the implied judicial power to formulate persuasive precedent, as vested by the Founding Fathers in the U.S. Constitution. |
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What You'll Learn
Common law vs civil law
Common law and civil law are the two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems. Common law is based on the Anglo-Saxon tradition and is in force in around 80 countries, including the United States, which inherited it from their time as British colonies. In contrast, civil law is rooted in the Latin/Roman tradition and is practiced in about 150 countries, including Germany and France.
The key difference between the two systems lies in the main source of law. Common law systems, while making use of statutes, consider judicial cases as the most important source of law, giving judges an active role in developing rules. This means that common law is generally uncodified, with no comprehensive compilation of legal rules, and is instead largely based on precedent, created by judicial decisions, where past rulings are taken into consideration when deciding new cases (case law). Common law was originally developed through custom, before laws were written down, and is based on the principle of 'stare decisis', which refers to the binding nature of precedent.
On the other hand, civil law systems rely on legal codes as the primary source of law. These codes are used to cover all eventualities, and judges have a more limited role of applying the law to the specific case at hand. This means that civil law is comprehensively codified, with legal disputes settled by reference to the code, which has been arrived at through legislation. While civil law judges do consider precedent, they tend to give it less weight than their common law counterparts.
Another difference between the two systems is the level of prescription. Civil law is generally more prescriptive than common law. In a civil law system, there are a number of provisions implied in a contract, and less importance is placed on setting out all the terms governing the relationship between the parties in the contract itself. In contrast, common law systems imply very few provisions into a contract, making it crucial to explicitly outline all the terms governing the relationship between the parties within the contract.
In terms of the appointment of judges, common law and civil law jurisdictions tend to differ. Under common law, judges are usually appointed after successful legal careers, while civil law jurisdictions tend to appoint graduates straight out of university.
Understanding the Basics of Common Law
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Federal common law
The common law system, which originated in England, is based on judicial precedent rather than statutes. It is more flexible than statutory law, as it evolves through court rulings and judges interpret past rulings. Common law is adaptable to evolving social and economic contexts, and it differs from civil law, which relies on codified statutes enacted by legislative bodies.
In the United States, federal common law continues to govern in several areas, including admiralty law, antitrust, bankruptcy law, interstate commerce, and civil rights. Federal common law is created by federal courts based on general principles of law. It applies in two main instances: where a federal rule of decision is necessary to protect uniquely federal interests, and where Congress has given courts the power to develop substantive law. For example, in the 1943 case of Clearfield Trust Co. v. United States, the Court recognised that federal courts could create federal common law when federal or Constitutional interests were at stake, and Congress had not adequately addressed the situation.
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Common law in individual states
Common law is a legal system based on judicial precedent rather than statutes. It is more malleable than statutory law, as it evolves through a series of gradual steps and allows for case-by-case evolution. Common law is based on past rulings and is adaptable to evolving social and economic contexts. While federal common law applies in limited circumstances, each US state has its own common law traditions. These traditions vary, and legal rules may differ from state to state.
For example, in the context of common-law marriages, only a handful of states have common law marriages, while a few others have limited recognition. All states, however, must recognize common-law marriages from other states due to the Constitution's full faith and credit clause. This clause mandates that states respect the laws of other states.
Another example is the UCC, a model code that has been enacted with local variations in all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.
Additionally, some states have independently reenacted important British statutes that were in effect during the American Revolution. For instance, the Statute of Frauds and the Statute of 13 Elizabeth, which is the ancestor of the Uniform Fraudulent Transfer Act.
Furthermore, while federal common law applies in specific areas like securities fraud and antitrust regulations, it is overridden by congressional legislation in those areas.
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Common law and contract law
Common law is a legal system based on judicial precedent rather than statutes. It originated in England and has been widely adopted in the US, except for Louisiana, which follows civil code. Common law is more malleable than statutory law, as it evolves through court rulings and allows for case-by-case evolution. Federal common law applies in limited circumstances, primarily in interstate disputes where state laws conflict, federal government interests, and specific areas like securities fraud.
Contract law, on the other hand, is a branch of law that deals with the legal enforcement of agreements between parties. It provides a mechanism for individuals to voluntarily assume legally binding obligations that are enforceable by the other party. Contract law strives to accommodate the varying desires and purposes that individuals seek to express by assuming legal obligations.
In the United States, the two primary sources of law governing contracts are common law and the Uniform Commercial Code (UCC). Common law governs contracts for services and contracts not otherwise governed by the UCC. The elements of common-law contract formation include offer, acceptance, and consideration. Offer and acceptance together form mutual assent. For acceptance to be valid, it must be a mirror image of the offer, and both parties must incur new legal obligations as a result of the contract.
While common law allows for flexibility and adaptability to evolving contexts, contract law provides a framework for enforcing agreements between parties, ensuring that contractual obligations are legally binding and enforceable. Common law influences contract law by providing a set of default rules that courts use to fill gaps in incomplete contracts, ensuring that contracts are valid and enforceable even when certain elements are missing.
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Common law and marginalised groups
Common law is a legal system based on judicial precedent rather than statutes. It is more malleable than statutory law, as it evolves through a series of gradual steps, allowing for case-by-case evolution. Common law judges interpret past rulings, whereas civil law judges apply statutes strictly. Common law originated in England and has been widely adopted in the US, except for Louisiana, which follows civil code.
Marginalised groups are those that are disadvantaged by discrimination based on race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language, or birth. They often lack clear goals and organisations to represent their interests. Marginalised groups include women, youth, lower-caste groups, indigenous peoples, and immigrants.
The flexible nature of common law has had both positive and negative impacts on marginalised groups. On the one hand, common law can adapt to new trends in political, legal, and social philosophy, potentially benefiting marginalised groups. For example, in the case of Roe v. Wade (1973), the U.S. Supreme Court established a precedent for reproductive rights. However, the malleability of common law has also allowed for the perpetuation of biases and discrimination. For instance, in England, common law held that fathers were entitled to custody of children in cases of divorce, a bias that kept women trapped in marriages.
To address the challenges faced by marginalised groups in the context of common law, it is crucial to ensure their equal access to and participation in legal systems. This includes providing skill training programmes that address their specific contexts and needs, such as literacy and numeracy skills. Additionally, promoting diversity and inclusion in legal professions can help ensure that the interests and concerns of marginalised groups are heard and addressed. Furthermore, the development of new legislation can help rectify and realise the right to legal personhood for marginalised groups, as seen in the UK's use of common law to prosecute upskirting.
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Frequently asked questions
Common law is a legal system based on judicial precedent rather than statutes. It is more malleable than statutory law and is adaptable to evolving social and economic contexts.
Yes, common law is still in effect in the USA. The US legal system is largely derived from the common law system of English law, which was in force at the time of the American Revolutionary War. Common law influences US law, but each state has its own common law traditions, and federal common law applies in limited circumstances.
Common law is based on judicial precedent, whereas civil law relies on codified statutes enacted by legislative bodies. Common law is more flexible and allows for case-by-case evolution, while civil law provides more uniformity and predictability.
A famous example of common law in action is Roe v. Wade (1973), where the US Supreme Court established a precedent for reproductive rights. Another example is the UK's common-law offence of "outraging public decency", which has been used to prosecute a new intrusive activity called "upskirting".
