Gavin Howe
The United States' legal system is largely derived from English common law, which was in force at the time of the American Revolution. The US and England have so many legal differences that they are sometimes described as two countries separated by a common law. Despite this divergence, the US has retained many aspects of English common law, including the principle of stare decisis, which holds that courts and judges need to follow earlier decisions and rulings when dealing with similar cases. Additionally, the US criminal justice system is founded on the presumption of innocence, which is another aspect of English common law.
| Characteristics | Values |
|---|---|
| Legal system of the US | Largely derived from English common law |
| Heavily influenced by Britain's common law tradition | |
| Has incorporated certain fundamental principles of English law, such as the presumption of innocence in criminal justice | |
| Has diverged from English common law in many areas, especially public law | |
| Has adopted civil law innovations and constitutional law, statutory law, treaties, and administrative regulations as additional sources of law | |
| Has greater judicial power at the federal and state levels, allowing for the declaration of state laws as unconstitutional | |
| Retains similarities in private law, family law, and divorce law | |
| Shares a common language with English law, which facilitates legal understanding and development | |
| Tort Law | Originates from English common law |
| Succession laws | Similar in structure, but differ in detail |
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What You'll Learn
The US legal system's roots in English common law
The US legal system has its roots in English common law. The common law system, as we know it, started in England during the Middle Ages. The United States and most Commonwealth countries are heirs to the common-law legal tradition of English law.
English common law has influenced the US legal system in several ways. Firstly, the principle of 'stare decisis', which is a Latin phrase meaning "to stand by things decided", is a fundamental aspect of both legal systems. This means that courts and judges in both countries need to follow earlier decisions and rulings, also known as case law or legal precedent, when dealing with similar cases.
Secondly, the US criminal justice system is founded on the presumption of innocence, which is also a feature of English common law. In both countries, guilt must be proven beyond a reasonable doubt for an individual to be convicted. Additionally, the US and England share the same evidentiary standard for civil trials, which is a preponderance of evidence.
Another area where the influence of English common law is evident is in injury law or "tort law". Many of the fundamental principles of tort law in the US originated in England.
Despite these similarities, it is important to note that the US legal system has also diverged significantly from English common law over time. The legal approaches of the two countries differ greatly, especially in the area of public law. Certain practices traditionally allowed under English common law, such as bills of attainder and general search warrants, were expressly outlawed by the US Constitution. Additionally, while English law lacks a written constitution and restricts judicial review, the US legal system is characterized by a complex federal system and a presidential form of government, which has led to the "constitutionalization" of many areas of US law.
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Differences in public law
The English and American legal systems have many similarities, owing to the fact that the US legal system is directly descended from English courts. However, over time, the two systems have diverged, with differences arising in public law, legal education, court proceedings, and the treatment of economic consequences in divorce law.
Legal Education
In the UK, law students must pursue further courses and apprenticeships after their law degree. Conversely, in the US, students need only take a three-year course at an accredited law school before taking a bar exam in their state of choice.
Court Proceedings
US courts allow cameras and media into courtrooms, and criminal trials are often televised. While the UK historically refused to allow filming in courtrooms, this is beginning to change, with cameras permitted in some cases. Additionally, the attire of legal professionals differs between the two countries. US judges and lawyers do not wear wigs, while their British counterparts don wigs to symbolise the respect for the court and the legal system.
Public Law
One of the most striking differences between the two legal systems lies in the area of public law. England lacks a written constitution and restricts judicial review, while the US grants every court the power to judge the conformity of legislation and official actions to constitutional norms. This has led to the "constitutionalization" of many areas of US law. Additionally, the US has a complex federal system and a presidential form of government, which sets it apart from the parliamentary system in England.
Divorce Law
While both England and the US allow for "mixed grounds" for divorce, including fault-based and no-fault grounds, they differ in their treatment of economic consequences. England follows the discretionary model, allowing judges to use their own discretion in reallocating property and income of spouses. In contrast, some American states adhere to the principle of equal division of assets.
Tort Law
The British legal system has influenced US tort law, including the ability of citizens to sue public entities. However, there are differences in libel law, with US practice being less strict. In the US, public figures cannot sue for honest but unfair and untrue criticisms, while in England, published facts must be true to avoid libel suits.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Divorce law
The English common law system has had a significant influence on the American legal system, particularly during the colonial period of the 17th and 18th centuries. However, over time, the American legal system has evolved independently, resulting in notable differences between the two systems, including in the area of divorce law.
In the context of divorce law, there are several differences between the English common law system and American law. Firstly, while both systems allow for divorce based on the fault of one spouse or no-fault grounds such as separation or breakdown of the marriage, some American states have eliminated fault grounds entirely. Secondly, there are differences in the legal treatment of the economic consequences of divorce. Most common-law countries, including England, allow judges to use their discretion in reallocating property and income between spouses based on fairness. In contrast, some American states adhere to the principle of an equal division of assets.
Another difference lies in the recognition of common-law marriage, which is a legal framework that considers couples married without a formal civil or religious ceremony. While not common in the US, several states continue to recognise common-law marriages if certain requirements are met. The criteria for establishing a common-law marriage can vary between states, and disputes over the existence of such marriages can complicate the divorce process, particularly regarding property division, spousal support, and child custody.
Additionally, the intense legislative activity in the 1960s and 1970s, driven by the advancement of gender equality, left most common-law countries, including the US, with systems of "mixed grounds" for divorce. This transformation in personal status law reflects the evolving societal values and legal interpretations in both the US and other common-law jurisdictions.
In conclusion, while the English common law system has historically influenced the development of American law, including divorce law, the US legal system has evolved independently, resulting in distinct approaches and variations in divorce laws between the two countries. These differences highlight the dynamic nature of legal systems and their adaptation to societal changes and unique contexts.
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Transfer of land
The US legal system operates under a dual system of both common and civil law. The US common law originates from medieval England and has evolved from a British tradition that spread to North America during the 17th and 18th centuries. However, the legal systems rooted in English common law have diverged significantly over time, and the English and US legal approaches differ greatly in many areas.
English land law recognises four main ways of acquiring land: through a gift, trust, succession, and by contract. All of these involve express or at least presumed consent. For example, in the case of an ordinary gift during a person's life, the Law of Property Act 1925 requires a deed.
The transfer of land in England is governed by a system of title registration. The Land Registration Act 2002 outlines that any sale, mortgage, or lease over seven years must be compulsorily entered on the register. However, it does not include a transfer by operation of law, meaning land can be inherited or kept within the family without being registered.
Historically, English land law recognised a split between the legal and equitable owners of land. The courts of common law took a strict approach to the rules of title to land, while the Chancellor, as the head of equity, recognised that the owner in equity could be a different person if dictated by good conscience. This recognition of a split between legal and equitable ownership was the beginning of trust law.
In English land law, there are also important charges that must be registered, such as restrictive covenants and equitable easements. Without registration, these charges would be void, but once registered, they bind everyone.
American property law has been heavily influenced by English land law. Most states in the US use a title recording system to manage title to real property, similar to the English system. However, there are some differences in the specific laws and regulations governing the transfer of land between the two countries. For example, in the US, the sale of land is regulated by local legislation and labour legislation, which may differ from state to state.
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The influence of the British monarchy
The British monarchy, with traditions dating back to 1066 and earlier, has had a profound impact on the development of law in the United States. The King or Queen once stood at the top of the legal system, controlling the appointment of judges. While the appointment process has evolved to include various parties, the influence of the monarchy remains evident.
One of the most notable influences of the British monarchy on the American legal system is the principle of "innocent until proven guilty." The United States' criminal justice system is founded on this presumption of innocence, which originated from Britain and forms the basis of their system today. Both countries also share the same evidentiary standard for civil trials, known as the preponderance of evidence, which is a lower burden of proof than the criminal standard.
Another area where the influence of the British monarchy can be observed is in injury law, or "Tort Law." Many of the fundamental principles of this area of law come directly from England, shaping the legal landscape in the United States. The concept of stare decisis, a Latin phrase meaning "to stand by things decided," is also inherited by American courts from their English counterparts. This principle underscores the importance of following earlier decisions and rulings, creating a framework for legal precedent.
While the American legal system has diverged from its English ancestor, the influence of the British monarchy and common law traditions are still evident in various aspects of US law. The legal customs and practices of the United States reflect the rich history and traditions of the British monarchy, shaping the foundation of their legal system.
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Frequently asked questions
Yes, the law of the United States is largely derived from the common law system of English law, which was in force in British America at the time of the American Revolutionary War.
The United States' criminal justice system is founded on the presumption of innocence, which is a direct influence from Britain's legal system. Additionally, the United States and Britain share the same evidentiary standard for civil trials, which is a preponderance of the evidence.
The legal systems rooted in English common law have diverged significantly over time, and the legal approaches of common-law countries can differ greatly from one another. For instance, England has no written constitution and restricts judicial review, while the United States has a complex federal system and a presidential form of government.
American judges, like common law judges elsewhere, apply the law and also make the law through their decisions, which become precedent for future cases. This principle, known as stare decisis, is a fundamental aspect of common law legal systems.
Divorce law in the United States has been influenced by English common law, resulting in a system of "mixed grounds" for divorce. While some states consider the fault of one spouse, others have eliminated fault grounds entirely and focus on no-fault grounds such as separation or the breakdown of the marriage.
