Gavin Howe
The US legal system is a combination of civil and common law. The US Constitution is not part of common law, but it does embrace common-law traditions. The US is a common-law country, and all states except Louisiana, which is based on the French civil code, have adopted English common law as the general law of the state. Common law is a body of unwritten laws based on legal precedents established by the courts, and it is used to fill in gaps in statutory law. Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators, which clearly defines the cases that can be brought to court and the procedures for handling claims.
| Characteristics | Values |
|---|---|
| Type of Law | Common Law |
| Legal System | Decentralized federalism |
| Sources of Law | Constitutional law, statutory law, treaties, administrative regulations, and common law |
| Common Law Marriage | Allowed in some states |
| Basis of Common Law | Legal precedents established by higher courts |
| Nature of Common Law | Unwritten laws |
| Nature of Civil Law | Codified set of legal statutes |
| Jurisdiction | Divided into 13 circuits |
| Dual System | Both common and civil law |
| Common Law States | All except Louisiana |
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What You'll Learn
The US legal system is a mix of civil and common law
The US is a common law country, with all states except Louisiana adopting the common law of England as the general law of the state. Common law is a body of unwritten laws based on legal precedents established by the courts. In common law systems, judicial decisions are binding, and courts follow the decisions of higher-level courts within the same jurisdiction. This is known as the doctrine of stare decisis, which ensures consistency in legal rulings. Common law is also more flexible, allowing for changes in societal norms and new cases to shape legal precedents over time.
However, the US legal system has also incorporated civil law innovations. Civil law is a comprehensive, codified set of legal statutes created by legislators, with clear rules and procedures. In the US, the law is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law). While common law is based on judicial opinions and precedents, civil law relies on written codes and rules of decision for specific disputes. The US legal system, therefore, utilizes elements of both common and civil law, with the balance between the two varying depending on the specific jurisdiction and the nature of the case.
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Common law is based on court precedent and prior decisions
The United States is a part of the common law system, which is largely based on court precedent and prior decisions. This is in contrast to civil law systems, which rely more on codes that explicitly provide rules for specific disputes. Common law, also known as judicial precedent, judge-made law, or case law, is a system of law that is primarily developed through judicial decisions rather than statutes. It is deeply rooted in the concept of stare decisis, which means "to stand by things decided" in Latin. Stare decisis holds that courts and judges should honour precedent, meaning that they follow the decisions, rulings, and opinions from prior cases. This gives the law consistency and makes interpretations of the law more predictable.
The common law system in the US is a result of its history as a former colony of England. Many former colonies, including the US, retain the common law system today, and approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law. The US legal system is based on federalism, or decentralization, where the national or federal government possesses significant powers, but individual states retain powers not specifically enumerated as exclusively federal. This results in a complex interplay between state and federal law, with some issues, such as contract interpretation and torts, being based on hundreds of years of judicial opinions.
While common law heavily relies on court precedent, it is important to note that it is not absolutely bound by it. Judges have the power to reinterpret and revise the law without legislative intervention, especially when there is an extraordinarily good reason to do so. This allows the law to adapt to new trends in political, legal, and social philosophy. Additionally, in cases of first impression, where there is no controlling precedent or clear legislative guidance, judges are empowered to establish new precedent.
The federal court system in the US is organised into three tiers: the United States District Courts, which are the trial-level courts; the United States Court of Appeals, which is the first level of appeal; and the United States Supreme Court, which is the final arbiter of the law. The decisions of higher courts, such as the Supreme Court, take precedence over the decisions of lower courts, and this vertical stare decisis is deeply entrenched in the American legal system. Some constitutional scholars even propose the idea of "super precedents", which are fundamental to American justice and are considered virtually permanent decisions.
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Civil law is a comprehensive set of codified legal statutes
The United States operates under a dual system of both common and civil law. The US legal system is based on federalism, or decentralization, where the national or federal government has significant powers, but individual states retain powers not exclusively federal. The law of the United States is largely derived from the common law system of English law, which was in force in British America during the American Revolutionary War.
Civil law, in contrast, is a comprehensive, codified set of legal statutes created by legislators. It is derived from the Corpus Juris Civilis, but is heavily overlain by Napoleonic, Germanic, canonical, feudal, and local practices. Civil law proceeds from abstractions, formulating general principles and distinguishing substantive rules from procedural rules. It holds case law secondary and subordinate to statutory law.
In civil law legal systems, the primary source of law is the law code, a systematic collection of interrelated articles, arranged by subject matter in a pre-specified order. Codes explain the principles of law, rights, and entitlements, and how basic legal mechanisms work. The purpose of codification is to provide all citizens with a written collection of the laws that apply to them and that judges must follow. Law codes are laws enacted by a legislature and are longer than other laws. Rather than a compendium of statutes, the code sets out general principles as rules of law.
In the US, civil law is most prominent in Louisiana, the only state whose private civil law is based on French and Spanish codes, rather than English common law. Louisiana's private law was codified into the Louisiana Civil Code, which has since converged considerably with American law.
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case. The judge presiding over a case determines which precedents apply. Common law promotes stability and consistency in the US legal justice system.
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Common law is derived from English law
The US legal system is a ""common law"" system, which relies heavily on court precedent in formal adjudications. In the US, the common law system coexists with statutory law, which is written into the Constitution. Common law, also known as "case law" or "judge-made law", is derived from its original appearance in medieval England. It was spread across the British Isles and then to overseas colonies, which continued during the British Empire. Many former colonies, including the US, retain the common law system today.
The common law system in the US evolved from a British tradition that spread to North America during the 17th and 18th centuries. It is based on a system of federalism, or decentralisation, where the national government possesses significant powers, but individual states retain powers not exclusively federal. The US 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.
Common law is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law may sometimes prove to be the inspiration for new legislation. It is more malleable than statutory law, as common law courts can reinterpret and revise the law without legislative intervention. Common law evolves gradually over time, reducing disruptive effects.
The defining principle of common law is the requirement that courts follow the decisions of higher-level courts within the same jurisdiction. This is known as stare decisis, which creates a predictable and consistent body of law. In the US, stare decisis is particularly important as it provides an extensive and predictable body of law to govern the conduct of citizens and businesses.
In conclusion, the US legal system is based on common law, which is derived from English law. The common law system in the US has evolved and diverged from its English ancestor, incorporating civil law innovations. However, the fundamental principles of common law, such as the reliance on judicial precedent and stare decisis, remain rooted in English law.
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Civil law emerged in continental Europe
Civil law, also referred to as the law of continental Europe, emerged in Europe as a mixture of Roman, Germanic, ecclesiastical, feudal, commercial, and customary law. Civil law systems are found on all continents and cover about 60% of the world. They are based on concepts, categories, and rules derived from Roman law, with some influence from canon law, and are sometimes supplemented or modified by local customs or cultures.
Civil law is primarily a legislative system, with civil codes that provide general clauses that can be adapted to change. These codes are a systematic collection of interrelated articles, arranged by subject matter, that explain the principles of law, rights, and entitlements, as well as how basic legal mechanisms work. The purpose of codification is to provide all citizens with a written collection of the laws that apply to them and that judges must follow.
The civil law tradition promotes cooperation between human beings and places a strong emphasis on individual freedom. It draws heavily from Roman law, considered the most intricate legal system before the modern era. The system that emerged was called the jus commune, or "citizens' law," which was the late imperial term for its legal system, distinguishing it from the laws governing conquered peoples (jus gentium).
The development of civil law in continental Europe was influenced by the increasing demand for trained judges and administrators, first by the Italian city-republics and then by princes in other localities. Students flocked to Bologna from across Europe, and the study and teaching of law were gradually taken over by local universities. As a result, Roman law spread north of the Alps, especially in Germany and the Netherlands, and was facilitated in the Holy Roman Empire of the German nation due to its emperors' identification with the Roman Caesars.
In the late Middle Ages, civil law was further expanded and developed under the influence of canon law, which achieved supremacy in the field of marriage. The Napoleonic Code of 1804, a codification of private and criminal law in France, also had a significant influence on civil law in Europe, particularly in areas conquered by Napoleon, such as Poland, Louisiana, and the Netherlands.
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Frequently asked questions
The US is a common law country.
Common law is a body of unwritten laws based on legal precedents established by the courts.
Common law is established by judges through written opinions that are binding on future decisions of lower courts in the same jurisdiction.
All states except Louisiana, which is based on the French civil code, follow common law.
Common law countries base their legal systems on medieval England, while civil law countries are based on Rome and Napoleonic France. Common law countries will have similar legal systems, while civil law systems are more prescriptive and rely on codes.
