Gavin Howe
The US legal system is a common law system, which means that it relies on legal precedents and case law to guide future court rulings and decisions. Common law is usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Civil law systems rely primarily on codes and statutes, with a comprehensive code of statutes that outlines everything from procedures to punishments. Common law, on the other hand, is a body of unwritten laws based on precedents and case law. While the US legal system is primarily a common law system, it has also adopted some codes similar to civil law systems in areas such as bankruptcy, intellectual property, antitrust, and tax law.
| Characteristics | Values |
|---|---|
| Type of legal system | Common law |
| Basis | Court decisions, caselaw, legal precedent |
| Countries that use it | US, former British colonies or protectorates |
| Judicial decisions | Binding |
| Freedom of contract | Extensive |
| Emphasis when a business gets into financial trouble | Reorganization rather than liquidation |
| Stability and consistency | High |
| Efficiency | High |
| Adaptability to the unforeseen | High |
| Common law marriage | Allowed in some states |
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What You'll Learn
Common law is based on court decisions and legal precedent
Common law is a body of law based on court decisions and legal precedent. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, common law dictates that judges should adhere to past rulings and precedents when dealing with similar cases in the future. This is in contrast to civil law systems, which rely primarily on codes and statutes.
The common law system is based on the idea that judges should follow a set of principles and precedents established by previous decisions. When a similar case has already been resolved, judges will typically follow the reasoning and precedent set in that previous decision. However, in cases where there is no applicable precedent or clear legislative guidance, judges have the power to resolve the issue and establish new precedents.
The common law system, also known as "judge-made law", originated in England and was established in the practices of the courts of the English kings following the Norman Conquest in 1066. It created a unified legal system that gradually replaced local folk courts and manorial courts. The English Court of Common Pleas, established after the Magna Carta in 1215, played a significant role in the development of common law, with its judges devising rules for handling precedent decisions. The Year Books, yearly compilations of court cases, became an important source of knowledge for the evolving legal doctrines and concepts.
Common law promotes stability and consistency in the legal system. Since decisions are based on previous case law rather than subjective viewpoints, all parties involved can anticipate the potential outcome. Additionally, common law allows for efficiency in court proceedings, as judges only need to follow precedent, saving time and resources. Furthermore, common law provides adaptability to unforeseen situations, as courts can address scenarios not originally predicted or covered by existing statutes.
While common law is based on precedent, it is important to note that higher courts can overrule previous decisions, particularly if they are deemed inconsistent with current trends in political, legal, and social philosophy. This flexibility allows the common law to evolve and adapt to societal changes.
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Civil law systems rely on codes and statutes
The civil law system, which originated in mainland Europe, is often contrasted with the common law system. While common law systems rely on caselaw and legal precedent to guide their decisions, civil law systems rely primarily on codes and statutes.
Civil law systems are in force in about 150 countries and are characterised by their reliance on legal codes. These codes are concise and broadly applicable, typically avoiding factually specific scenarios. In contrast, ordinary statutes are often lengthy and detailed. Civil law codes aim to provide a coherent and comprehensive piece of legislation, outlining everything from procedures for handling claims to the punishment for offences. For example, civil law in France, based on the Napoleonic Code, expressly forbids judges from pronouncing general principles of law.
Civil law systems are sometimes referred to as neo-Roman law, Romano-Germanic law, or Continental law. They are derived from the Corpus Juris Civilis of Roman law, with influences from Napoleonic, Germanic, canonical, feudal, and local practices. Civil law is often paired with the inquisitorial system, but they are not synonymous.
Civil law codes must be changed frequently because court decisions are not considered binding in other cases, even if the facts are similar. This is a key difference from common law systems, where stare decisis, or the principle of standing by previous decisions, is central. In civil law systems, the lack of binding precedent means that courts may not have the authority to act without a statute.
In the United States, a common law country, the Uniform Commercial Code (UCC) is an example of a civil law-inspired framework governing commercial law.
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Common law promotes stability and consistency
The US legal system is a hybrid of common law and civil law. Common law is a body of unwritten laws based on legal precedents and previous case law. It is contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems place great weight on precedent, while civil law judges tend to give less weight to judicial precedent.
Secondly, common law promotes efficiency. Judges need only follow precedent when making decisions, so court proceedings can be shorter, saving time and money. In contrast, civil law codes must be changed constantly because the precedent of courts is not binding, and courts lack authority to act without a statute.
Thirdly, common law is adaptable to unforeseen situations. When lawmakers create statutes, they cannot predict all the situations in which courts may need to apply the laws. However, in common law systems, courts can address situations not originally predicted by lawmakers. Common law has been described as flexible since it can respond to changes in society.
Finally, common law gives more weight to the separation of powers between the judicial branch and the executive branch. This contributes to the robust commercial systems in the United States.
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Civil law has clear rules for judges
The United States is a common law country, which means that its legal system relies on caselaw and legal precedent to guide decisions. Common law systems place great weight on precedent, and judges need to follow earlier decisions and rulings when dealing with similar cases later.
However, this is in contrast to civil law systems, which provide clear rules for judges on how to rule for many specific disputes. Civil law systems rely primarily on codes and statutes, with a comprehensive code of statutes that clearly outlines everything from the procedures for handling claims to the punishment for offences.
Civil law codes must be changed constantly because the precedent of courts is not binding, and because courts lack the authority to act if there is no statute. In civil law systems, a judge's decision is not binding in later cases involving different parties.
While the US is a common law country, it has increasingly adopted codes similar to civil law systems in areas such as bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law. For example, the Uniform Commercial Code (UCC) is a codified framework governing various aspects of commercial law that has been enacted in all 50 states.
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Common law countries are adopting civil law codes
There are two main types of legal systems in the world: Common Law and Civil Law. Common law systems rely on case law and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Common law is based on the principle of stare decisis, which means that courts and judges need to follow earlier decisions and rulings (also known as case law or precedent) when dealing with similar cases later. Civil law systems, on the other hand, center around a comprehensive code of statutes that clearly outlines everything from procedures to punishments.
Countries that follow a common law system are typically those that were former British colonies or protectorates, including the United States, Canada (excluding Quebec), Australia, New Zealand, India, and many others. Civil law systems, on the other hand, are more common in former French, Dutch, German, Spanish, or Portuguese colonies, as well as in Central and Eastern European and East Asian countries.
While the two systems have distinct characteristics, common law countries are increasingly adopting civil law codes in certain areas of law. For example, the United States has enacted the Uniform Commercial Code (UCC), which governs various aspects of commercial law and has been widely regarded as one of the most significant developments in American law. Similarly, France is in the process of introducing a trust law, which is a concept that enables security interests to be held by a trustee for lenders without the need for formal transfer or re-registration, something that is lacking in the French civil law system.
The adoption of civil law codes by common law countries can be seen as an effort to combine the strengths of both systems. Common law systems are known for their stability, consistency, and efficiency due to their reliance on precedent. On the other hand, civil law systems offer the advantage of clear and comprehensive codes that provide specific rules for judges to follow in various situations. By adopting civil law codes in specific areas, common law countries can benefit from the clarity and predictability that come with codified laws while retaining the flexibility and adaptability of common law in other areas.
In conclusion, while common law and civil law systems have traditionally been distinct, there is a growing trend of common law countries adopting civil law codes in certain areas of law. This convergence of legal traditions allows for a more dynamic and adaptable legal framework that can better address the complex and evolving needs of modern societies.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents and previous rulings.
Code law, or civil law, is a system of law based on a comprehensive code of statutes that clearly outlines procedures and punishments.
The US follows a common law system, which was originally based on English common law.
Common law systems place great weight on precedent and previous rulings, whereas civil law systems rely primarily on codes and statutes. Civil law is generally more prescriptive than common law, which leaves the legal code open to interpretation.
In the US, the Uniform Commercial Code (UCC) is an example of a codified framework with similarities to civil law that has been enacted in all 50 states.
