Cecily Zamora
The US is often thought of as a common law jurisdiction, but it is actually a mixed legal system. The law of the United States is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and the common law (which includes case law). Common law is derived from judicial decisions instead of statutes, and it is based on the principle of stare decisis, meaning let the decision stand. In the US, all states except Louisiana have implemented reception statutes or adopted the common law by judicial opinion. Louisiana's civil law heritage dates back to European colonization, and it is the only US state with a civil code.
| Characteristics | Values |
|---|---|
| Definition | Common law is law that is derived from judicial decisions instead of from statutes. |
| History | English settlers brought common law to Commonwealth countries (US, Australia, Canada, India, etc.). |
| Exceptions | The state of Louisiana has a civil law system. |
| Comparison with civil law | Common law is often contrasted with Roman-derived civil law, with the two having fundamentally different processes and forms of reasoning. |
| Benefits | Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints. |
| Sources of US law | The law of the United States is derived from constitutional law, statutory law, treaties, administrative regulations, and common law (which includes case law). |
| Legal treatment of divorce | Some American states adhere to the principle of equal rather than discretionary division of assets. |
| Tort law | A notable US tort is interference with privacy, which includes using a person's photograph without permission or taking photographs of persons in embarrassing situations. |
| Contract law | Third parties who are not actually parties to a contract but are persons for whose benefit the contract was made can enforce the contract under US state law. |
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What You'll Learn
US common law is a mixed legal system
The US is often considered a common-law jurisdiction, but it is actually a mixed legal system. Common law, which was brought to the US by English settlers, is based on the principle of stare decisis, or "let the decision stand". This means that case law, rather than legislation, is the primary means of expression of general law.
However, the US has a mixed legal system due to the presence of reception statutes and the influence of civil law. Reception statutes are statutory laws that newly independent nations adopt, which consider the pre-independence common law and precedent originating from it as the default law. While all US states have implemented reception statutes or adopted the common law by judicial opinion, the state of Louisiana is a notable exception. Louisiana's civil law heritage dates back to European colonization, when the territory was claimed by France, Spain, and then France again before being purchased by the US in 1803. Despite attempts to institute the common law system in Louisiana, local lawyers rejected this, and by 1808, Louisiana had its own civil code, which remains in force today.
Furthermore, while the US legal system was initially based on English common law, it has since diverged significantly and incorporated a number of civil law innovations. Civil law, which emerged in continental Europe and was later transplanted to Latin America and other jurisdictions, is based on Roman law and systematic codifications of various areas of law. Over time, the US and England's legal systems have diverged so greatly that their legal approaches differ as much from each other as they do from civil-law countries. For example, in the US, the law is derived from five sources: constitutional law, statutory law, treaties, administrative regulations, and common law (including case law).
In addition, there are some differences between the US and other common-law countries in certain areas of law. For instance, in the economic consequences of divorce, most common-law countries follow the English model of allowing judges to use their discretion in reallocating the property and income of spouses, while some American states adhere to the principle of equal division of assets. Another example is in the area of privacy, where a notable US tort is interference with privacy, which is not recognized as a right in England.
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It is derived from English common law
The US legal system is a mix of common law and civil law, with common law being the more prominent of the two. Common law in the US is derived from English common law, which was in force in British America at the time of the American Revolutionary War. English settlers brought common law to the US and other Commonwealth countries, and it has served as the foundation for the US legal system.
Common law in the US is based on the principle of stare decisis, or "let the decision stand". This means that in common law systems, case law, rather than legislation, is the primary means of expressing general law. In other words, common law is derived from judicial decisions rather than statutes. The form of reasoning used in common law is known as casuistry or case-based reasoning, and it was devised as a means of compensating someone for wrongful acts, known as torts.
While the US legal system is rooted in English common law, it has evolved and diverged significantly over time. American courts rarely follow post-Revolution precedents from England, instead developing their own principles to address the unique legal problems of the American people. This evolution has resulted in notable differences between the legal systems of England and the United States, leading to the saying that the two countries are "separated by a common law".
Despite the differences, there are some similarities between English and US common law. For example, contract law is fundamentally similar in common-law countries, although there are some differences in the enforcement of contracts by third parties. Additionally, the basic principles of property and succession are broadly consistent across common-law countries, although there are variations in the details.
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It is based on the principle of stare decisis
The law of the United States is largely derived from the common law system of English law, which was in force at the time of the American Revolutionary War. All U.S. states, except Louisiana, have either implemented reception statutes or adopted the common law by judicial opinion.
Common law, as applied in civil cases, was designed to compensate for wrongful acts known as torts and to develop the body of law that recognises and regulates contracts. The type of procedure practised in common law courts is known as the adversarial system.
A foundational concept in the American legal system is stare decisis, which means "let the decision stand" or "to stand by things decided" in Latin. The doctrine of stare decisis holds that courts and judges should honour precedent—that is, the decisions, rulings, and opinions from prior cases. This gives the law consistency and makes interpretations of the law more predictable.
Stare decisis lessens the need for subsequent litigation and saves the time and energy of the judiciary by preventing the same legal question or issue from being continually re-litigated. It also increases reliance on judicial decisions and adds to the actual and perceived integrity of the judicial process.
However, stare decisis may result in the retention and spread of incorrect decisions, as it gives priority to past decisions over the interests of a party that has been wronged. In cases where following precedent may lead to unjust outcomes, judges may offer reasons or legal nuances to avoid following precedential decisions or to overturn prior rulings.
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US common law differs from English common law
One key difference lies in their approaches to public law. England lacks a written constitution and restricts judicial review, while the US has a written constitution and grants every court the power to evaluate legislation and official actions against constitutional norms. This power of judicial review has led to the "constitutionalization" of many areas of US law, marking a significant departure from English common law.
Another distinction is in libel law. The US has a less strict approach than England. Public figures in the US cannot sue for honest but unfair and untrue criticisms of their activities, whereas in England, published facts must be true, and comments fair. Privacy is also treated differently. In the US, torts related to interference with privacy are recognised, while in England, privacy is viewed as a commercial consideration rather than a fundamental right.
Divorce law is another area of divergence. While most common-law countries follow the English model of granting judges discretion in reallocating property and income during divorce proceedings, some US states adhere to the principle of equal division of assets.
Additionally, the US operates under a dual system of common and civil law, while England primarily relies on common law. Common law, a body of unwritten laws based on legal precedents, guides unusual cases where existing statutes do not provide clear guidance. Civil law, on the other hand, is a comprehensive set of written statutes that outline procedures and punishments. The US, with its dual system, showcases the influence of both approaches.
Furthermore, the US legal system is more complex due to its federal structure, with laws varying across states and local jurisdictions. This multi-layered system results in American citizens being subject to a multitude of rules and regulations at the federal, state, and local levels.
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It includes case law and is independent of statutes
The US is often thought of as a common-law jurisdiction. However, it is actually a mixed legal system, with a tiny enclave in the US where common law and civil law systems meet: the state of Louisiana. Common law is derived from judicial decisions instead of statutes. In the US, common law was originally fashioned based on English common law. Over time, the American legal system has diverged significantly from its English ancestor, both in terms of substance and procedure, and has incorporated several civil law innovations.
In a common-law system, case law is pre-eminent as the ordinary means of expression of general law. In the US, common law is made by judges and is independent of statutes. This was repeated by the United States Supreme Court in Levy v. McCartee: "It is too plain for argument that the common law is here spoken of, in its appropriate sense, as the unwritten law of the land, independent of statutory enactments".
The principle of stare decisis is constant in US common law legal systems. This means that even if a common-law court is interpreting a statute and not applying common law, prior court decisions interpreting that same statute are precedent and therefore binding. This is a significant difference from civil law legal systems, where a judge's decision is not binding in later cases involving different parties.
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). At the state level, legislatures often subsequently codify common-law rules from the courts of their state, either to give the rule the permanence afforded by a statute, to modify it, or to replace the outcome with legislation.
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Frequently asked questions
Common law is law that is derived from judicial decisions instead of from statutes.
The term common law is often used as a contrast to Roman-derived "civil law". Civil law systems are largely based on systematic codifications of various areas of law.
English settlers brought common law to the US, which was a Commonwealth country. However, American law has diverged greatly from its English ancestor.
All US states, except Louisiana, have either implemented reception statutes or adopted the common law by judicial opinion. Louisiana is the only US state with a civil law system.
Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints.
