Cameron Miranda
There are two main types of laws: case law and statutory law. Case law, also known as common law, is based on precedents or the judicial decisions of previous cases. It is created by judicial bodies such as the Fourth Circuit Court of Appeals or the Virginia Supreme Court. Statutory law, on the other hand, is created by legislative bodies such as Congress or a state legislature. It is a comprehensive, codified set of legal statutes that define the cases that can be brought to court, the procedures for handling claims, and the punishments for offences. While case law is based on past decisions, statutory law is based on written codes or constitutions.
| Characteristics | Values |
|---|---|
| Type of legal code | Civil law is a comprehensive, codified set of legal statutes created by legislators. Common law, or case law, has no official legal code and relies on detailed records of similar situations and statutes. |
| Basis of decisions | Civil law decisions are historically brief and not amenable to establishing precedent. Common law relies on precedent and judges are bound to past decisions. |
| Sources of law | Civil law is created by legislators. Common law is created by judicial bodies. |
| Role of academics | Civil law systems are historically not influenced by legal scholarship. Common law systems increasingly cite academic writers as persuasive authority. |
| Flexibility | Civil law is regularly updated with standardized codes. Common law allows for freedom of interpretation and can adapt to situations not contemplated by the legislature. |
| Consistency | Civil law aims to create order and reduce bias in the application of laws. Common law promotes stability and consistency in the legal system. |
| Marginalization | Common law has historically led to the marginalization or disempowerment of certain groups. |
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What You'll Learn
Common law vs civil law
There are 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 and Civil Law.
Common Law
Common law, also known as case 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 uses the detailed facts of a legal case that have been resolved by courts or similar tribunals. These past decisions are called "case law" or precedent. Common law places an emphasis on precedent while allowing some freedom for interpretation. There is no official legal code that can be applied to a case at hand. The judge presiding over a case determines which precedents apply to that particular case. Common law is less prescriptive than civil law. Countries that follow a common law system are typically those that were former British colonies or protectorates, including the United States.
Civil Law
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is the world's most common legal system, practiced in about 150 countries. Civil law is primarily contrasted with English common law, which influenced the legal traditions of English-speaking countries. Civil law is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, most notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law systems are characterized by their reliance on legal codes that function as the primary source of law. Civil law is more prescriptive than a common law system.
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Case law and precedent
Case law, also known as common law, is a law based on precedents, or judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a legal case that has been resolved by a court or similar tribunal. These past decisions are called "case law" or precedent.
Stare decisis, a Latin phrase meaning "let the decision stand", is the principle by which judges are bound to such past decisions, drawing on established judicial authority to formulate their positions. In other words, stare decisis means that a court must follow and apply the law as set out in the decisions of higher courts in previous cases. Case reports, or "law reports", make this possible.
In the common law tradition, courts decide the law applicable to a case by interpreting statutes and applying precedents that record how and why prior cases have been decided. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Similar to civil law, the goal of common law is to establish consistent outcomes by applying the same standards of interpretation.
In some instances, precedent depends on the case-by-case traditions of individual jurisdictions. As a result, elements of common law may differ between districts. For example, in Sweden, the Supreme Court and the Supreme Administrative Court have the right to set precedent, which is binding in practice but not formally.
In the US, common law is not common, but a number of states have statutes or allow for common law marriage if certain requirements are met. Judges present the precedents that apply to a case, and these can significantly influence the criteria that a jury uses to interpret a case.
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Common law marriage
Common-law marriage, also known as a non-ceremonial marriage, is a legal framework that may allow couples to be considered married without having formally registered their union or participated in a marriage ceremony. In other words, it is a marriage that results from an agreement between two people who intend to be married, followed by cohabitation, rather than through a statutorily defined process.
The term "common-law marriage" is often used incorrectly to describe various types of couple relationships, such as cohabitation or other legally formalized relations. While these interpersonal relationships are often called "common-law marriages", they differ from its legal definition in that they are not legally recognized as marriages. Instead, they may be considered a "domestic partnership", "conjugal union", or "civil union".
The requirements for common-law marriage vary depending on the jurisdiction, and not all jurisdictions permit it. However, those that do recognize it generally require the following:
- Cohabitation: The couple must live together for a period of time, although there is no statutory requirement for the length of time. The longer the couple lives together, the stronger their case is for common-law marriage.
- Legal right or "capacity" to marry: Both partners must have the legal capacity to marry, which usually means they must be at least 18 years old, of sound mind, and not already married to other people.
- Intent: Both partners must intend to be married and hold themselves out to friends, family, and the public as a married couple. This can include referring to each other in public as "partner", "spouse", etc., or taking the same last name.
In the United States, common-law marriage has existed since colonial times and is currently recognized in seven states and the District of Columbia, with nine other states recognizing it with some restrictions. In Canada, while some provinces may grant couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married and may be defined as "unmarried spouses".
It is important to note that the concept of common-law marriage should not be confused with "clandestine marriage," which refers to marriages conducted in secret or without proper authorization. England and Wales abolished clandestine and common-law marriages in 1753, requiring marriages to be performed by a priest of the Church of England. However, this did not apply to the American colonies, where common-law marriage survived and still exists today, albeit with varying degrees of recognition across different states.
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Statutory law
The US federal statutes can be found in the Statutes at Large (chronologically) or in the United States Code (codified by subject matter). Similarly, state statutes can be found online or in print, such as the latest edition of the Wisconsin Statutes available online from the Wisconsin State Legislature or via Westlaw.
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Regulatory law
The process of creating regulations typically involves a period of public consultation, during which interested individuals and organizations can provide input and feedback on the proposed regulations. This allows for a degree of public participation and helps to ensure that the regulations are practical and effective. After the consultation period, the agency will consider the feedback received and make any necessary adjustments before finalizing the regulations.
The specific regulatory laws and agencies in place can vary depending on the country and its legal system. However, the overall purpose of regulatory law is to provide detailed rules and guidelines that supplement and support the broader statutes and laws created by legislative bodies. These regulations help to ensure that laws are implemented and enforced consistently and effectively, contributing to a well-functioning legal system.
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Frequently asked questions
There are three major categories of law, but the two main systems of law are civil law and common law, also known as case law.
Civil law is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence.
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries.
Civil law is regularly updated with the goal of creating order and reducing bias. Common law, on the other hand, does not have an official legal code and relies on detailed records of similar situations and statutes.
