Cameron Miranda
The US common law system, also known as the American common law system, is a legal system that is primarily based on judicial decisions and precedents rather than statutes. It is deeply rooted in the principle of stare decisis, which means that courts follow precedents established by previous decisions. This system, which is in contrast to Roman-derived civil law, was inherited from English common law and has been influenced by Roman law concepts. The US common law system is characterized by its reliance on court hierarchy, where higher-level courts' decisions are followed by lower courts, and it has evolved to address various areas of law, including torts, contracts, and unique concepts like common-law marriage.
| Characteristics | Values |
|---|---|
| Form of reasoning | Casuistry or case-based reasoning |
| Procedure practiced in common law courts | Adversarial system |
| Purpose | To compensate someone for wrongful acts known as torts |
| Type | Civil cases |
| Modern usage | Law that is independent of statutes |
| Modern usage | Law that is made by judges, not declaratory statutes |
| Governing principle | Stare decisis |
| US common law | Law derived from judicial decisions instead of from statutes |
| Law based on precedent | |
| US legal system | Based on federalism or decentralization |
| US common law marriage | Legal framework that allows couples to be considered married without having formally registered their union as either a civil or religious marriage |
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What You'll Learn
Common law vs civil law
Common law and civil law are two different legal systems with distinct characteristics. Common law, also known as judge-made law or case law, is a legal system that originated in medieval England and is based on judicial precedent and prior court decisions. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. Common law was first institutionalized by Henry II in 1154, creating a unified system of law across the country. It is characterized by its reliance on uncodified case law that arises from judicial decisions and is less prescriptive than civil law.
In contrast, civil law, rooted in the Roman Empire, is a legal system characterized by its reliance on legal codes as the primary source of law. Civil law was comprehensively codified and disseminated in the 19th century, notably with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law judges tend to give less weight to judicial precedent and more weight to the codes that explicitly provide rules for specific disputes. It is generally more prescriptive than common law and places more importance on the terms set out in the contract.
The American legal system, including that of most states, is primarily based on common law, which was in force during the American Revolutionary War. However, it has diverged significantly from English common law and incorporated civil law innovations. Louisiana is the only state whose private civil law is heavily based on French and Spanish codes rather than common law.
Common law and civil law have different approaches to contracts. Common law requires all terms governing the relationship between parties to be set out in the contract, while civil law implies provisions into the contract and allows for ambiguities to be resolved by operation of law. In a common law system, extensive freedom of contract is granted, and few provisions are implied by law.
While common law and civil law have distinct characteristics, there has been a cross-fertilization of ideas between the two systems, and they both share similarities in their divisions of law into property, contract, and tort.
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Common law marriage
In the United States, common law is a term used to describe the body of law that is primarily developed through judicial decisions and precedent rather than statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous decisions. The common law system in the US is largely derived from English common law, which was in force at the time of the American Revolutionary War.
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a type of legal marriage that does not involve a formal wedding ceremony or a marriage license. Instead, it occurs when two legally capable individuals agree to consider themselves married, followed by cohabitation. In states that recognize common-law marriages, these couples have the same rights as those who went through a formal marriage process.
The requirements for common-law marriage vary, but generally include the intention to be married and cohabitation. There is no statutory requirement for the length of time a couple needs to live together, but it is commonly believed that cohabitation for an extended period, such as ten years or more, establishes a common-law marriage. In some cases, legal documents may be required to prove a common-law marriage.
It is important to note that the term "common-law marriage" is often used incorrectly in colloquial or media contexts to describe various types of couple relationships, such as cohabitation or domestic partnerships, that may not be legally recognized as marriages. The use of the term "common-law marriage" to describe these relationships differs from its original legal meaning.
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Common law and torts
The term "common law" is often used in contrast to Roman-derived "civil law". While the fundamental processes and forms of reasoning in the two systems differ, there has been a cross-fertilization of ideas. The common law system is largely based on precedent—judicial rulings made in previous similar cases. The common law of the United States is derived from English common law, which was in force in British America at the time of the American Revolutionary War. However, American common law has since diverged significantly from its English counterpart.
Common law is deeply rooted in stare decisis, which means "to stand by things decided". In common law systems, courts follow precedents established by previous decisions. This creates a predictable and consistent body of law. The type of procedure practised in common law courts is known as the adversarial system.
Torts are civil wrongs, other than breaches of contract, that cause a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. In common law jurisdictions, tort doctrine primarily develops through decisions made by judges addressing private disputes. The law of torts lays out the minimal forms of conduct that people are legally entitled to demand of each other. It identifies a range of wrongs for which one person can claim against another before a court and be awarded a remedy.
Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and criminal prosecution.
In common law jurisdictions, rules regarding civil liability in tort law are established primarily by precedent and theory rather than an exhaustive code. The main remedy available to plaintiffs under tort law is compensation in damages, or money. In some cases, the courts will grant an injunction to prevent a continuing tort or threatened harm.
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Common law and contracts
The United States legal system is based on a system of federalism, or decentralisation. While the national or federal government possesses significant powers, individual states retain powers not specifically enumerated as exclusively federal. Most states have court systems that mirror the federal court system, which consists of trial-level courts, the first level court of appeal, and the final arbiter of law, the Supreme Court.
The term "common law" is often used in contrast to Roman-derived "civil law", with fundamental differences in their processes and forms of reasoning. Common law, as applied in civil cases, was created to compensate someone for wrongful acts known as torts and to develop the body of law recognising and regulating contracts. Common law is deeply rooted in stare decisis, where courts follow precedents established by previous decisions. In modern usage, common law generally refers to law that is independent of statutes and is made by judges.
In the United States, contract law is governed primarily by common law and the Uniform Commercial Code (UCC). Common law applies to transactions concerning real estate, services, employment, and intangible assets, while the UCC covers transactions related to the purchase of goods. The main differences between the two are in the areas of acceptance of an offer, modification of contracts, and the promise to keep an offer open.
At common law, the terms of a purported acceptance must be the "mirror image" of the terms of the offer, and any changes made to the original offer are considered a rejection and a counteroffer. Under the UCC, a definite and seasonable expression of acceptance... operates as" an acceptance, even if it varies the terms of the original offer, as long as it agrees on the subject matter, quantity, and price.
Modification of contracts under common law requires additional consideration, which is not necessary under the UCC. A promise to keep an offer open is an option contract under common law and requires consideration, while under the UCC, this is called a "firm offer" and must be made in writing by a merchant.
The eligibility to sue for breach of contract also differs under the two systems. Privity of contract is required under common law to litigate, but this is not a prerequisite under the UCC. The common law provides for flexible remedies, while the UCC provides for more standardised remedies.
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Common law in the US today
The US common law system is a direct descendant of English common law, which was in force in British America during the American Revolutionary War. However, over time, American common law has evolved independently, with American courts developing their own principles to address the legal issues faced by Americans. This evolution has led to significant differences between the two systems, particularly in areas such as public law, where England lacks a written constitution and restricts judicial review, while all US courts have the power to pass judgment.
At its core, common law is a body of unwritten laws based on legal precedents and case-based reasoning. It is primarily developed through judicial decisions and rulings in previous similar cases, rather than statutes. The presiding judge in a common law court determines which precedents to apply when deciding a new case. This case-based approach, also known as casuistry, is a defining feature of common law, distinguishing it from civil law, which relies more on codified sets of legal statutes created by legislators.
In the US, common law is found at both the state and federal levels, with most common law being made at the state level. Federal common law refers to rules created and applied by federal courts in the absence of controlling federal statutes. State legislatures often codify common law rules from their state courts to give them the permanence of statutes, modify them, or replace them entirely with new legislation. This interplay between common law and statutes is a dynamic feature of the US legal system, with common law sometimes providing the basis for new legislation.
While common law marriage, or non-ceremonial marriage, is not common in the US, a few states continue to recognise it if certain requirements are met. Overall, the impact of common law in the US today is far-reaching, influencing various aspects of American life, from tort law and contract law to the economic consequences of divorce.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is largely based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
Civil law is a comprehensive, codified set of legal statutes created by legislators. Civil law relies less on court precedent and more on codes, which explicitly provide rules of decision for many specific disputes.
A notable US tort is interference with privacy, which includes a stranger using one's photograph for advertising without permission, or taking photographs of persons in embarrassing situations. Another example is the UK's common-law offence of "outraging public decency", which was used to prosecute the intrusive activity of "upskirting".
