Keith Mack
Common law is a body of law based on custom and general principles embodied in case law, serving as precedent and applied to situations not covered by statute. It is largely traced back to England and the English common law that originated in the early Middle Ages in the King's Court (Curia Regis). The English common law was further developed after the Norman Conquest of 1066, evolving into the type of legal system now found in the United States and other common law countries. In the U.S., the adoption of common law can be attributed to the influence of the first English colonists who claimed the common law system as their birthright. After the American Revolution, common law was adopted by each of the states and the national government.
| Characteristics | Values |
|---|---|
| Origin of Common Law in the USA | England |
| Basis of Common Law | Custom and general principles |
| Sources of Common Law | Common law principles of England, equity principles, Christianity, ecclesiastical courts, and more |
| Application of Common Law | Civil cases |
| Binding Nature of Common Law | Depends on the jurisdiction and nature of the court |
| Influence on Other Legal Systems | Influenced by and influenced the legal systems of other common law countries |
| Modern Usage of Common Law | Made by judges, not declaratory statutes |
| Adoption by New States | Express provision or judicial decision |
| Role of Precedent | Important, but not always binding |
| Examples of Common Law in the USA | Uniform Commercial Code (UCC) |
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What You'll Learn
Influence of English common law
The influence of English common law in the US dates back to the early middle ages when it originated in the King's Court (Curia Regis) in England. The first English colonists brought the common law system with them, claiming it as their birthright. After the American Revolution, each of the states and the national government adopted this common law.
English common law forms the basis of the US legal system, with many fundamental principles of injury law or "tort law" originating from England. The US criminal justice system, for example, is founded on the presumption of innocence, which is also a key principle in the English legal system. Additionally, the US and England share the same evidentiary standard for civil trials, which is preponderance of the evidence.
In the area of divorce law, while most common-law countries follow the English model that allows judges discretion in reallocating property and income, some American states have adopted the principle of equal division of assets. Another difference is in libel law, where US practice is less strict than England's, as public figures cannot sue for honest but unfair and untrue criticisms.
The US courts, however, are not bound by English common law and can look to the decisions of other states in the Union or their own precedents when interpreting common law. The US legal system has evolved independently, and the legal approaches of common-law countries can differ significantly over time.
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The role of Christianity
Christianity has played a significant role in the adoption and development of common law in the United States. It is considered one of the origins of common law in the country, along with English common law principles, equity principles, and ecclesiastical courts.
Since the earliest British North American settlements, Christianity and the Bible have had a profound influence on American jurisprudence, reflecting its broader impact on Western legal traditions. This influence was particularly strong during the colonial era, especially in the Puritan commonwealths of New England. Early colonial laws were heavily influenced by biblical sources, including Mosaic law as interpreted within the theological traditions of the colonists. Christianity also contributed to the evolving constitutional traditions in the colonies and, later, the newly independent states, ultimately influencing the framing of the U.S. Constitution in 1787.
The Bible's influence can be seen in both broad principles and specific provisions within the U.S. Constitution. For example, the separation of powers to check the abuse of government powers can be traced to Christian principles. Additionally, Article III, § 3 of the Constitution requires that convictions for treason be supported by "the testimony of two witnesses to the same overt act", which echoes Deuteronomy 19:15 from the Mosaic law.
However, the influence of Christianity on American law began to face challenges as secularism and rationalism gained ground. Church-state separationists, secularists, and rationalists increasingly questioned the role of Christianity in law, leading to controversies surrounding Sunday mails, blasphemy laws, and the invocation of the Bible as a judicial authority. Despite these disputes, Christianity remained a dominant cultural force well into the nineteenth century.
In summary, while Christianity has had a significant influence on the adoption and development of common law in the United States, particularly during the colonial era and the formation of the Constitution, its influence has been contested and gradually balanced by secular and rationalist ideals.
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Ecclesiastical law adoption
Common law in the United States originated in England and was adopted by the country's first English colonists, who claimed it as their birthright. After the American Revolution, common law was adopted by each of the states as well as the national government. When new states were formed, they also adopted the common law system either by an express provision or by a judicial decision.
The common law of the US has its roots in various sources, including the common law principles of England, equity principles, Christianity, and ecclesiastical courts. Ecclesiastical law refers to the internal laws and operational policies that govern the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and individual national churches within the Anglican Communion. Canon law, which is a type of ecclesiastical law, is the system of religious laws and legal principles made and enforced by the hierarchical authorities of the Catholic Church to regulate its external organization and government. It is the oldest continuously functioning legal system in the West.
There is a difference in opinion about the adoption of ecclesiastical laws in the US. On one hand, since ecclesiastical courts were not established in the US, the code of laws enforced in these courts cannot be considered part of the common law. On the other hand, the canon and civil laws administered by ecclesiastical courts are considered part of the unwritten laws of England, which are adopted and used in certain jurisdictions. It is argued that such laws must be used in the US if the tribunal has jurisdiction, especially if the rule of the ecclesiastical court is considered better law than that in the common law court.
The influence of canon law can be seen in the development of both modern civil law and common law. For example, in the English legal system, criminals could apply for the benefit of clergy, allowing them to be tried by ecclesiastical rather than secular courts. While the scope of clerical benefit was reduced over time, it still occurred in South Carolina as late as 1855.
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Precedent and case law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law based on custom and general principles embodied in case law, which serves as precedent and is applied to situations not covered by statute. Common law includes principles, usages, and rules of action relevant to the government and security of persons and property, which do not derive their authority from express legislative declarations.
The common law system in the US evolved from English common law, which originated in the early Middle Ages in the King's Court (Curia Regis). The first English colonists brought the common law system with them, and after the American Revolution, common law was adopted by each of the states and the national government. When new states were formed, they also adopted the common law system, either expressly or by judicial decision.
The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. A precedent, known as stare decisis, is a history of judicial decisions that form the evaluation basis for future cases. Once judges began to regard each other's decisions as binding precedent, the pre-Norman system of local customs and laws that varied by locality was replaced by a system common throughout the country, hence the name "common law".
In common law systems, precedents are maintained over time through court records and are historically documented in collections of case law referred to as yearbooks and law reports. The example set by higher courts is binding on cases tried in lower courts. Lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different. However, the preservation of outdated or biased precedents can lead to the unfair marginalization or disempowerment of certain groups.
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Post-independence adoption
The common law system in the United States was adopted from English common law, which originated in the early Middle Ages in the King's Court (Curia Regis). The first English colonists brought the common law system with them, claiming it as their birthright. After the American Revolution, each of the states and the national government adopted this common law.
The common law system in England has directly influenced that of the US, with the former serving as a reference point for the latter's courts. However, US courts are not bound to follow English common law court decisions, whether they occurred before or after the American Revolution. The US legal system has also been influenced by various sources, including equity principles, Christianity, and ecclesiastical courts.
The common law in the US is based on custom and general principles derived from case law, which serves as precedent and is applied to situations not covered by statute. It includes rules and principles applicable to the government and security of persons and property, which are not dependent on legislative enactments. The Uniform Commercial Code (UCC), a codified framework governing commercial law, has been enacted in all 50 states and other US territories, demonstrating the continued evolution of American common law.
The US common law system stands in contrast to the civil law system prevalent in continental Europe and other parts of the world. While common law systems emphasise precedent, civil law judges give less weight to judicial precedent. For example, French civil law expressly forbids judges from pronouncing general principles of law, and they do not have the authority to invalidate legislative provisions.
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Frequently asked questions
Common law in the USA can be traced back to English common law, which originated in the early Middle Ages in the King's Court (Curia Regis).
Common law is a body of law based on custom and general principles embodied in case law, which serves as precedent and is applied to situations not covered by statute.
The common law has its roots in the USA with the first English colonists who claimed the common law system as their birthright. After the American Revolution, common law was adopted by each of the states as well as the national government.
An example of common law is the rule known as stare decisis, or precedent, where a judge is bound to follow the decision of an earlier judge if the two cases have similar facts.
The sources of common law in the USA include English common law, equity principles, Christianity, and ecclesiastical courts.
