Gavin Howe
The United States is one of several countries that have adopted the common law system, which originated in England during the Middle Ages. The common law system is based on judicial precedent rather than statutes, allowing for case-by-case evolution. In the US, the common law of England was adopted as the general law of the state, except in Louisiana, which follows the civil code. Over time, the legal systems rooted in English common law have diverged significantly, leading to notable differences between the legal approaches of common-law countries like the US and England.
| Characteristics | Values |
|---|---|
| Country of origin | England |
| Type of legal system | Common law |
| Basis | Judicial precedent, not statutory laws |
| Current usage | In all states except Louisiana |
| Federal common law | Limited to federal issues not addressed by a statute |
| State common law | Comes from state courts, mostly related to property, contracts, and torts |
| Historical usage | Used contemporary English cases until the mid-19th century |
| Current relationship with English law | Many legal differences, described as "two countries separated by a common law" |
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What You'll Learn
The US and England are 'two countries separated by a common law'
The US and England are two countries separated—or perhaps united—by a common law. The common law system as we know it started in England during the Middle Ages, and the US, along with several other countries, continues to rely heavily on common law when resolving legal disputes.
The common law system is defined by its reliance on caselaw and legal precedent to guide decisions, rather than codes and statutes. The form of reasoning used in common law is known as casuistry or case-based reasoning. In the past, American courts often cited contemporary English cases, but over time, American courts developed their own principles to resolve legal problems unique to the American people.
Common law systems trace their history to English common law, while civil law systems trace their history to Roman law. The primary contrast between the two systems is the role of written decisions and precedent as a source of law, which is one of the defining features of common law legal systems. Common law countries are increasingly adopting codes similar to civil law systems in areas such as bankruptcy, intellectual property, antitrust, and tax law.
Despite their shared history, the legal systems of England and the US have diverged significantly over time. One of the most striking differences is in public law. England has no written constitution and restricts judicial review, whereas every court in the US has the power to pass judgment on the conformity of legislation and official actions to constitutional norms. Another notable difference is in divorce law. While most common-law countries follow the English model, which permits judges to use their own discretion in reallocating the property and income of spouses, some American states adhere to the principle of equal division of assets.
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The US legal system is based on federalism
The Tenth Amendment reserves powers to the states, as long as those powers are not delegated to the federal government. These reserved powers include creating school systems, overseeing state courts, creating public safety systems, managing business and trade within the state, and managing local governments. Concurrent powers refer to powers shared by both the federal and state governments, including the power to tax, build roads, and create lower courts.
The US legal system is also based on common law, which can be traced back to England during the Middle Ages. Common law is a "body of law" based on court decisions rather than codes or statutes. At the centre of common law is the principle of stare decisis, which means that courts and judges must follow earlier decisions and rulings when dealing with similar cases. While American courts rarely follow English post-Revolution precedents, they did often cite contemporary English cases before American appellate decisions became regularly reported in the mid-19th century.
Common law is usually contrasted with the civil law system, 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 outlining everything from procedures for handling claims to punishments for offences.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Common law is based on precedent, or stare decisis
The United States and most Commonwealth countries are heirs to the common-law legal tradition of English law. The common law system as we know it started in England during the Middle Ages. Even today, several countries around the world, including the U.S., Canada, India, and Australia, continue to rely heavily on common law when resolving their legal disputes.
Common law is usually contrasted with the civil law system, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries including Egypt. Civil law systems rely primarily on codes and statutes. Common law systems, on the other hand, rely on caselaw and legal precedent to guide their decisions. The type of procedure practiced in common law courts is known as the adversarial system, which is also a development of common law.
At the center of common law is a legal principle known as stare decisis, a Latin phrase that roughly means "to stand by things decided". In practice, stare decisis is just a way of saying that courts and judges need to follow earlier decisions and rulings, or caselaw, when dealing with similar cases. Stare decisis may be simple at its core, but there are nuances and limits in the way it is applied. For example, vertical stare decisis—the idea that the decisions of higher courts take precedence over the decisions of lower courts—is deeply entrenched in the American legal system. This idea is part of what makes the Supreme Court "supreme". By contrast, horizontal stare decisis holds that prior decisions made by courts at a particular appellate level (such as a federal court of appeals) should provide some precedent for cases heard by courts of the same appellate level.
The stare decisis concept lessens the need for subsequent litigation and further saves the time and energy of the judiciary by preventing it from having to continually decide the same legal question or issue if it has already been decided in another case. It is frequently observed that there is a high potential for bias and arbitrary decision-making when it comes to legal matters. The doctrine of stare decisis forbids judges from acting arbitrarily or biasedly by requiring them to follow existing precedents, thus preventing such unwelcome and vicious factors from interfering with fair and reasonable adjudication.
American courts, even after the Revolution, often cited contemporary English cases because appellate decisions from many American courts were not regularly reported until the mid-19th century. Citations to English decisions gradually disappeared during the 19th century as American courts developed their own principles to resolve legal problems.
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Common law is judge-made law, or case law
The US common-law system is rooted in English common law, which spread to North America during the colonial period in the 17th and 18th centuries.
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, common law is judge-made law. Judges are required to interpret the law and apply the same principles as previous judges in cases with similar facts. This interpretation of the law is known as case-based reasoning or casuistry.
The common law system, as we know it, started in England during the Middle Ages. In 1154, King Henry II created a unified system of law "common" to the country, ending local control and variations in the law. Henry II also developed the practice of sending judges to hear disputes throughout the country, and these judges would return to London to discuss their cases and decisions with other judges. Over time, a rule known as stare decisis or precedent developed, and judges were bound to follow the decisions of earlier judges in similar cases.
Common law is often 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 clear rules for how judges need to rule in specific disputes. Common law, on the other hand, relies on judicial decisions and precedent to guide court rulings. While common law is based on precedent, judges do have the power to resolve issues and establish new precedents in cases of first impression with no previous precedent or legislative guidance.
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Common law is distinct from civil law
The US inherited its common law legal system from England, where the system originated in the Middle Ages.
Common law and civil law are distinct from each other. Common law systems rely on caselaw and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Common law is based on the concept of stare decisis, or precedent, where judges are bound to follow the decisions of earlier judges in cases with similar facts. This creates consistency and stability in the legal system. Common law is adaptable and flexible, as it can respond to changes in society without requiring lawmakers to pass changes in statutes and codes.
Civil law, on the other hand, is based on a comprehensive code of statutes that outline the procedures for handling claims and the punishments for offences. Civil law provides clear rules for judges to follow in specific disputes. In civil law systems, prior court decisions are not binding in future cases, even if the facts are similar. Civil law has its roots in ancient Rome, with the Code of Justinian based on Roman civil law. Civil law was further developed by the Napoleonic Code, which traced its origins to the Corpus Juris Civilis of Roman law.
Today, common law is used in many countries that were formerly under English rule, including the US, Canada, India, and Australia. Civil law, meanwhile, is used in much of continental Europe, Mexico, most of Central and South America, and some African countries, including Egypt and the Francophone countries of North and West Africa.
While the US is primarily a common law country, it has also adopted some elements of civil law. For example, the Uniform Commercial Code (UCC) has been enacted in all 50 states and governs various aspects of commercial law. Similarly, Puerto Rico, a US territory, has a civil law system based on the Spanish civil code due to its history as a Spanish colony.
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Frequently asked questions
The common law system in the US originated in England during the Middle Ages.
The defining principle of common law is stare decisis, which means that courts and judges need to follow the decisions and rulings of higher-level courts within the same jurisdiction when dealing with similar cases.
Common law relies on judicial precedent and previous court decisions, while civil law relies on codes and statutes enacted by legislative bodies. Civil law provides more uniformity and predictability, while common law allows for case-by-case evolution.
The US legal system is based on federalism, with power shared between the national "federal" government and individual states. Common law in the US has evolved to differ significantly from its English counterpart, with notable differences in public law.
