Gavin Howe
The United States is a common law country, except for the state of Louisiana, which follows a civil code. Common law is a legal system based on judicial precedent rather than statutes. It is primarily based on judicial decisions and precedents, while civil law relies on codified statutes enacted by legislative bodies. The common law system originated in England and has been widely adopted, particularly in countries that were formerly colonized by England, Great Britain, or the United Kingdom. The US, as a common law country, inherited the principle of stare decisis, which means that courts follow the decisions of higher-level courts within the same jurisdiction, creating a predictable and consistent body of law.
| Characteristics | Values |
|---|---|
| Type of legal system | Common law |
| Basis of legal system | Judicial precedent, not statutory laws |
| Sources of law | Case law, judge-made law, or common law |
| Federalism | Decentralized, with states retaining powers not specifically enumerated as exclusively federal |
| Court hierarchy | Three-tiered structure with District Courts, Court of Appeals, and Supreme Court at the top |
| Stare decisis | Yes |
| Influence of English common law | Inherited principle of stare decisis, but does not follow English post-Revolution precedents |
| Influence on other countries | Influenced Canada, India, and countries in Africa, such as Ghana, Kenya, and Nigeria |
| Influence by other countries | Influenced by European law and has adopted codes in areas such as bankruptcy, intellectual property, and tax law |
| Exception within the US | Louisiana follows the French civil code |
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What You'll Learn
The US is a mixed legal system, not purely common law
The US is often regarded as a common law jurisdiction, but it is more accurately described as a mixed legal system. This is because, while most US states have adopted the common law of England as the general law of the state, Louisiana is the exception. Louisiana's legal system is based on the French civil code, with some Spanish influence.
The common law system, which originated in England, is based on judicial precedent rather than statutory laws. This means that judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. Common law is adaptable to evolving social and economic contexts, as it evolves through court rulings and changes over time.
In contrast, civil law systems, such as the one in Louisiana, rely on codified statutes enacted by legislative bodies. These systems provide more uniformity and predictability, as judges apply statutes strictly. Louisiana's civil code has been amended numerous times and remains the only such code in the US.
The US legal system is further complicated by federalism, or decentralization. While the national or "federal" government possesses significant powers, individual states retain powers not specifically enumerated as exclusively federal. This means that, in addition to federal laws, US citizens are subject to state laws, and sometimes even local laws, depending on their location and behavior.
Additionally, the US legal system has adopted some codes similar to those in civil law systems. For example, the Uniform Commercial Code (UCC) is a codified framework governing various aspects of commercial law that has been enacted in all 50 states with some local variations.
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Common law is based on precedent, not statute
The US is a common law country, except for Louisiana, which follows a civil code. Common law is based on precedent, not statute. It is a legal system that originated in England and has been widely adopted, including in the US. It is defined by the requirement that courts follow the decisions of higher-level courts within the same jurisdiction. This is known as the doctrine of stare decisis, which ensures consistency in legal rulings by requiring courts to follow established precedents.
Common law is primarily based on judicial decisions and precedents, while civil law relies on codified statutes enacted by legislative bodies. Common law is adaptable to evolving social and economic contexts due to its basis in precedent. It evolves through court rulings and judicial interpretation of past rulings, allowing for case-by-case evolution. Common law is also referred to as "judge-made" law or case law. Judicial determinations in previous court cases are critical to the resolution of new cases, even when a statute is at issue.
Broad areas of law, such as property, contracts, and torts, are traditionally part of common law. Torts encompass a wide range of wrongs that humans can inflict upon each other, including intentional torts and torts caused by negligence. Common law also recognizes and regulates contracts. In the US, the Uniform Commercial Code (UCC) is an example of a codified framework within the context of common law, governing various aspects of commercial law.
Common law is prevalent in countries with a history of colonization by England, Great Britain, or the United Kingdom, such as Australia, Canada, India, and many Commonwealth countries. The US Supreme Court has had a significant influence on other common-law countries, particularly in the area of individual rights.
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The US inherited common law from England
The common law system originated in England and has been widely adopted, including in the US. All US states except Louisiana have enacted "reception statutes", which state that the common law of England (particularly judge-made law) is the law of the state unless it conflicts with domestic law or indigenous conditions. Louisiana is an exception as it follows the civil code, with roots in French and Spanish law.
The US legal system is considered a mix of common law and civil law. Common law was brought to the US by English settlers, and it is based on the principle of stare decisis, which means "let the decision stand". In common law systems, case law, as opposed to legislation, is the primary means of expression of general law.
The US and most Commonwealth countries are heirs to the common law legal tradition of English law. The common law system has been adopted in countries colonized by England, Great Britain, or the United Kingdom, including the US, Canada, Australia, India, and many others. This system allows for case-by-case evolution, providing flexibility and adaptability to changing social and economic contexts.
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Common law is used in civil cases, not criminal
The US is a common law country, except for the state of Louisiana, which follows a civil code. Common law is a legal system based on judicial precedent rather than statutes. It is primarily based on judicial decisions and precedents, and judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. The defining principle of common law is stare decisis, which means "to stand by things decided". In other words, courts and judges need to follow earlier decisions and rulings when dealing with similar cases later.
Common law, on the other hand, is used in civil cases to compensate someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence. It is also used to develop the body of law recognizing and regulating contracts. Common law is based on case-based reasoning, and judges rely on detailed records of similar situations and statutes since there is no official legal code that can be applied to a case.
The use of common law in civil cases promotes stability and consistency in the US legal justice system. It allows for case-by-case evolution, flexibility, and adaptability to evolving social and economic contexts. However, it is important to note that common law is not used in criminal cases, which follow a different procedure involving prosecutors and adjudicators.
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Common law is adaptable to evolving contexts
The US is a common law country, except for the state of Louisiana, which follows a civil code. Common law is based on the principle of stare decisis, or "let the decision stand". It is adaptable to evolving contexts because it relies on judicial precedent rather than statutory laws. This means that common law evolves through court rulings, with judges interpreting past rulings and applying them to new cases. This is in contrast to civil law, which relies on codified statutes and provides more uniformity and predictability.
Common law originated in England and was adopted by the US and most Commonwealth countries. It is a flexible system that allows for case-by-case evolution and is based on the idea of casuistry or case-based reasoning. It is used primarily in civil cases to compensate someone for wrongful acts, known as torts, and to develop the body of law recognizing and regulating contracts. Common law is also used in criminal cases, where it overlaps with criminal law in areas such as tort law.
The adaptability of common law is further demonstrated by the increasing adoption of codes in common law countries, similar to those used in civil law systems. For example, the Uniform Commercial Code (UCC) has been enacted in all 50 states and is a codified framework governing various aspects of commercial law. This convergence between common law and civil law principles shows how common law is adaptable and capable of evolving to meet new contexts and challenges.
The US Supreme Court has also played a significant role in shaping the common law in the country. Through its power of judicial review, the US Supreme Court has created new individual rights and struck down legislation as unconstitutional. This has had a profound influence on other common law countries, with some shifting from the British to the American model, particularly in the area of individual rights.
The common law system in the US and other English-speaking countries is based on scattered shareholding, deep and transparent financial markets, and relatively autonomous boards and managers. This system is in contrast to the large-shareholder-dominated, civil code systems of continental Europe and Asia. The relative merits of these different systems are still debated by scholars, with each having its own advantages and disadvantages.
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Frequently asked questions
The US is a common law country because it adopted the common law of England as the general law of the state.
The defining principle of common law is stare decisis, which means that "decisions of higher-level courts within the same jurisdiction" are followed by lower courts.
Common law is based on judicial precedent and decisions, whereas civil law relies on codified statutes enacted by legislative bodies. Common law is more adaptable to evolving social and economic contexts, while civil law provides more uniformity and predictability.
Louisiana is the only state in the US that follows civil law, based on the French civil code. Puerto Rico also has a partial exception to common law.
Other common law countries include the UK, Canada, Australia, India, and several countries in Africa, such as Ghana, Kenya, and Nigeria.
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