In most countries, you’ll find either a common law system or a civil law system. These systems play a key role in how laws are created, interpreted, and enforced, ultimately shaping the judicial process in each country. Legal professionals, individuals, and organizations dealing with international transactions need to have a clear idea of the differences between these legal systems.
We will explore the foundations of common law, how it came into being, what its characteristics are, and how it is distinguished from civil law. It is intended for a broad range of audiences, whether you are a professional lawyer, an academic, a student, or just someone who wants to know about other countries’ legal systems.
What is Common Law?
In countries such as the United States, Canada, and Australia, can refer to the common law as case law and judge-made law which first originated in England and have been practiced. Common law is based on the practice of precedent, which differs from civil law, which is centered on codes of law and statute law. When making decisions, judges look at how other judges have decided cases that were similar in the past. As a result, the law shifts to fit the circumstances and society as it progresses.
Key Features of Common Law
Case Law: Judges make decisions based on what has previously been decided.
Evolution: The law may change and grow as new decisions and cases come about.
Litigation Directed: Prior judgment directs the judge that interprets the law and makes. New decision based on the previous one.
How is common law different from civil law?
The two primary and widely used legal systems are common and civil law. The distinction is that case law and precedents are used in common law systems, while in civil law systems, they are based on codes and articles. It should be noted that between the two, the common law developed first in England and civil law came into existence in Europe.
It encompasses a specific set of details, such as rules of the legal processes and punishments for crimes. Within civil law traditions, legal decisions are not applicable in other instances, even when the circumstances are close, which is the case with common law systems.
Is the U.S. a Common Law or Civil Law Country?
Several countries, like the United States of America, apply common law legal systems, as U.S. laws were founded on English common law. Each state in the United States, except Louisiana, is under a common law jurisdiction. French colonization imparted a civil law system to Louisiana, which was in effect before the state’s purchase in the early 1800s. In the same line, Puerto Rico operates a civil law system that is derived from that of Spain. The United States, with the exclusion of Puerto Rico and Louisiana, can therefore be regarded as a nation that applies common law.
Nonetheless, a state in the United States wholly practices common law. A great deal of common law indeed exists in the US legal system, and so is the case for other regulations that are part of legislation in the US.
One feature in common law of the United States is stare decisis, which holds that the interpretation of the statute by a court is subject to any previous ruling on any case involving that same statute by any other court. This is a major difference from civil law systems, where judges’ decisions are not binding in future cases involving different parties.
Key Benefits of a Common Law System
While both common law and civil law institutions possess shortcomings and advantages, common law has several central advantages:
Stability and Consistency
One of the major advantages of the common law system is that there are a good number of cases that have been previously decided in the past, the bias of the one deciding the case is more or less reduced, and an outcome is highly probable.
Efficiency
Since judges use the previous decisions as a guide, court cases are most of the time short and less costly.
Adaptability
Common law has the benefit of overlooking that which ordinary legislative authorities would have never foreseen but which courts would have found able to apply common law to the new realities.
Flexibility
Since society shapes the common law, it is more flexible. Higher courts do not have to wait for the legislature to amend the law and can simply outmode decisions, as is the case with civil law.
Common Law Marriage
A non-ceremonial marriage, also known as a common law marriage, is a legal union that two partners can enter into by simply living together without registering their marriage in any formal manner. In the United States and a few other countries, states allow common-law marriages if some prerequisites are fulfilled, including the following:
- Colorado
- Iowa
- Kansas
- Montana
- New Hampshire
- South Carolina
- Texas
However, several states, like Alabama, have recently abolished common-law marriage.
The Impact of Precedents on Marginalized Groups in Common Law
Judges often rely on historical decisions and legal interpretations to decide on similar cases. This can result in the idiosyncratic treatment of certain groups and communities. Outdated or inaccurate rulings may then carry on affecting future rulings until society revolts for reforms. This makes it difficult for oppressed communities to receive a fair hearing unless there is a change in public opinion or the law shifts the way the common law is used.
For example, women were made to go against far more aggressive common law prejudices during the world wars between the nineteenth and the end of the first half of the twentieth century. Even in England until about the 1970s, the rule of common law made sure that with divorce, children stay with fathers and not mothers. Such measures kept women from escaping their husbands.
Conclusion
Common law is a legal system that is based on case law and judicial decisions to provide stability, consistency, and evolution. In contrast to legal systems that are based on written codes and statutes, such as civil law, common law develops from the rulings of the past and most recent cases, making it effective in changing circumstances.
Whilst both systems have their advantages and drawbacks, with common law, where reliance on past decisions is a primary factor, it is sometimes likely for some rulings to be obsolete, which in itself might be disadvantageous for certain groups of people. It is rather fundamental, if not mandatory, to differentiate common law and civil law to respond to legal systems and the manners in which laws are construed and enforced.
