Common Law System

Common Law System in the United States

Definition and Description of Common Law

A body of principles that derive their authority from court judgments that embrace common customs and usages. Common law consists of all such principles that do not have their origin in statute or legislative mandate. Common law is a peculiarly English institution because it preserves and promulgates principles of law based on judicial decisions rather than on rules resulting from legislative enactments. Common law is judge-made law as distinct from statutory and Administrative Law (see). The tradition of common law evolved in large part because the English legal profession strongly resisted the establishment of a statutory system. Students of the law in England were trained more in the pragmatic applications of the law than they were in documentary systems of law enforcement.

The legal profession was not so much interested in anticipating the adjudication of infractions of statute as it was in maintaining the precedent-setting value of actual controversies settled. This reliance on the value of precedent is perhaps the greatest legacy of the English common law system. Judges were placed in the position of either following the established precedent or distinguishing it. In either case, they became the arbiters of the existing law. No decision was made unless an actual dispute existed. Much that was fundamental to common law was recorded only in the opinions rendered by judges. (1) See more detailed information about the concept of common law here.

Principal Legal Systems

The two principal legal systems in the world today are those of civil law and common law. Continental Europe, Latin America, most of Africa and many Central European and Asian nations are part of the civil law system; the United States, along with England and other countries once part of the British Empire, belong to the common law system.

The civil law system has its roots in ancient Roman law, updated in the 6th century A.D. by the Emperor Justinian and adapted in later times by French and German jurists.

The common law system began developing in England almost a millennium ago. By the time England’s Parliament was established, its royal judges had already begun basing their decisions on customary law “common” to the realm. A body of decisions was accumulating. Able lawyers assisted the process. On the European continent, Justinian’s resurrected law-books and the legal system of the Catholic Church played critical roles in harmonizing a thousand local laws. England, in the midst of constructing a flexible legal system of its own, was less influenced by these sources. It never embraced the sentiment of the French Revolution that the power of judges should be curbed, that they should be strictly limited to applying the law such as the legislature might declare.

Thus, British colonists in America were steeped in this tradition. Indeed, among the grievances enumerated in the American Declaration of Independence were that the English king had deprived the colonists of the rights of Englishmen, that he had made colonial judges “dependent on his will alone for the tenure of their offices” and that he had denied the people “the benefits of Trial by Jury.”

After the American Revolution, English common law was enthusiastically embraced by the newly independent American states. In the more than 200 years since that time, the common law in America has seen many changes — economic, political and social — and has become a system distinctive both in its techniques and its style of adjudication. (2)

“Judge-made” Law

It is often said that the common law system consists of unwritten “judge-made” law while the civil law system is composed of written codes. For the most part, law in the United States today is “made” by the legislative branch. To some extent, however, the judge-made law analogy is true.

Historically, much law in the American common law system has been created by judicial decisions, especially in such important areas as the law of property, contracts and torts — what in civil law countries would be known as “private delicts.” Civil law countries, in contrast, have adopted comprehensive civil codes covering such topics as persons, things, obligations and inheritance, as well as penal codes, codes of procedure and codes covering such matters as commercial law.

But it would be incorrect to say that common law is unwritten law. The judicial decisions that have interpreted the law have, in fact, been written and have always been accessible. From the earliest times — Magna Carta is a good example — there has been “legislation,” what in civil law systems would be called “enacted law.” In the United States, this includes constitutions (both federal and state) as well as enactments by Congress and state legislatures.

In addition, at both the federal and state levels, much law has in fact been codified. At the federal level, for example, there is an internal revenue code. State legislatures have adopted uniform codes in such areas as penal and commercial law. There are also uniform rules of civil and criminal procedure which, although typically adopted by the highest courts of the federal and state systems, are ultimately ratified by the legislatures. Still, it must be noted that many statutes and rules simply codify the results reached by common or “case” law. Judicial decisions interpreting constitutions and legislative enactments also become sources of the law themselves, so in the end the basic perception that the American system is one of judge-made law remains valid.

At the same time, not all law in civil law countries is codified in the sense that it is organized into a comprehensive organic, whole statement of the law on a given subject. Sometimes individual statutes are enacted to deal with specific issues without being codified. These simply exist alongside the more comprehensive civil or penal codes of the system. And while decisions of the higher courts in a civil law jurisdiction may not have the binding force of law in succeeding cases (as they do in a common law system), the fact is that in many civil law countries lower courts tend to follow the decisions of higher courts in the system because of their persuasive argumentation. Nevertheless, a judge in the civil law system is not legally bound by the previous decision of a higher court in an identical or similar case and is quite free to ignore the decision altogether. (3)

The Concept of Precedent

In the United States, judicial decisions do have the force of law and must be respected by the public, by lawyers and of course, by the courts themselves. This is what is signified by the “concept of precedent,” as expressed in the Latin phrase stare decisis — “let it [the decision] stand.” The decisions of a higher court in the same jurisdiction as a lower court must be respected in the same or similar cases decided by the lower court. See more detailed information about the concept of precedent here.

An Organized Law

Where does one go to find the law in America? It might be supposed that with both enacted law and judicial decisions comprising the law, the search would be difficult. But the task in fact is relatively easy. Even though much American law is not codified, it still has been systematized and organized by subject matter. Legal encyclopedias and treatises written by learned professors and practitioners set out the law in logical sequence, typically providing historical perspectives as well. These books of authority contain references to the principles and specific rules of law in a given branch of law, as well as citations to relevant statutes and judicial decisions. Accessing statutes in “codebooks” and cases in bound volumes called court reports, and nowadays accessing both by computer, is a relatively straightforward undertaking.

But it also bears noting that in the common law system, treatise writers do not have the same importance that they do in the civil law system. In civil law countries, such authorities are often considered sources of law, looked to for the development of the doctrine relative to a given subject matter. Their statements are given considerable weight by civil law judges. In the United States, in contrast, doctrine developed by treatise writers lacks binding force, although it may be cited for its persuasive effect. (4)

Concept of Common Law System

In the U.S., in the context of Judiciary power and branch, Common Law System has the following meaning: A common law system is a legal system founded not on laws made by legislatures but on judge-made laws, which in turn are based on custom, culture, habit, and previous judicial decisions. The United States (except Louisiana) borrowed and built on the English common law system. Though much of what was originally common law has been converted to statutory laws made by legislatures, the common law tradition, based upon precedent and embodied in case law, is still the foundation of the American legal system. Under a common law system, when a court decides and reports its decision concerning a particular case, the case becomes part of the body of law and is used as a precedent in later cases involving similar matters. (Source of this definition of Common Law System : University of Texas)

Common Law System

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See Also

  • Judiciary Power
  • Judiciary Branch

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Notes and References

  1. Definition of Common Law from the American Law Dictionary, 1991, California
  2. Judge Peter J. Messitte, USIS, Issues of Democracy, September 1999
  3. Id.
  4. Id.

Common Law System in the International Business Landscape

Definition of Common Law System in the context of U.S. international business and public trade policy: A system of law based on tradition, precedent, and custom. When law courts interpret common law, they do so with regard to these characteristics.

Common Law System: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Common Law System. This part provides references, in relation to Common Law System, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Common Law System by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Common Law System and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Common Law System or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Common Law System and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Common Law System. Finding these decisions can be challenging. In many cases, researchers about Common Law System should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Common Law System when formerly requested by a designated government officer):

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