Anyone looking to practice law in the US will participate in the common law system. The system is based on Anglo-American law, also practiced in one way or another in the United Kingdom, Canada, and most states that are members of the Commonwealth.
In the US, it became the source of law during the 17th and 18th centuries as a further developed form of British common law traditions.
So, what is common law exactly, and how does it work in practice?
Common Law Definition
Common law isn’t a set of formal statutes like you would find in Roman law, for example. Instead, it’s based on court-established legal precedents. Verdicts given by public juries and judicial authorities are institutionalized and serve as a foundation for any future court decisions in similar cases.
It’s also referred to as case law, as it’s the law created by judges for decisions on individual cases or disputes.
Legal precedent, also known as “stare decisis,” represents the history of judicial decisions which can be used in future cases. Common law refers to a detailed record of previous court cases, especially when no formal statute can be applied to a particular circumstance. It’s up to the presiding judge to resolve which precedents are relevant for a given case.
The US judicial system consists of higher and lower courts. Any legal precedent set by the higher court, such as federal courts, is legally binding for any cases that go through lower courts. In this manner, universal legal rules are established across the US justice system, whether you are in Kansas, Texas, Montana, South Carolina, New Hampshire, or anywhere else.
Even so, lower courts have the authority to depart from precedents if the judge finds them outdated or not applicable to the current case. A lower common law court can also, on rare occasions, overturn an established precedent.
Common Law vs. Civil Law
Unlike common law, civil law is a set of established and systematized legal statutes put together by legislators. The civil law system details what type of cases can be brought to court, how each claim is handled, court procedure, and the scope of the punishment for each offense.
Civil law is frequently updated to keep up with cases that may not fit the current legislature. Standardization focuses on establishing an unbiased system and avoiding having laws applied differently on a case-by-case basis.
However, civil law has some downsides: If no established statute relates to a case, the court has less authority to act. A judge in a civil law court doesn’t rely as much on a judicial precedent. They can interpret the statute less predictably than a judge in the common law court.
Solutions from cases with institutionalized interpretations and opinions by public juries and other judicial authorities define common law. The goal of common law is also to provide consistency in how courts handle offenses and create an interpretation standard. In the United States, all states practice common law except Louisiana, whose courts also incorporate elements of civil code from France and Spain.
Judges and Lawyers in Civil and Common Law
The two law systems have different court proceedings. A civil law judge has something of an investigative role, unlike a judge in a common law court. A civil law judge brings charges, discerns facts from witness examinations, and applies solutions found in the law based on what they learned.
In civil proceedings, lawyers still represent their client’s interests, but their role isn’t as essential as in a common law system. However, they still fulfill advisory roles, familiarize their clients with the points of the law, and prepare court materials.
Unlike common law proceedings, civil courts don’t emphasize oral arguments or in-court presentations. Furthermore, legal tasks that don’t require litigation (e.g., drafting a will or contract) can be delegated to other legal professionals that are not licensed to appear and practice law before a court.
In a state or federal common law jurisdiction, the judge is a referee, with more leeway for making judgments than in the civil law system. Here, lawyers are charged with presenting their client’s case to the judge and jury. For example, a criminal justice lawyer’s job is to examine witnesses in front of the court and argue either the innocence or guilt of the charged individual.
A licensed lawyer plays a significant role in any dispute in a common law system. Depending on the country, they may also complete different tasks outside of the courtroom; in the US, many of these tasks are handled by paralegals.
Types of Case Law
Common (or case) law can be categorized into three general types, and these are:
- Pure decisional case law
- Case law based on constitutional provisions
- Case law based on statutory provisions
With pure decisional case law, a court ruling is based on prior judicial precedents and policies, including fundamental fairness. There are no applicable constitutional provisions or statutes.
In constitution-based case law, the court decides if a statute or action taken by the government is consistent with the state (or federal) constitution.
When handling case law based on statutory provisions, courts can use previous cases to analyze how to interpret a statute.
Common Law Marriage
Common law marriage in the US has existed since 1877. Currently, it may seem a bit outdated, but it’s fully recognized in ten states, the District of Columbia, and another five states with certain restrictions.
Common law marriage isn’t based on legal statutes but rather on public policy and case law. Couples don’t need to purchase a marriage license or hold a ceremony.
Common law defines that if a couple lives together for a specific amount of time (varied by state) and holds itself out to its community as married, it can be considered so. In other words, you and your spouse do not have to go through legal channels to get a marriage license to be considered a married couple for the purposes of inheritance and other potential legal issues.
Most states have several essential requirements for recognizing a common law marriage:
- A couple has to live together for a time determined by the state
- Both must be at least 18 years old (in most states)
- Both must be of sound mind
- Neither can be already married to someone
- Both have to intend to be married
- Both have to hold themselves out as married, including but not limited to taking the same last name, having joint bank accounts, or referring to each other as “husband,” “wife,” etc.
Marginalization and Disempowerment
When a common law judge presents a case to the jury, they determine what precedents apply to it and make a decision based on that. It’s not surprising to see how, historically, common law tradition based on local customs marginalized and deprived some communities.
In short: biased and antiquated decisions shape future rulings until significant societal changes make the judicial body overturn the precedent. The system makes it harder for marginalized communities to get just or favorable court rulings until civil legislation or social sentiment changes the way common law and rights are interpreted.
The feminist movement has been facing such difficulties in the last two centuries, in the US and Europe alike. In England, for example, the common law on divorce gave child custody to fathers until the late 1970s.
This common law interpretation was a bias that effectively made women stay in marriages despite any extraneous circumstances so as not to lose access to their children.
Examples of Common Law
While specific circumstances vary by case, judges look for crucial elements that make the current case similar to previously processed common law cases. This decision by the judge has to be disclosed and presented in writing.
Some common law examples regulate doctor-patient confidentiality, common copyright law, and common law marriage.