Key Takeaways

  • Common law is based on judicial precedent rather than statutory laws, making it adaptable to evolving social and economic contexts.
  • The common law system originated in England and has been widely adopted, including in the U.S., except for Louisiana, which follows the civil code.
  • Judicial decisions play a crucial role in shaping common law, particularly in areas such as property, contracts, and torts.
  • Common law differs from civil law, which relies primarily on codified statutes.
  • The doctrine of stare decisis ensures consistency in legal rulings by requiring courts to follow established precedents.
  • Common law evolves over time, meaning legal interpretations and rulings may change as new cases are adjudicated.
  • Federal common law applies in limited circumstances and is displaced by congressional legislation when applicable.
  • Businesses and individuals should be aware of common law principles in their respective jurisdictions, as legal rules may vary by state.
  • For assistance with legal matters under common law, individuals and businesses can seek qualified attorneys through UpCounsel.

Three Definitions of Common Law

  • That which derives its force and authority from the universal consent and immemorial practice of the people. The system of jurisprudence that originated in England and which was latter adopted in the U.S. that is based on precedent instead of statutory laws.
  • Traditional law of an area or region; also known as case law. The law created by judges when deciding individual disputes or cases. The body of law which includes both the unwritten law of England and the statutes passed before the settlement of the United States.
  • In Old England there were two types of Courts - law and equity. In the law court the Judge applied statutes. As time went on situations that were not covered by statutes were uncovered and Judges 'created' law, usually in equity. This is 'common law.'

Common Law vs. Civil Law

Common law and civil law are two predominant legal systems used worldwide. Common law is primarily based on judicial decisions and precedents, whereas civil law relies on codified statutes enacted by legislative bodies.

Key differences include:

  • Precedent vs. Statutes: Common law evolves through court rulings, while civil law follows comprehensive legal codes.
  • Judicial Discretion: Common law judges interpret past rulings, whereas civil law judges apply statutes strictly.
  • Flexibility: Common law allows for case-by-case evolution, whereas civil law provides more uniformity and predictability.

Countries like the United States, United Kingdom, Canada, and Australia use common law, while nations such as France, Germany, and Japan adhere to civil law systems​.

Common Law in the United States

The U.S. is a common law country. In all states except Louisiana (which is based on the French civil code), the common law of England was adopted as the general law of the state, EXCEPT when a statute provides otherwise. Common law has no statutory basis; judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. Broad areas of the law, most notably relating to property, contracts and torts are traditionally part of the common law. These areas of the law are mostly within the jurisdiction of the states and thus state courts are the primary source of common law. Thus, 'common law' is used to fill in gaps. Common law changes over time, and at this time, each state has its own common law on many topics. The area of federal common law is primarily limited to federal issues that have not been addressed by a statute.

Even if federal common law otherwise would operate, it is displaced when Congress has decided the matter. See, e.g., Central Bank v. First Interstate Bank of Denver, N.A., 114 S.Ct. 1439, 1448 (1994) (holding that the conclusion that Congress did not intend to impose aiding and abetting liability under section 10(b) of the Securities and Exchange Act 'resolve[d] the case' notwithstanding the acknowledged power of the federal courts, with respect to the section 10(b) actions, to fashion federal common law that 'attempt[s] to infer `how . . . Congress would have addressed the issue,'' (quoting Musick, Peeler & Garrett v. Employers Ins. of Wausau, 113 S.Ct. 2085, 2090 (1993).

How Precedent Shapes Common Law

Common law relies on stare decisis, meaning courts follow previously established rulings when deciding cases. This doctrine ensures legal consistency while allowing adaptation over time. However, courts can overturn precedents if they become outdated or misaligned with societal values​.

Examples of common law principles include:

  • Contract law: Implied contracts, enforceable agreements even without written documentation.
  • Tort law: The principle of negligence, allowing individuals to sue for damages caused by others' failure to exercise reasonable care.
  • Property law: Adverse possession, where individuals can gain legal ownership of land after openly occupying it for a statutory period.

Federal vs. State Common Law

While each state has its own common law traditions, the role of federal common law is limited. It applies primarily to:

  • Interstate disputes where state laws conflict.
  • Federal government interests, such as foreign relations and maritime law.
  • Specific areas like securities fraud and antitrust regulations.

However, when Congress enacts legislation covering a legal area, federal common law is overridden​.

Frequently Asked Questions

  1. How does common law differ from statutory law?
    Common law is based on judicial precedent, whereas statutory law consists of laws enacted by legislatures. Judges in common law systems interpret past rulings, while statutory law is applied based on written legal codes.
  2. What is an example of common law in action?
    A famous example is Roe v. Wade (1973), where the U.S. Supreme Court established a precedent for reproductive rights. However, in 2022, Dobbs v. Jackson Women's Health Organization overturned this precedent, demonstrating how common law can evolve.
  3. Does common law apply in every U.S. state?
    Yes, except Louisiana, which follows the Napoleonic Code (civil law tradition). All other states base their legal systems on common law principles.
  4. Can common law change over time?
    Yes. As courts interpret new cases and societal norms shift, legal precedents evolve, making common law adaptable to modern challenges.
  5. Where can I get legal help regarding common law?
    You can consult a qualified attorney on UpCounsel, where experienced lawyers assist with legal matters under common law.

If you need help with understanding common law, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.