What Is Common Law?

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 What Is Common Law?

Common law refers to legal frameworks created by judicial decisions and court judgments. We refer to these judgments as “case law.” These are in contrast to other legal systems, such as civil law, which rely primarily on laws and regulations created by the legislative system.

The majority of the legal ideas and procedures of the United States are derived from case law, making it a common-law nation. But the American legal system does incorporate some elements of civil law, particularly in terms of how the courts operate procedurally (such as deadlines and sentencing guidelines).

Recognizing Common Law

A precedent, also referred to as stare decisis, is a body of prior judicial decisions used to evaluate similar instances in the future. Because there is no official legal system that can be applied to a particular case at hand, common law, also known as case law, relies on thorough records of comparable circumstances and statutes.

The precedents that apply in a certain case are decided by the judge sitting over it. Cases heard in lower courts must follow the example set by higher courts. This structure encourages consistency and stability in the American judicial system. Lower courts may, however, decide to change or depart from precedents if they are out of date or if the current case differs significantly from the previous case.

Although lower courts have the option to reject the precedent, this rarely happens.

Which Elements of American Law Involve Common Law/Statutory Law?

The distinction between common law and statutory law is significant in the following areas of law:

  • Law of contracts (i.e., contracts case law versus the Uniform Commercial Code)
  • Criminal laws
  • Family law, particularly as it relates to common law marriage
  • Legal trademarks
  • Law on personal injury

Many of the legal definitions for broad, all-encompassing tort concepts, such as negligence and strict responsibility, in the context of personal damage, are provided by common law. Some extremely specific legal ideas, such as the notion of a “zone of danger” in an emotional distress claim, have also developed in U.S. tort common law.

What Are the Main Distinctions Between Civil Statute Law and Common Law?

Civil law statutes can frequently be drafted, passed, and updated more swiftly than criminal law statutes, which is one of their key distinctions. This is because their approval frequently depends completely on the legislative procedure. In contrast, common law typically develops more gradually since court decisions can take months or even years to be made.

Common law is frequently a great resource for background information on legal theories and defenses.

Additionally, case law enables attorneys to make analogies or similarities between their current court case and earlier instances (i.e., precedent). Contrarily, civil law statutes are frequently quite effective in governing law areas that don’t require many legal studies, such as filing deadlines, automatic sentencing recommendations, damage caps, and regulation of health and safety standards.

Either common law principles or statutory codes may be applicable, depending on the circumstances and the country. Both may apply in some circumstances.

Common Law Marriage

A common law marriage, commonly referred to as a non-ceremonial marriage, is a legal framework that can let spouses be regarded as married even when their union hasn’t been legally recorded as a civil or religious marriage.

While common law marriages are uncommon in the United States, they are permitted in some states if the parties meet specific conditions:

  • Colorado
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • South Carolina
  • Texas

A few states recently repealed their laws permitting common-law marriage, including Alabama.

According to common law, a couple is deemed to be married if they cohabitate for a predetermined period of time (which varies by state) and present themselves as such to their community. In other words, you and your spouse are considered a married pair for the purposes of inheritance and other potential legal concerns without having to go through the formalities of getting a marriage license.

A common law marriage must meet many prerequisites in the majority of states to be recognized:

  • A couple is required by law to cohabitate for a period of time.
  • Both must be older than 18 years of age (in most states)
  • Both must be mentally stable.
  • Neither of them may be wed to someone else already.
  • Both parties must want to get married.
  • Both parties must present themselves as married, which may entail adopting the same last name, opening joint bank accounts, or using terms like “husband” and “wife,” among other things.

Particular Considerations

Judges can have a big impact on the standards that a jury will use to evaluate a case as they present the precedents that relate to it. Common law customs have historically resulted in the wrongful marginalization or disempowerment of particular populations. Until cultural changes force a legal body to reject the precedent, previous rulings, regardless of how skewed or obsolete, continue to influence future decisions.

This structure makes it challenging for marginalized parties to get favorable decisions until common law interpretation is altered by public opinion or civil legislation. Such challenges were frequently confronted by feminists who advocated for women’s rights in the late 19th and early 20th centuries. For instance, common law in England until the 1970s believed that fathers—rather than mothers—were entitled to custody of the children when couples separated, a bias that, in reality, kept women stuck in marriages.

Typical Common Law

The common law has occasionally served as the inspiration for brand-new pieces of legislation. For instance, “outraging public decency” is a common-law offense in the United Kingdom. In the past ten years, law enforcement has used this antiquated common law to prosecute a new intrusive practice called upskirting, which involves sneaking a camera between someone’s legs without their knowledge or consent in order to take pictures or videos of their privates for sex or to embarrass or distress them.

The Voyeurism (Offences) Act, which can result in up to two years in prison and the prospect of putting a convicted person on the sex offenders registry, was officially approved by the U.K. Parliament in February 2019.

Discrimination and Empowerment

A common law judge decides which precedents apply to a case before presenting it to the jury, then bases their conclusion on those precedents. It is not unexpected to notice how some communities have traditionally been excluded and underprivileged due to common law traditions based on regional conventions.

In other words, unless significant societal changes force the judiciary to reject the precedent, prejudiced and outdated decisions influence future decisions. Until civil legislation or public opinion alters how common law and rights are interpreted, the system makes it more difficult for marginalized people to get just or favorable court decisions.

In the previous 200 years, the feminist movement has encountered these challenges in both the U.S. and Europe. Fathers were granted custody of their children under English common law until the late 1970s, for instance.

In order to maintain access to their children, this bias in common law interpretation effectively forced women to stay in marriages, notwithstanding any extenuating circumstances.

Do I Need Legal Counsel to Handle My Legal Issues?

Sometimes it’s hard to grasp how the common law system functions. Common law systems are frequently very complex, and it can be challenging to determine which rules apply in a particular situation. An attorney may be necessary to assist you with any personal injury legislation. Additionally, if you have to appear in court, your attorney can also represent you there.

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