Common law is one of the legal systems used across the United States. The system constitutes an unwritten body of laws that are set by the outcomes of previous trials.
Common law in the USA is derived from the system of English common law, that was brought over during colonial times. It is still used today in England as well as in many former territories of the British Empire such as Australia, Canada, India, and New Zealand.
It is sometimes known as case law as future decision-making can be affected by the legal precedent of a specific case outcome. All states except Louisiana, which has a system based on French civil codes, use common law to some extent.
In this article, we explain some of the discrepancies between common law and other types of law. Read on to find out how common law precedents derive their authority and how the system fits in with other important legal codes.
What’s the Difference Between Common Law and Civil Law?
An important difference exists between Common law and the other codes of the statute of your state, known as civil law. Let’s look at how these two systems vary.
Common law is not written and is derived from previous cases. This allows a judge to use legal rulings from older trials to guide them to the correct interpretation of the law. These older rulings are also used continuously until deemed out of date with the current cultural context. After that, they can be superseded by a new legal precedent.
Civil law is the alternative to common law. It constitutes the written rules of law in your state and has the highest legal authority. It remains in effect unless it is removed from use by the state legislature or is replaced by a new law that invalidates it.
In most situations, Common law will be used to decide cases where there is no written law or statute. However, state statutes found within civil law always override common law. This is because common law itself has no statutory basis and can be superseded by the written laws of a state.
Federal Common Law Vs. State Common Law
The majority of common law is used at a state level only. However, common law also exists at a federal level too.
Federal common law works in a similar way to state common law, in that it is based on the outcomes of previous cases and is only used when there is no written law to guide judgment. However, it is only used for the federal court system and only comprises a limited body of precedents.
In comparison, state common law is used far more broadly but is always based on proceedings within the local state court system. These, of course, vary depending on the state you are in.