English Common Law Still in Use in the US
The United States legal system is largely based on English Common Law which settlers and early Americans followed in the colonial period. Common law is a legal system based on judicial precedents and common customs instead of legislative statutes or executive actions taken by a dictator, president or other leader. When determining whether an action is within common law, a judge must look back on previous judicial decisions that took place in the same jurisdiction. The judge’s decision will then become a precedent for future cases.
English Common Law in Current Times
The United States Constitution is the basis of all aspects of the U.S. government including the judicial system. Still, between the Constitution and statutory law, there is a lot of grey area. The courts use common law to maneuver these grey areas while staying within the boundaries set by federal and state statutes.
Today, 49 states are considered common law states. Louisiana, who follows the French civil code, is the one exception. Even in common law states, established statutes are followed before the common law. If there is no statute that dictates a specific case, the judge will follow past precedents set in his or her jurisdiction. Precedents set by higher courts are always considered over those set by lower courts. For example, a state appellate court will look to the state supreme court before considering precedents set in county courts.
It is also important to understand that, because common law is based on previous judicial decisions, common law sometimes varies by jurisdiction. Common law also changes and evolves over time as new precedents are set.
Examples of English Common Law Still Followed Today
Legal author Richard J. Maybury summed up two fundamental common laws that are widely accepted as truth: “Do all you have agreed to do,” and “do not encroach on other persons or their property.” The first common law is used to judge cases in the broad area of contract law. The second law is thought to be the basis for tort and criminal law. Property disputes also commonly fall into the area of common law.
Still, while common law covers a broad spectrum of subject matters, the most familiar example is common law marriage. A common law marriage is a relationship in which a couple cohabitates for a specific period, intends to be married and acts as a married couple. Many states, including Alabama, Colorado and Texas, allow common law marriages. Others, like Michigan, do not recognize these unions. Some states recognize common law marriages on a case-by-case basis, which makes this specific area of law a fantastic example of how common law varies by jurisdiction and changes with time.
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