¶ … law tradition -- followed by most Western nations and others as well -- was originated in England during the Middle Ages, according to the School of Law at the University of California at Berkeley. While the common law tradition became part of civil law in England, it was carried across the Atlantic by the first European settlers in the New World. Generally speaking the common law concept is based on precedent, and the precedent set in England in the Middle Ages and carried through to today -- when referring to common law marriage -- is that after a couple has cohabitated for a certain number of years, they are to be considered legally married. In other words, common law (which entails far more than just marriage issues) is based on custom, or on precedent, rather than civil or ecclesiastical law.
Common Law -- What is it?
The School of Law at Berkeley explains that English civil law emerged in different ways and patterns from other countries in Europe "…for a number of different reasons" (law.berkeley.edu). In the first place, during the Middle Ages Kings made laws by decree, but those decrees were so "rigid" that in order to serve justice, another system was established, called the court of equity (also called the court of Chancery). In time, the two courts (the King's and the court of Chancery) functioned separately, and only by 17th century, "…did common law triumph over other laws" (law.berkeley.edu). That happened when the English Parliament "established a permanent check on the power of the English King and claimed the right to define the common law and declare other laws subsidiary to it" (law.berkeley.edu). In England common law led to legislative decisions, and generally speaking common law is not "codified." On the other hand, civil law was and is codified. In other words, common law does not have a "comprehensive compilation of legal rules and statutes" while civil law has numerous rules and statutes.
What are the sources of American law?
The Berkeley Law school article explains that the American legal system "…remains firmly within the common law tradition," which, as explained earlier, was brought from England. In California, the state has a civil code that is broken into components that "…echo traditional Roman civil law" that relates to actions and individuals; however, within the law codes of California (and Louisiana as well) common law can be found as the basis for those codes (law.berkeley.edu).
What is the importance of precedent to the judicial decision-making process?
An example of how common law crept into civil law (through precedent) in the United States, the Berkeley article mentions the 1925 Supreme Court case, United States v. Robbins. In that case the concept of "community property" was first adjudicated by the High Court, and the decision was rendered based on precedent from the "…legal customs of Visigothic Spain," which dates all the way back to the fifth century CE (law-berkeley.edu). So California inherited its current law on community property based not on English common law, but on precedents going back thousands of years.
What are equitable and legal remedies? What's the difference?
You’re 77% through this paper. Sign up to read the full paper.
Sign Up Now — Instant Access Already a member? Log inAlways verify citation format against your institution’s current style guide requirements.