Its well known that the U.S. is a common law country, but I'm not sure if that's codified anywhere (like the U.S. constitution) or if just happened organically because that's the way its always been. Is there anywhere officially establishing common law in the U.S., or is common law a precedent in and of itself?
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2Codifying that a country operates under common law strikes me as a contradiction in terms.– MarkAug 14, 2018 at 1:29
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1Maybe a better way of asking the question is, when a federal Judge has to look at previous rulings on similar cases, how does he know he must do that? Just tradition? Or is there a rule somewhere that says he must? And if there is a rule, how is it legally enforced throughout the US? Does it flow down from the constitution or some other means?– defaultAug 14, 2018 at 14:30
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2 Answers
Generally a precident. The original 13 states were all using English Common law prior to the the Revolution, and as a good number of the people who ran the United States were used to this system it pretty much just was. Most states that were added to the U.S. after the 13 were either territories formed from existing states, or territories that established and decided to adopt common law as law of the land. In so far as I can find, only two states, Louisiana and Califorina, had to change systems in some way. LA uses civil law for third party procedures and retains common law for just about everything else. California retained the California Code from it's Spanish Law origins, but is fully Common Law. California Code laws are subject to Common law judicial changes.
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Interesting. When you say "had to change systems", how does that work? Do they formally write down anywhere how the system works, or does everyone just intuitively know how its going to work?– defaultAug 13, 2018 at 17:54
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1@pauld: It seems like there was some law or state constitution that was written expressly saying that they would operate on Common Law. CA is a bit more easier for me to track down, as there were a few judicial rulings that put the civil codes into common law compliance (some judge said they were). I don't pretend I know anything about LA other than it's a confusing mess to someone used to only Common Law.– hszmvAug 13, 2018 at 18:21
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1Louisiana and Puerto Rico both have historical common law systems. In California and other states in the U.S. Southwest that were previously part of Mexico, the residual civil law issues are largely confined to property rights. Florida has retained almost none of its historical civil law jurisprudence. Aug 13, 2018 at 21:44
To say that the United States is a "common law" country is a descriptive term, rather than one that is mandated by a statute.
But, the U.S. Constitution is interpreted in light of the legal understanding and meaning of words of the founders as of 1789 (the body of the U.S. Constitution) or 1791 (when the Bill of Rights was adopted) or at the time that later amendments were adopted.
For example, when the courts determine what is meant by a jury trial under the 6th and 7th Amendments to the United States Constitution respectively, they interpret that in light of what a "jury trial" meant as of 1791, and incorporate in 7th Amendment jurisprudence the distinction between cases at law (where there was a right to a jury trial at common law) and cases in equity (where there was not a right to a jury trial in 1791 and which the courts have determined that the founders did not intend to create one). So, the issue of whether or not you get a jury trial in federal court (and in most state courts) hinges on case precedents in England and the U.S. colonies from 1791 and earlier.
Many states have statutes that incorporate by reference into the common law precedents of their state courts, all common law precedents of England which were in effect as of July 4, 1776, subject to later revision by the courts of that state in accordance with principles of stare decisis or as subsequently limited or changed by state statutes or federal law.
answered Aug 13, 2018 at 21:42
