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The Sources of U.S. Law:

Differentiating between

Common and Civil Law

NOTE:  This article is intended to be a brief summary of law only, parts of which may or MAY NOT be applicable to your situation and/or your local jurisdiction(s).  Any information you glean from this article DOES NOT constitute legal advice and should be supplemented with the advice of an attorney licensed to practice law in your locality.

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In order to understand the many intertwining laws impacting upon modern business and real estate sales transactions, it’s useful to first look to the past to understand the sources of those laws. In the United States, one can essentially speak of three sources, or types, of law.

U.S. and State Constitutional Law

The most general, and as a consequence fundamental and preeminent, source of law in the U.S. is the U.S. Constitution. Constitutional law is the bare bones of America’s legal structure, within and around which structure every other organ and system of law in the country resides, grows and changes. Constitutional law very much can, and often does, play a role in virtually every type of legal discourse impacting Americans every day, from seemingly innocuous issues, such as how high of a fee a court can charge in landlord tenant disputes, to more publicized legal battles such as the current debate surrounding the constitutional validity of the Patriot Act. However, for persons seeking to understand the laws applicable to most business or real estate sales transactions, constitutional law is a more latent and less immediate concern. Although at its creation, the U.S. Constitution, and the constitutions propagated by each State, respectively, set the framework for all of the laws to follow, two other types of law are of more immediate importance here: the common law and civil law.

U.S. Common Law:  A Legacy of America’s Colonial Past

Following independence from Great Britain, the former U.S. colonies did not simply cast off each and every rule of law they had inherited from the English Empire. Quite the contrary. Just as the vast majority of the original thirteen colonies laws - civil, criminal, property, admiralty, etc. - were very similar if not identical to the analogous laws prevailing in England at the time, so too did the vast majority of the States laws reflect British law following Independence. This is, in part, because the English Common Law system developed over the years in a very organic fashion, being created and molded over time not so much Kings, Prime Ministers, legislators, etc., but rather by the judges hearing the cases for which the law was being used. Rather than seeking to codify, or place into “black-letter statute form most of the laws governing its citizens, the English Common Law countries relied on judges to, in effect, become the protectors of the law.   Thus, a strong majority of England’s early laws were not written down into any statute, but rather were passed down via habit and word of mouth from court to court and from year to year in an effort to retain continuity. Inevitably, such laws also gradually evolved from year-to-year, case-to-case in order to account for new legal and factual circumstances.

Naturally, under a common law system, it is important that the law’s evolution not get too far out of hand lest judges feel totally unconstrained in the degree to which they can/should change or even create laws. If controls on such so-called “judicial activism” are not in place, judges would, in effect, become legislators in their own right. The principle of stari decisis was developed to remedy this inherent problem. Under stari decisis, judges have been tasked with following the laws developed by previous decisions (and previous courts, judges) relevant to each case before them. Of course, eventually, judges began writing their decisions and orders down on paper, and as a consequence it became somewhat easier for judges to adhere to stari decisis.

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See Also:

The Statute of Frauds

Doctrine of Equitable
Conversion

Real Estate Sales
Transaction Overview

Preliminary Matters

v

The Role
of the Attorney

v

Hiring a Real Estate

Agent/Broker

Real Estate Seller’s Agent

Real Estate Buyer’s Agent

Real Estate Broker

v

Negotiating the
Real Estate Contract

‘For Sale By Owner’

Deciding Key Terms

v

Pre-Closing Matters
Inspections

Mortgage Issues

v

The Closing

The Deed

Affidavit of Title
ALTA Statement

 

 

 

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* Licensed to practice law in New York and Illinois.

© Roger Galer, 2004

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