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The Sources of U.S. Law:
Differentiating between
Common and Civil Law
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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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<<< CONTINUED
FROM PAGE 1 <<<
Civil Law: A Trend Toward Statutes
Although every modern society has both laws and
means to enforce/apply those laws to particular legal issues and disputes,
most societies do not use a common law
system such as that described above. In Europe, for example, most countries other than the U.K. prioritize the use of civil law, or law that has
been codified into statutes, ordinances, regulations, etc. Thus, in a civil
law country such as Germany or France, a judge hearing a particular case does not look to
the transcript or judicial opinion of a previous case to find the operable
rule of law, but rather seeks out a relevant legislative or administrative
statute to find the explicit text governing the point in question. Because of
this, civil law countries adopt more
statutes in the first instance than do common law societies, putting to paper
a wide array of laws on everything from criminal offenses to the rules
related to real property found within their borders.
Given these two basic forms of laws, one might
wonder: Which category does the U.S. fall into today? The truth is that although, as
described above, the U.S.’s laws were, in the nation’s inception, firmly
rooted in the common law, during the past century, and particularly during
the past fifty years, the American legal system has begun to resemble that of
civil law countries to a much greater and increasing extent. Whereas 100
years ago, almost all state laws were to be found in judicial opinions, and
not explicitly laid out by Congress or the state legislatures via statutes
and regulations, today, the states have codified everything from criminal law
to basic rules regarding contract formation.
The Uniform Commercial Code (U.C.C.) is an example of a situation in which
a legal area that was previously left to the common law of each state rules governing the sale of goods and other
commercial matters has been codified
in a systematic, uniform fashion by almost every state. Although the common
law continues to play an important role not only in filling in the
gaps where modern statutes have not yet displaced the ‘judge made law, the
common law is also incorporated into many judicial opinions concerning issues
that are of a primarily civil law nature. In this sense,
the common law helps to explain (and sometimes expand upon) statutory law.
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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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