Common law tradition and its role in American legal systems

¶ … 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 are equitable and legal remedies? What's the difference?

According to FindLaw.com, a legal remedy means the plaintiff -- after arguing his or her case before the court -- seeks compensation for losses. And if the plaintiff wins the case, the judge typically awards "damages" to the plaintiff to reimburse him or her for injury or loss (FindLaw.com). In equitable claims, the plaintiff is usually asking for "relief" from certain actions; the plaintiff may be asking the court for an "injunction" preventing the party being sued to refrain from "…doing a certain act." A city council may re-zone an area of the city for adult entertainment but the neighbors may bring litigation asking for an equitable claim -- preventing the city from going through with the rezoning. So the difference is: in legal remedies, the court normally awards in the form of monetary compensation; but in equitable claims the court may order someone or a business to cease what it is doing.