What Are Common Law and Civil Law?
To understand whether California is a common law state, it is necessary to define what common law is in the first place. Simply put, common law is a legal system in which case law becomes the primary source of law. It is not necessarily codified (as opposed to civil law); therefore, it relies on judicial opinions to interpret the law and set precedent. Common law is often defined by judicial precedent or case law.
Historically, common law originated from the legal system of medieval England. When settlers came to the United States from England, they brought this common law with them. These settlers were later followed by immigrants from various other countries. As these immigrants settled in various states, they brought their native laws with them. In the case of California, the Spanish and Mexicans brought their own laws, which were based on civil law. Over time, American law became infused with concepts from both civil law and common law. To this day, the concept that the United States is a common law system is often oversimplified to mean that while federal law may be codified, state laws are not.
As mentioned above, common law originates from Great Britain, and many of its concepts are still used today. Under this legal system, judicial rulings are generally binding on future related cases. This essentially means that judges may interpret laws based on the ruling of past cases involving similar issues . This allows the law to evolve as society, technology, and other aspects of life change. However, the clear downside is that there is less clarity prior to new rulings, as rulings can drastically change an interpretation of the law. This also means that while statutes and codes may exist, they are likely to evolve with each situation. Some common-law systems even have rules that allow courts to invalidate any laws that violate the constitution. In England, for example, judges are empowered to invalidate legislation that is deemed incompatible with basic principles of British Constitutional law.
Civil law systems, on the other hand, take a different approach. Specifically, civil law systems are based on codified statutes. For example, in contract disputes or divorce cases in California, lawyers will generally have to look to the California Family Code to know what rules will generally apply and what the outcome will be. While further nuances may exist—based, in part, on different judicial interpretations of those statutes —in general, the result will be the same if the same facts are at issue.
The primary distinction between civil law and common law systems is the fact that laws under civil law systems are typically enacted by the legislative body, and are not generally subject to judicial discretion (as is the case in California). Therefore, while common law systems tend to be more flexible, civil law systems are more predictable.
An Overview of the Legal System in California
California’s legal system is a complex interplay of numerous federal and state statutes and regulations, as well as common law principles and judicial decisions. The state itself is governed by many of the United States Code sections enacted by Congress to legislate on federal matters, in addition to its own California-related laws and codes that regulate everything from business practices and professional conduct to environmental issues and more. The California legal system is attorney-friendly; the most modern interpretive technology of any state court is utilized in California, and it is also the home of one of the largest law schools in the United States at its San Francisco campus. To the north, in San Rafael, the Golden Gate University School of law is also one of the oldest law schools in the United States. While California is not entirely a common law state per se, it is influenced heavily by its common law roots; the Spanish, English and Mexican legal systems which preceded the establishment of the California state constitution (Siino, 2015). California is a hybrid of two legal systems: civil law and common law (Jensen, 1986). There are mixed opinions on whether California’s legal system is a civil or common law system. However, both civil and common law systems come from the Roman law tradition and lawyers in California are adept at working within both the civil and common law frameworks, when applicable (Harris, 2019). According to the Legal Research Series (2014) by the University of Florida, "the California legal system is a mixture of common law and civil law principles and spans the full spectrum of the continuum between strictly codified law and vague, general principles." It is the common law components of the California legal system which are most helpful for legal and legislative research at a practitioner level and where the most noticeable influence of the common law on current California legislation is apparent (University of Florida, 2014).
Common Law Marriage in California
In countries with a common law tradition, common law marriage is a marriage without a formal ceremony or license. In California, however, there is no such thing as a common law marriage, and couples cannot enter into a common law marriage. There are two exceptions to this: If the parties married in another state where common law marriages are recognized, and then moved to California, their marriage will still be valid in California. Also, if parties entered into a common law marriage in another state and then later became residents of California, the common law marriage is recognized in California so long as neither spouse marries someone else.
The failure of a couple in California to achieve a formal legal marriage does not mean that they do not have any legal rights towards each other, or towards their children. California has a procedure for granting domestic partnership. If an unmarried couple wants to enjoy similar rights as if they were legally married, they can register for domestic partnership in California. Registered Domestic Partners receive the same legal benefits, protections and federal responsibilities as registered spouses. The parties must share a residence in California, be adult persons, and agree to be jointly responsible for each other’s basic living expenses during the domestic partnership. Domestic partners may adopt a child together, and either of them may adopt a child of the other. However, a registered domestic partner does not have the same rights as a divorced spouse to spousal support, except when there are children and the application is made while the domestic partnership has ended.
Unlike domestic partnership, cohabitation (i.e. living together) does not bring the same legal rights and protection. Cohabitation is not sufficient to create a common law marriage in California. If a couple is only cohabiting, there is no presumption that they are married.
The California legislature has passed Family Code Section 2640.5., which imposes a duty on physicians and health care facilities to make reasonable efforts to give notice regarding domestic partnerships to the patients’ adult children, parents and siblings. Under Family Code Section 8610, a party to a domestic partnership who transfers property under a written instrument on the condition that it will take effect on the death of the transferor must sign a document that evidences that the transferor’s death was the triggering event and file it with the court.
How California Courts Work on Precedent
The concept of precedent is fundamental to the structure of the legal system in California. When courts resolve disputes, their rulings do not just apply to the parties at hand; the decisions form case law that can be relied upon in future litigation. In other words, precedent is the use of past cases to inform judicial decision-making in current and future cases.
Like many legal principles, precedent is most closely associated with the common law. The common law is the body of law that is developed through judicial opinions, as opposed to statutes created by legislatures and regulations promulgated by state agencies. In California, judges are authorized to establish rules of common law to fill in gaps in statutory law.
Rather than relegating their work and that of future courts to the application of established rules, precedent allows judges to apply common law principles as necessary in a given case. When judges do so, however, they must create a record of their reasoning. This record includes the legal principles that informed the judge’s decision as well as how those principles were applied to the facts in the specific case, and it becomes case law that judges in the lower courts should apply and rely upon in future cases. But as with many areas of the law, there are many exceptions to the rule.
Not all judicial decisions form case law. Only published opinions and unpublished opinions that courts permit to be cited may be used as precedent. Published cases are published in the official California Reports or in unofficial reporters. Unpublished opinions are usually only published on the websites of the Courts of Appeal.
Common Law Versus Statutory Law in California
The interaction between statute law and common law in California is a complex and evolving dynamic. While the Constitution of California asserts the supremacy of statutory law over common law, the reality of practice on the ground is more complicated.
Statutes are laws enacted by the legislative branches of government, either federal or state. In California, statutes are passed by the legislature and signed into law by the governor. The California Constitution and the California Civil Code list a few exceptions where common law takes precedence over statute. Generally, however, all enacted statutes have supremacy over common law in California. Statutory law is subject to judicial interpretation and may be understood differently by different courts. Statutory law provides a framework for society that is distinct from common law.
Statutory law can create, modify or eliminate common law rights as well as creating new rights and imposing new duties. For example, statutes routinely adjust the common law of torts and remedies. "All of the statutes relating to tort law are expressed to be declaratory of what the law was before their enactment." Many statutes in California have been enacted to change the common law for some particular need of the state.
One significant area of California statutory law that has replaced common law in many areas is family law, a field historically comprised largely of common law principles. "The Family Code itself is based on the premise that it is declaratory of existing law , so that its provisions ‘merely express the existing law in a clearer form and with such changes of language as are necessary to remove ambiguities.’"
Statutory law is created by the legislative process. The Legislature meets for two years, beginning on the first Monday after January 1 every even-numbered year. At any time in the two years, a bill may be introduced, with deadlines for committee action and final passage. If the bill passes, it is sent to the Governor, who may veto it or sign it into law. Legislative sessions are never limited to one subject matter. Several thousand bills may be introduced in a single session, of which approximately 1,000 or so may pass into law.
Legislative committees review bills proposed and affect numerous changes in the language, structure, and intent of bills. The Assembly and Senate each has its own standing committees to which bills are sent for review and hearings.
The California Constitution provides that no legislation may be enacted outside of the "session laws" – prior statutes – and that new provisions may not take effect until January 1 of the year following enactment if they do not specifically state the date on which they will take effect. This means that a statute will not take effect until the year after the two-year Legislature session in which it passed ends.
California statutory law also includes regulations enacted by California administrative agencies. Regulations made by state agencies have the same force and effect as statutes passed by the Legislature. Some regulations are made under authority granted by the Governor and are known as Governors regulations.
How Federal Common Law Affects California
Is California a Common Law State? Understanding its Legal Framework
The Impact of Federal Common Law on California
Federal common law, while not as powerful as state law, can still exert a significant influence over California – and depending on the area of specialty, counsel must keep federal common law in mind at all times. An example of this involves the law of evidence. The Federal Rules of Evidence broadly apply in federal courts, and these rules have been adopted by the United States District Court for the Central District of California. In state court, on the other hand, California’s Evidence Code applies. However, in certain circumstances, federal law preempts state law, and thus federal rules apply in state courts as well. For example, evidence related to federal patent infringement disputes is governed by federal law, even if the case is heard in state court. Another example is the Uniform Commercial Code (UCC), which has been adopted in full or in part by California and many other states. Though the UCC is a state law (bear in mind that California law is superior to federal law under these circumstances), it is based upon and modeled after the U.S. Commercial Code, which was drafted by the American Law Institute and the National Conference of Commissioners. Indeed, the UCC has its roots in federal law more broadly, as the original English common law influenced U.S. federal law, which in turn informed the development and adoption of the UCC. Because some federal laws preempt state laws, California counsel navigating the legal system must be cognizant not merely of California law, but also federal law governing the same areas. Indeed, as a recipient of federal funds, the Golden State is subject to certain federal laws that limit its powers and expose it to liability.
Wrap-Up: Is California a Common Law State?
California has a unique legal system that is a product of its history and cultural influences. The state legal system is distinct from the legal systems of other U.S. states because of its Spanish and Mexican heritage, in addition to the influence of the Gold Rush miners’ code of justice in the 19th century. For instance, the California Constitution outlines the structure of the state government, the electorate’s power to initiate legislation and constitutional amendments, and the common law system. Moreover, the California Rules of Court provides additional procedural rules for state courts and the California Civil Code, Penal Code, Vehicle Code, and other codes contain substantive and procedural provisions that supplement the Constitution.
While the state constitution and codes provide a framework for the common law system in California, this does not mean that California is a pure common law state. As discussed above, the state constitution and codes are built upon the common law principles, which may be considered the foundation of the California legal system. As a result, California certainly does not fit the definition of a civil law state; however , it may not fit the federal definition of a common law state either. California’s legal system is at the intersection of both the common and civil law systems. The state incorporates and relies on common law principles and sources of law similar to other common law states. These common law principles and case law guide the state in interpreting the constitution, codes, and other laws.
In conclusion, California is not a pure common law state, nor is it a pure civil law state. The state contains aspects of both systems, even though it may fit into neither category according to the definitions discussed above. In spite of this distinction, California is not alone in trying to define its legal system. Much of the world, including the European Union, often faces the problem of classifying countries’ legal systems into either common or civil systems. In fact, Canadian law continues to evolve on whether the country is a common law jurisdiction, a civil law jurisdiction, or both. Just like in Canada, California has determined that it has adopted common law principles and build upon them with subsequent provisions. This is arguably what makes California a common law state with civil law influences, if a label needs to be affixed to their legal system.