Lex Non Scripta: An Exhaustive Analysis of Common Law and Its Alternative Appellations

Part I: The Nomenclature of a Judicial Tradition

The system of law known as common law, which governs the lives of approximately one-third of the world’s population, is identified by a variety of names.¹

This multiplicity of terms is not a product of semantic confusion but rather a reflection of the system’s multifaceted nature and the rich philosophical and historical debates that have defined its evolution.

Each alternative name—case law, judicial precedent, judge-made law—acts as a distinct lens, focusing on a different essential attribute of the legal tradition: its tangible output, its guiding mechanism, or its primary author.

To understand these names is to understand the foundational principles of the common law itself.

1.1 The Core Concept: Law Derived from Judicial Decisions

At its most fundamental level, common law is the body of law derived not from a comprehensive legislative code or a written constitution, but from the cumulative effect of judicial decisions rendered in individual cases.¹

It is a system where the law is primarily developed, articulated, and refined through the rulings of judges.³

This stands in stark contrast to statutory law, which is formally written, codified, and enacted by a legislative body such as a parliament or congress.⁴

While common law systems certainly incorporate statutes, their unique character and historical core lie in the principles extracted from the resolutions of specific, real-world disputes.¹

This foundational distinction between law created by judges and law created by legislatures is the central axis around which the entire common law tradition revolves.

It establishes a dynamic interplay, and sometimes a tension, between two sources of legal authority.

The process in a common law jurisdiction requires a lawyer or judge to first ascertain the facts of a dispute, then locate any relevant statutes, and critically, to research the body of prior judicial decisions to extract the principles and analogies that will determine the outcome.¹

This process gives the judiciary a direct and powerful role in the development of legal norms, a role that is conceptually different from that found in other legal traditions.

1.2 The Primary Synonyms: Case Law and Judicial Precedent

The most frequently used alternatives for common law are “case law” and “judicial precedent,” terms that are often employed interchangeably.¹

However, a more nuanced analysis reveals a subtle but significant distinction in their emphasis, highlighting different aspects of the same process.

Case law refers to the law as it has been established in previous court decisions.⁸

It is the entire collection of published judicial opinions—the corpus of precedents and legal authority set by courts over centuries.⁴

When legal professionals speak of researching case law, they are referring to the act of delving into this vast library of decisions, historically documented in yearbooks and reports, to find rulings that illuminate the legal issue at hand.¹⁰

Case law, therefore, represents the tangible, documented product of the common law system—the accumulated wisdom and reasoning of the judiciary, which serves as the primary source material for legal argument and decision-making.⁵

Judicial precedent, or simply “precedent,” refers to the specific legal principle or rule created by a court decision which will then guide or bind future courts in cases with similar issues or facts.¹³

It is the active mechanism that gives case law its force and authority.¹⁵

The common law system is built upon the principle that a specific dispute, once resolved, sets a precedent that should be followed in subsequent, similar disputes to ensure consistency and fairness.¹

Thus, while “case law” is the library, “judicial precedent” is the engine of the common law, the doctrine that compels adherence to past decisions and turns individual judgments into enduring legal rules.

These terms are two sides of the same coin.

A judicial decision in a specific case creates a precedent.

The collective body of these precedents forms the case law, which is the essence of the common law system.¹⁰

1.3 The Provocative Descriptor: Judge-Made Law

Perhaps the most descriptive and philosophically charged synonym for common law is “judge-made law”.¹

This term directly confronts the question of the judiciary’s role in creating, as opposed to merely interpreting, the law.

Its history encapsulates a fundamental shift in legal theory.

The term was famously introduced by the legal philosopher Jeremy Bentham as a critique of the prevailing theory of his time, most associated with the jurist William Blackstone.¹

Blackstone’s “declaratory theory” held that judges did not make new law but merely discovered and “declared” the pre-existing, timeless customs of the realm.

The law, in this view, was a permanent and unchanging entity, and judges were its oracles.¹

Bentham attacked this as a “childish fiction,” arguing that in deciding cases where no clear rule existed, judges were undeniably creating new law, and he pejoratively labeled this process “judge-made law” to expose what he saw as the pretense of the legal profession.¹

Over time, however, the term shed its negative connotations.

As legal realism and positivism gained traction, jurists and scholars came to accept the reality that judges are active participants in the evolution of the law.¹⁸

Lord Reid, a prominent British judge, famously dismissed the declaratory theory as a “fairy tale” that everyone knows is untrue, affirming that judges do, and must, make law.¹⁸

Today, “judge-made law” is a standard, neutral descriptor used in legal discourse to refer to the law developed by courts through judicial decisions.¹⁵

It acknowledges that large and vital areas of the law, particularly in the realms of contract, tort, and property, are primarily the product of judicial creativity and reasoning, evolving incrementally from one case to the next.³

1.4 Historical and Contrastive Terms: Lex Non Scripta and Non-Statutory Law

Two other terms, one historical and one modern, serve to define common law by what it is not.

Historically, particularly in the 19th century, legal dictionaries like Black’s Law Dictionary and Bouvier’s Law Dictionary defined common law as lex non scripta, or “unwritten law”.¹

This term can be misleading in the modern context, as common law is meticulously documented in voluminous written court reports.¹⁰

The original meaning of

lex non scripta was not that the law was unrecorded, but that its authority did not derive from a single, comprehensive, written legislative document or code, as was the case in the civil law tradition derived from Roman law.¹

It was “unwritten” in the sense of being un-codified.

A more precise modern equivalent is “non-statutory law”.¹⁴

This term captures the same essential contrast as

lex non scripta but with greater accuracy.

It clearly distinguishes the body of law that originates from judicial rulings (common law) from the body of law that originates from legislative enactments (statutory law).⁴

In any common law jurisdiction, the total law is a composite of constitutional law, statutory law, regulatory law, and this crucial fourth element: the non-statutory, judge-made common law.¹

Part II: The Bedrock Principles of Common Law

The alternative names for common law allude to a unique operational machinery.

This system functions according to a set of core principles that govern how law is created, applied, and evolved.

These principles, most notably the doctrine of precedent and the adversarial nature of proceedings, dictate the roles of judges, lawyers, and juries, and together they form the living architecture of the common law tradition.

2.1 Stare Decisis et Non Quieta Movere: The Doctrine of Precedent

The foundational principle of the common law is expressed in the Latin maxim stare decisis et non quieta movere, which translates to “to stand by decisions and not disturb the undisturbed”.²²

Commonly shortened to

stare decisis, this doctrine of precedent is the bedrock upon which the entire system is built.¹

It dictates that a court is bound to follow the legal principles established in previous decisions by higher courts when faced with a case presenting similar facts and legal issues.¹

This adherence to precedent is not merely a matter of judicial habit; it is a binding rule that ensures consistency, stability, and predictability in the application of the law.³

The operation of stare decisis is structured by the hierarchy of the court system.

• Binding Precedent: Decisions made by a higher court are binding on all lower courts within the same jurisdiction.³ For example, a decision by the U.S. Supreme Court is binding on all federal and state courts in the United States. Similarly, a ruling by a state’s supreme court is binding on all lower courts within that state.³ This vertical application of precedent ensures legal uniformity.
• Persuasive Precedent: This includes decisions from lower courts, courts in other jurisdictions (e.g., a New York court considering a California case), or judicial statements that were not strictly necessary to the outcome of a case (obiter dicta). Such precedents are not binding, but a court may consider them and be influenced by their reasoning.³

This doctrine, however, contains the seeds of its own evolution.

While it promotes stability, it is not an inescapable command.

A court may depart from precedent in several ways:

• Distinguishing: A judge may find that the material facts of the current case are sufficiently different from the facts of a previous case, making the precedent inapplicable. By distinguishing the case, the judge can apply a different rule or create a new one without directly challenging the existing precedent.²³
• Overruling: In rare circumstances, a higher court may explicitly overrule one of its own prior decisions.³ This is a significant step, typically taken when the court believes the original precedent has become unworkable, is causing injustice, or no longer reflects fundamental societal values.³

This creates a fundamental paradox: stare decisis is both a force for immense stability and the very mechanism that facilitates legal evolution.

The law is stable because it is tethered to the past, but it changes precisely because each new case presents an opportunity to interpret, refine, distinguish, or, in rare instances, overturn that past.

The system’s genius lies in its capacity to maintain a coherent legal framework while adapting incrementally to new social, economic, and technological realities, one case at a time.

This inherent tension between stability and flexibility is the defining characteristic of the common law process.

2.2 The Judge as Law-Shaper: From Interpreter to Creator

The doctrine of precedent logically leads to the central role of the judge as a law-shaper.

In a civil law system, a judge’s primary function is to apply a pre-existing legislative code.

In the common law system, the judge’s function is far more creative, especially in a “case of first impression”—a dispute for which no guiding statute or precedent exists.¹

In such a scenario, the judge is not only permitted but required to resolve the issue, and in doing so, they create new law by establishing a new precedent that will bind future courts.¹

This creative function is not limited to novel situations.

Much of the most fundamental law governing daily life remains predominantly judge-made.¹⁸

The law of obligations—which includes the entire fields of contract law and tort law (the law of civil wrongs, like negligence)—is a testament to the power of judicial law-making.³

Foundational legal concepts, such as a manufacturer’s duty of care to a consumer or the principles of what constitutes a binding contract, were not initially laid down by legislatures but were painstakingly developed by judges over centuries of deciding individual cases.³

This power, however, is not absolute.

The common law judge operates within a system of constraints.

The foremost constraint is the doctrine of stare decisis itself; a judge cannot simply ignore binding precedent.²¹

Furthermore, the judiciary is bound by the separation of powers, recognizing that its role is fundamentally different from that of the legislature.

Judges are generally reluctant to make sweeping changes on matters of broad social or economic policy, viewing such issues as the proper domain of the democratically elected legislature.¹⁸

Finally, the principle of legislative sovereignty means that Parliament or Congress can always override judge-made law by passing a statute.¹⁸

For example, after the California Supreme Court established a new test for classifying workers in the

Dynamex case, the California Legislature responded by passing a statute that codified and expanded upon the court’s ruling, demonstrating the dynamic dialogue between the judicial and legislative branches.²

2.3 The Adversarial System: A Contest of Opposites

The common law tradition functions as an adversarial system, a procedural framework that is a direct consequence of its historical origins.¹¹

The legal process is structured as a contest between two opposing parties, who present their cases before a neutral and passive judge.¹¹

The judge’s role is not to investigate the facts but to moderate the proceedings, ensure procedural rules are followed, and, in the absence of a jury, apply the law to the facts as presented by the parties.

In many serious cases, particularly criminal ones, a jury of ordinary citizens without legal training is responsible for the crucial task of deciding the facts of the case.¹¹

The jury listens to the evidence presented by both sides and delivers a verdict.

The judge then determines the appropriate sentence or legal remedy based on the jury’s factual findings and the applicable law.¹¹

This stands in sharp contrast to the inquisitorial system often associated with civil law jurisdictions.¹¹

In an inquisitorial system, the judge takes a much more active role in the investigation.

They may direct the gathering of evidence, question witnesses, and are central to establishing the facts of the case.²²

The adversarial model’s emphasis on a neutral arbiter reinforces the idea that the law emerges from the clash of arguments presented by the parties themselves, with each side responsible for bringing the relevant precedents and evidence to the court’s attention.

Part III: The Genesis and Historical Trajectory of Common Law

The common law was not the product of a single, rational design but rather the organic, and often haphazard, result of centuries of political consolidation, procedural innovation, and jurisdictional conflict.

Its core features emerged as pragmatic solutions to the specific problems of medieval governance, such as consolidating royal power, resolving land disputes, and generating revenue for the Crown.

Tracing its history from Norman England to its global proliferation reveals how this unique legal system was forged.

3.1 The Norman Conquest and the King’s Court (Curia Regis)

The pivotal moment in the genesis of the common law was the Norman Conquest of England in 1066.¹

Prior to the conquest, Anglo-Saxon England had a patchwork of local legal systems administered by regional folk courts and manorial courts, with customs varying significantly from one part of the country to another.¹

The conquest under William the Conqueror introduced a highly centralized and powerful feudal monarchy.²⁷

This political centralization created the essential institutional framework for a unified legal system to emerge: a single royal court of justice, the King’s Court or

Curia Regis, based at Westminster.²⁸

The law administered by this court came to be called “common” precisely because it was common to the entire kingdom, enforced by the king’s judges and gradually supplanting the diverse local customs.¹

The goal of William and his immediate successors was to consolidate power, and a unified legal system was a powerful tool for achieving that end, ensuring that the king’s authority was felt throughout the realm.¹¹

3.2 Henry II: The Architect of the System

While the Norman Conquest laid the foundation, it was the reign of King Henry II (1154-1189) that is widely considered the most decisive period in the formation of the common law.²⁶

Henry II was a brilliant and energetic administrator who institutionalized the practices that would become the hallmarks of the system.

His reforms were primarily procedural rather than substantive, but their effect was transformative.

Key reforms under Henry II include:

• Itinerant Judges: Henry greatly expanded the use of traveling judges who rode on “circuits” throughout the country to hear cases.²⁶ This practice ensured that the king’s justice, and thus the “common” law declared by the courts at Westminster, was applied uniformly across England, further eroding the authority of local courts.²⁹
• The Jury System: Henry II systematized and encouraged the use of juries, not as deciders of guilt in the modern sense, but as bodies of local men sworn to report facts truthfully.²⁶ For example, the Assize of Clarendon (1166) required juries to identify suspected criminals for trial by royal courts, a precursor to the modern grand jury.²⁶
• The Writ System: Perhaps most importantly, Henry II’s reign saw the formalization and expansion of the writ system.¹¹ A writ was a written order issued in the king’s name that commanded a specific action, such as compelling a defendant to appear in court or ordering a sheriff to empanel a jury.¹¹ Each writ was tailored to a specific type of complaint, providing a specific remedy for a specific wrong. Initially, the law consisted not of substantive rights but of these procedural remedies.²⁸ By controlling the issuance of writs, the Crown controlled access to royal justice. The standardization of these writs over time led directly to the standardization of the substantive law itself, as similar problems were addressed with the same procedural tools, leading to similar outcomes.¹¹ The growth in the number of available writs, from around 39 in the late 12th century to over 400 by the late 13th century, demonstrates the rapid expansion of the common law’s reach.²⁶

3.3 The Triumph Over Competing Legal Systems

The rise of the common law was not an uncontested process.

For centuries during the Middle Ages, it coexisted and competed with several other powerful legal systems within England.¹¹

Church courts applied canon law to matters like marriage and inheritance.

Urban and rural courts continued to apply local customary law.

The Court of Chancery and maritime courts drew upon principles of Roman law to administer justice.¹¹

The common law’s ultimate triumph was not secured until the 17th century, and it was inextricably linked to the great political struggles between the Crown and Parliament.¹¹

In this conflict, Parliament aligned itself with the common law judges.

The common law, rooted in what was claimed to be the “immemorial custom” of the English people and independent of the king’s direct will, provided a powerful ideological and legal bulwark against royal absolutism.

When Parliament ultimately established its supremacy over the monarchy, it also asserted the supremacy of the common law, claiming the right to define it and declaring other legal systems subsidiary to it.¹¹

This political victory cemented the common law’s position as the dominant legal tradition of England.

3.4 The Spread of a Legal Empire

Having established its dominance at home, the common law began a process of global expansion that followed the trajectory of the British Empire.¹

England first exported its legal system to other parts of the British Isles, then to its colonies in North America, the Caribbean, Asia, Africa, and Australasia.¹

As a result, the common law became one of Britain’s most enduring colonial legacies.³³

Today, numerous countries that were once part of the British Empire retain the common law system, including the United States, Canada (with the exception of Quebec), Australia, New Zealand, India, Pakistan, Nigeria, and many others.³²

Once transplanted, however, these legal systems did not remain static copies of English law.

They began to evolve independently, adapting to local conditions and developing their own distinct bodies of precedent.

American common law, for instance, began by drawing heavily on English precedents but soon matured to create its own rules suited to a new federal republic.²

This process of transplantation and subsequent independent evolution accounts for the global family of common law jurisdictions that exists today.

Part IV: A Comparative Analysis: Common Law and Civil Law

To fully appreciate the unique character of the common law, it is essential to contrast it with its principal global alternative: the civil law tradition.

The civil law system, with roots in Roman law, is the most widespread legal system in the world, practiced in about 150 countries, including most of continental Europe, Latin America, and parts of Asia and Africa.²²

The differences between these two systems are not merely technical but reflect fundamentally different philosophies of law, governance, and the pursuit of legal certainty.

Civil law seeks certainty through

a priori legislative comprehensiveness—a written code designed to anticipate all problems—while common law seeks it through a posteriori judicial consistency—a rule of precedent ensuring that past solutions are predictably applied to future problems.

4.1 Foundational Difference: Codified vs. Uncodified

The most fundamental distinction lies in the source of law.¹¹

Civil law systems are codified.¹¹

Their foundation is a comprehensive, systematic, and authoritative legal code—such as the French Napoleonic Code or the German Civil Code—that serves as the primary source of law.⁵

These codes are enacted by the legislature and are designed to be a complete and coherent statement of the law, setting out general principles that apply to all potential disputes.²²

Legal reasoning in a civil law system is therefore deductive, starting from the general principles of the code and applying them to the specific facts of a case.

Common law, by contrast, is generally uncodified.⁴

While it incorporates statutes, its core is the vast and scattered body of judicial precedents.¹¹

There is no single, authoritative text that lays out the entirety of the law.

Legal reasoning is inductive, moving from the specific outcomes of past cases to formulate a general principle that can be applied to the current dispute.

It is a bottom-up system built from the building blocks of individual cases, as opposed to the top-down system of civil law, which flows from a legislative code.¹¹

4.2 The Role of the Judge and the Scholar

This foundational difference in the source of law leads to profoundly different roles for judges and legal scholars.

In a civil law system, the judge’s role is often described as that of an investigator or an “engine driver”.¹¹

Their primary task is to establish the facts of the case and then to find and apply the correct provision of the applicable code.⁵

While they interpret the code, they are not, in theory, creating law.

Their decisions are not a binding source of law for future cases.³⁶

Consequently, the writings of legal academics and scholars (

la doctrine) play a highly influential role.

These scholars provide the systematic interpretation, commentary, and analysis that shapes the understanding and application of the codes, giving them a place of prominence often reserved for senior judges in the common law world.¹⁷

In the common law system, as previously discussed, the judge is a neutral arbiter in an adversarial contest.¹¹

Their role is not just to apply the law but to shape it through the interpretation of statutes and the application, distinction, and creation of precedent.¹¹

Because the judges themselves are the primary authors of the law, the writings of legal scholars have historically played a less central role, though their persuasive influence has grown in modern times.¹⁷

4.3 Practical Consequences: Contracts and Court Decisions

The philosophical differences between the two systems manifest in tangible, practical ways.

• Contracts: Common law contracts are famously long and detailed.³⁷ Because the system lacks a comprehensive code of default rules, the parties to a contract must attempt to anticipate every possible contingency and spell out their respective rights and obligations explicitly within the text of the agreement itself. A common law contract is, in effect, a piece of private legislation for the parties. Civil law contracts can be much shorter and simpler because they operate against the backdrop of a detailed civil code that provides a host of default rules and implied terms, filling in any gaps left by the parties.³⁷
• Judicial Opinions: The written judgments of the two systems are also strikingly different. A common law appellate court decision is typically a long, discursive essay. The judge explains the facts in detail, reviews the relevant precedents, analyzes the legal principles, and provides a thorough justification for their reasoning.¹⁷ This is necessary because the decision itself is a contribution to the law and must provide clear guidance for future courts. A typical civil law decision, particularly in the French tradition, is often brief, formalistic, and syllogistic, citing the relevant articles of the code and stating a conclusion with little explanatory justification.¹⁷

4.4 The Trend of Convergence

Despite these profound historical and philosophical differences, in the modern era, the common law and civil law traditions have begun to converge in significant ways.¹

The distinction, while still fundamental, is no longer as stark as it once was.

Common law jurisdictions have increasingly resorted to large-scale statutory codification to govern entire areas of law, such as the UK’s Theft Acts or the Uniform Commercial Code in the United States.²⁵

This brings a degree of legislative systemization more characteristic of civil law.

Conversely, civil law jurisdictions are placing increasing importance on the value of prior judicial decisions.

While not formally bound by precedent in the same way as common law courts, civil law judges strive for consistency and will often follow a consistent line of decisions from higher courts, a practice known as

jurisprudence constante.³⁶

This trend is driven by factors such as globalization, the harmonizing influence of international bodies like the European Union, and a mutual recognition of the practical benefits of each other’s approaches.³⁹

Part V: Global Jurisdictions and Modern Application

The common law’s historical journey has resulted in a vast global footprint.

Its application today is not monolithic; it exists in “pure” forms, but more frequently, it is found in “mixed” legal systems where it interacts with civil law, Islamic law, or local customary law.

This global map of legal systems is, in essence, a map of historical empires.

The prevalence of common law is a direct legacy of the British Empire, while the dominance of civil law reflects the influence of the Roman Empire and the colonial expansion of Napoleonic France, Spain, and Portugal.³¹

The legal system of a given country is thus a powerful indicator of its historical and political lineage.

5.1 Pure Common Law Jurisdictions

A number of countries and territories operate under legal systems that are primarily or almost exclusively derived from the English common law tradition.

In these jurisdictions, judicial precedent is the cornerstone of the legal system, though it is supplemented by extensive statutory law.

Key examples include:

• Australia ³⁴
• The Bahamas ³⁴
• Barbados ³⁴
• Belize ³⁴
• Canada (except for the province of Quebec) ³⁴
• England and Wales ³⁴
• Ireland ³⁴
• Jamaica ³⁴
• New Zealand ³⁴
• Trinidad and Tobago ³⁴
• The United States (at the federal level and in 49 of the 50 states) ³⁴

5.2 Mixed Legal Systems: The Global Melting Pot

Perhaps more common in the contemporary world are mixed legal systems, where common law principles are interwoven with other legal traditions.¹

These legal hybrids are the product of complex histories, often involving successive waves of colonization, trade, or the resilience of powerful indigenous legal cultures.

They demonstrate that the “pure” systems are often ideal types, and that legal practice on the ground is frequently a blend of multiple influences.

Notable categories of mixed systems include:

• Common Law and Civil Law: These jurisdictions often experienced colonization by both a civil law power (like France or the Netherlands) and a common law power (Britain). Their legal systems fuse elements from both traditions. Examples include:

• South Africa: A hybrid of Roman-Dutch civil law and English common law.³⁶
• Louisiana (USA): Based on the French Napoleonic Code, but operating within the broader U.S. federal common law system.³⁴
• Quebec (Canada): Uses a civil code for private law matters but is subject to Canadian federal common law for public and criminal law.³⁴
• Scotland (UK): A unique system with a Roman law foundation that has been heavily influenced by English common law.³⁴
• Philippines and Puerto Rico: Both have civil law foundations from Spanish rule, heavily influenced by common law from their subsequent association with the United States.³⁴
• Common Law and Religious Law: In these nations, the common law framework inherited from the British Empire coexists with religious law, most often Islamic (Sharia) law, which typically governs personal status matters like marriage, divorce, and inheritance. Examples include:

• Pakistan, Bangladesh, India: All have a common law foundation but apply separate personal status laws for different religious communities.³¹
• Nigeria, Malaysia, Singapore: These countries have secular common law systems, but with parallel Sharia courts that have jurisdiction over the personal law of their Muslim populations.³¹
• Common Law and Customary Law: In many parts of Africa and Oceania, the common law system introduced during the colonial period operates alongside pre-existing indigenous customary law. Often, customary law is applied in local matters and family disputes, while common law governs commercial and national affairs. Examples include:

• Ghana, Kenya, Uganda, Tanzania: All have mixed systems incorporating English common law and various bodies of local customary law.³¹
• Papua New Guinea: Its constitution explicitly recognizes both English common law and the customary laws of its diverse indigenous groups as sources of law.³⁵

5.3 Table of Global Legal Systems

The following table provides a consolidated, at-a-glance overview of the legal systems in a selection of countries and jurisdictions, illustrating the global distribution of common, civil, and mixed traditions.

Country/Jurisdiction	Dominant Legal Tradition	Notes on Influences and Mixture
Common Law Jurisdictions
Australia	Common Law	Based on the English model.35
Canada	Common Law	Except in Quebec; federal law incorporates both traditions.35
England and Wales	Common Law	The origin of the common law system.35
Hong Kong	Common Law	Principally based on English common law, influenced by PRC law.35
India	Common Law	Mixed with separate personal law codes for religious groups.31
Ireland	Common Law	Based on English common law pre-1922, since evolved independently.35
New Zealand	Common Law	Based on English model with aspects of indigenous Māori law (tikanga Māori).35
Nigeria	Common Law	Mixed with Islamic (Sharia) law in northern states and customary law.31
Singapore	Common Law	Based on English model; Sharia law applies to Muslims’ personal law.34
United States	Common Law	Federal system and 49 states; Louisiana is a mixed jurisdiction.34
Civil Law Jurisdictions
Argentina	Civil Law	Based on West European legal systems.31
Brazil	Civil Law	Based on Portuguese civil law.41
France	Civil Law	Origin of the Napoleonic Code, a model for many civil law systems.36
Germany	Civil Law	Germanic civil law tradition; its code is also highly influential.38
Japan	Civil Law	Mixed with customary law influences; based on German model.41
Mexico	Civil Law	Based on Spanish civil law.41
Russia	Civil Law	Civil law system established post-Soviet era.22
Notable Mixed Jurisdictions
Bangladesh	Mixed	Mostly English common law and Islamic (Sharia) law.31
Israel	Mixed	English common law, civil law, and Jewish and Islamic religious law.34
Louisiana (USA)	Mixed	Civil law (Napoleonic Code) for private law; common law for public law.34
Pakistan	Mixed	English common law with strong provisions of Islamic (Sharia) law.34
Philippines	Mixed	Civil law (Spanish origin) heavily influenced by U.S. common law.34
Quebec (Canada)	Mixed	Civil law (French origin) for private law; common law for public law.34
Scotland (UK)	Mixed	Civil law (Roman origin) heavily influenced by English common law.34
South Africa	Mixed	Roman-Dutch civil law and English common law.34
Sri Lanka	Mixed	Roman-Dutch civil law, English common law, and local customary laws.34

Part VI: Clarification of a Common Misnomer: “Common-Law Marriage”

A final but crucial point of clarification is necessary to distinguish the common law legal system from the distinct and often misunderstood concept of “common-law marriage.” The shared terminology creates frequent confusion, but the two concepts are fundamentally different.

Failing to distinguish between them is a common error; making the distinction is a mark of expert clarity.

6.1 Defining Informal Marriage

“Common-law marriage” is a specific and increasingly rare doctrine within the field of family law.⁵

It is not a separate type of law but a method of forming a legally recognized marriage without a formal state license or religious ceremony.⁴²

It is also known by other names, such as “informal marriage,” “sui iuris marriage,” or “marriage by habit and repute”.⁴²

For a common-law marriage to be legally valid in the few jurisdictions that still recognize it, the couple must typically satisfy a strict, multi-part test.

This generally requires that both parties:

1. Are legally capable of marrying (e.g., of age, not already married).
2. Have a present intent to be married.
3. Hold themselves out to the public as a married couple (e.g., by using the same last name, referring to each other as husband and wife, filing joint tax returns).⁴²

Simple cohabitation, no matter how long the duration, is not sufficient to create a common-law marriage.⁴²

The doctrine is a vestige of an older era when community recognition was sufficient to validate a marital union, but it has been abolished in most states and countries as legal systems have moved toward greater formalization and statutory regulation of personal status.⁵

6.2 Distinction from the Legal System

It is critical to understand that the family law concept of “common-law marriage” is entirely separate from the “common law” legal system.

The former is a specific rule about how a marriage can be formed, a rule that exists within some common law jurisdictions.

The latter is the entire legal tradition based on judicial precedent.

One can live in a common law country like the United Kingdom and have no access to the doctrine of common-law marriage, as it does not exist there.

Conversely, the doctrine exists in a handful of U.S. states that are all part of the broader common law system.⁵

The popular, colloquial use of the term “common-law marriage” to describe any long-term cohabiting couple is legally incorrect and can lead to dangerous misconceptions about legal rights and obligations upon separation or death.⁴²

This popular misuse highlights a broader tension between social perception and legal reality.

It also illustrates the overarching historical trend within common law jurisdictions themselves: a gradual shift away from rules based on custom and informal recognition toward formalization and comprehensive statutory regulation, particularly in the realm of family law.

Works cited

1. Common law – Wikipedia, accessed on August 10, 2025, https://en.wikipedia.org/wiki/Common_law
2. common law | Wex | US Law | LII / Legal Information Institute, accessed on August 10, 2025, https://www.law.cornell.edu/wex/common_law
3. Overview of common law | Illinois Legal Aid Online, accessed on August 10, 2025, https://www.illinoislegalaid.org/legal-information/basic-overview-common-law
4. Common Law vs Statutory Law: Key Differences Explained, accessed on August 10, 2025, https://coolidgelawfirmaz.com/common-law-v-statutory-law-criminal-defense-attorney/
5. Understanding Common Law: Principles, Practices, and Differences from Civil Law, accessed on August 10, 2025, https://www.investopedia.com/terms/c/common-law.asp
6. en.wikipedia.org, accessed on August 10, 2025, https://en.wikipedia.org/wiki/Common_law#:~:text=Common%20law%20(also%20known%20as,made%20in%20previous%20similar%20cases.
7. www.law.cornell.edu, accessed on August 10, 2025, https://www.law.cornell.edu/wex/case_law#:~:text=Case%20law%2C%20also%20used%20interchangeably,a%20particular%20issue%20or%20topic.
8. Glossary of Legal Terms – United States Courts, accessed on August 10, 2025, https://www.uscourts.gov/glossary
9. case law | Wex | US Law | LII / Legal Information Institute, accessed on August 10, 2025, https://www.law.cornell.edu/wex/case_law
10. What is case law? | University of Law, accessed on August 10, 2025, https://www.law.ac.uk/resources/blog/what-is-case-law/
11. THE COMMON LAW AND CIVIL LAW TRADITIONS – UC Berkeley Law, accessed on August 10, 2025, https://www.law.berkeley.edu/wp-content/uploads/2017/11/CommonLawCivilLawTraditions.pdf
12. What is Common Law? Definition, Uses & Differences from Civil Law System – CaseFox, accessed on August 10, 2025, https://www.casefox.com/blog/what-is-common-law/
13. Common law – Definition, Meaning & Synonyms – Vocabulary.com, accessed on August 10, 2025, https://www.vocabulary.com/dictionary/common%20law
14. 4 Synonyms & Antonyms for COMMON LAW | Thesaurus.com, accessed on August 10, 2025, https://www.thesaurus.com/browse/common-law
15. Common law and the Bill of Rights | EBSCO Research Starters, accessed on August 10, 2025, https://www.ebsco.com/research-starters/law/common-law-and-bill-rights
16. Understanding the Intricacies of the Common Law Right System – Montague Law, accessed on August 10, 2025, https://montague.law/blog/understanding-the-common-law-right-system/
17. Case law – Wikipedia, accessed on August 10, 2025, https://en.wikipedia.org/wiki/Case_law
18. The scope of judicial law-making in the common … – Supreme Court, accessed on August 10, 2025, https://supremecourt.uk/uploads/speech_191028_a541d2331c.pdf
19. Common-Law Courts in a Civil-Law System: The Role of United Stat-es Federal Courts in Interpreting the Constitution and Laws., accessed on August 10, 2025, https://masonlec.org/site/files/2012/05/Rao_Scalia-essay.pdf
20. What is judge-made law? Simple Definition & Meaning – LSD.Law, accessed on August 10, 2025, https://lsd.law/define/judge-made-law
21. How Judge Made Law Shapes the Legal System, accessed on August 10, 2025, https://www.upcounsel.com/judge-made-law
22. IN BRIEF – Ontario Justice Education Network, accessed on August 10, 2025, https://ojen.ca/wp-content/uploads/In-Brief_Common-Law-and-Civil-Law.pdf
23. In Brief: Common Law and Civil Law (Teacher Resource) – Ontario Justice Education Network, accessed on August 10, 2025, https://ojen.ca/en/download/in-brief-common-law-and-civil-law-teacher-resource/
24. Judge-Made Law: Constitutional Duties & Obligations under the Separation of Powers – Digital Commons@DePaul, accessed on August 10, 2025, https://via.library.depaul.edu/cgi/viewcontent.cgi?article=1649&context=law-review
25. The English legal system – ICLR, accessed on August 10, 2025, https://www.iclr.co.uk/knowledge/topics/the-english-legal-system/
26. Common-Law Tradition Emerges in England | EBSCO Research …, accessed on August 10, 2025, https://www.ebsco.com/research-starters/history/common-law-tradition-emerges-england
27. Anglo-British Law & History, 1 – Legal Studies Program – UW–Madison, accessed on August 10, 2025, https://users.ssc.wisc.edu/~rkeyser/?page_id=526
28. Common law | Definition, Origins, Development, & Examples | Britannica, accessed on August 10, 2025, https://www.britannica.com/topic/common-law
29. Common Law | EBSCO Research Starters, accessed on August 10, 2025, https://www.ebsco.com/research-starters/history/common-law
30. British History, 2: The Origins of Common Law, accessed on August 10, 2025, https://users.ssc.wisc.edu/~rkeyser/?page_id=625
31. Legal system – The World Factbook – CIA, accessed on August 10, 2025, https://www.cia.gov/the-world-factbook/about/archives/2021/field/legal-system
32. Is it Civil Law or Common Law? Try Juriglobe!, accessed on August 10, 2025, https://law.wisc.edu/news/Law_Library/Is_it_Civil_Law_or_Common_Law_Tr_2024-01-24_0
33. In Which Countries Is Common Law Practiced? | CountyOffice News – YouTube, accessed on August 10, 2025, https://www.youtube.com/watch?v=fleDwAY-zMo
34. List of Common Law Jurisdictions, accessed on August 10, 2025, https://nca.legal/wp-content/uploads/2021/10/NCA-Jurisdictions-Policies-Oct-2021.pdf
35. List of national legal systems – Wikipedia, accessed on August 10, 2025, https://en.wikipedia.org/wiki/List_of_national_legal_systems
36. Civil law (legal system) – Wikipedia, accessed on August 10, 2025, https://en.wikipedia.org/wiki/Civil_law_(legal_system)
37. Key Features of Common Law or Civil Law Systems – World Bank PPP, accessed on August 10, 2025, https://ppp.worldbank.org/legislation-regulation/framework-assessment/legal-systems/common-vs-civil-law
38. Common-Law Drafting in Civil-Law Jurisdictions – American Bar Association, accessed on August 10, 2025, https://www.americanbar.org/groups/business_law/resources/business-law-today/2020-january/common-law-drafting-in-civil-law-jurisdictions/
39. ARTICLE COMMON LAW, CIVIL LAW, AND SUPRANATIONAL LAW: CLASHES OF INTERPRETATION, accessed on August 10, 2025, https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2892&context=ilj
40. Codification and Judge-Made Law: A Problem of Coexistence, accessed on August 10, 2025, https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2330&context=ilj
41. Civil law Systems and Mixed Systems with a Civil law Tradition – Juriglobe, accessed on August 10, 2025, http://www.juriglobe.ca/eng/sys-juri/class-poli/droit-civil.php
42. Common-law marriage – Wikipedia, accessed on August 10, 2025, https://en.wikipedia.org/wiki/Common-law_marriage