Common Law and Civil Law: What’s the Difference?
In the United States, the legal system is largely rooted in the Anglo-American common law system. The common law from England and its evolution through American history is the foundation for much of our current legal system today. Common law systems are based on case precedent rather than codified statutes. A decision in one case can influence the decision in another case that shares similar circumstances.
The system of civil law is an entirely different approach. The civil law system is codified and based on statutes, rules, and regulations. It originated from the Roman Empire, evolving from Roman law. Common law systems are judicial, while civil law systems are legislative. Colorado is an example of a common law state, while Louisiana is an example of a civil law state .
There are 195 jurisdictions globally that can be divided into 4 main groups:
Civil Law: 70 jurisdictions, which includes France, Germany, and Japan
Common Law: 80 jurisdictions, which includes Canada, New Zealand, Australia, and the United Kingdom
Customary Law: 10 jurisdictions, which includes Bhutan, the Republic of the Maldives, and the Republic of Palau
Religious Law: 35 jurisdictions, which includes the Republic of Lebanon, the Republic of Mozambique, and the Republic of the Sudan
Oftentimes, two or more systems of law will underpin a nation. For example, many countries have a common law system based on their colonial past, but have a civil law system in place that exists alongside the common law system. Additionally, five countries have their own legal system. Israel uses its own legal system for all types of cases. However, it also recognizes other legal systems in personal status issues such as marriage. Japan also has its own legal system, while most nations of the Middle East and North Africa use Sharia law.
The Legal System in Nevada: An Overview
As part of Nevada’s legal framework, the state has adopted a written constitution, which includes due process and equal protection clauses. As such, in many respects federal law is also applicable to the extent it is consistent with the Nevada constitution. In other respects, Nevada law differs from federal law in important ways. Unlike some states, Nevada does not have its own long arm statute (set of rules that allows Nevada courts to exert person jurisdiction over nonresident defendants). The state’s long arm statute is therefore provided for expressly under Nevada’s statute of limitations provision, NRS 11.501. As a result, the federal due process standard applies to Nevada courts, so long as the plaintiff seeks personal jurisdiction over a nonresident defendant.
Nevada also operates under its own "notice pleading" regime, by which the plaintiff’s allegations need not go into any detail beyond what is already required under the federal system. Courts will not dismiss a case for a failure to plead fraud, mistake, or even conditions precedent. In this regard, Nevada operates under a "notice pleading" system like many of the United States District Courts of Appeal.
Precedent in Nevada: An Overview
Legal precedent is the principle that courts have to follow the rulings and decisions made by higher courts, regardless of whether the facts of a particular case are the same. This practice exists in many of the common law nations and jurisdictions, including the United States and, thus, Nevada. While the decisions made by lower level courts, such as district courts, are not binding on other lower courts, decisions made by appellate courts are. The reasoning used to reach decisions in a particular case can impact how similar cases are decided. In other words, when creating law, judges are able to look back at prior cases and consider whether the reasoning used to reach a decision in a past case is applicable to their current case. If there are no prior decisions on any similar issues, judges are free to interpret the law as they see fit.
In Nevada, the decisions made by district court judges are not binding on other judges in the state. While district courts are part of the state judicial system, they do not create precedent for other courts. This means that district court decisions are still considered binding in the court where they were made, but other courts are free to disagree with them. Decisions made by district courts are considered persuasive rather than binding. The result of this is that Nevada lower courts can use state Supreme Court decisions in order to reach a final decision in a case. This effect is different than the use of precedent in the federal system. In federal court, all lower courts are required to follow decisions made by the Supreme Court and the circuit courts, meaning that district court decisions cannot be as useful as they are in Nevada courts.
Cases that are particularly notable and that have wide-reaching implications are designated as controlling precedent. Controlling precedent represents the decisions made by courts that are controlling, so that future courts who hear similar cases are bound to these decisions. When lower courts are required to follow precedent, this means that precedent is either binding precedent or persuasive precedent.
One notable case in Nevada serves as an example of controlling precedent. In Hosmer v. State Farm Mutual Automobile Ins., the Nevada Supreme Court ultimately clarified the statutes of limitations on bad faith actions. A defendant in the case had originally argued that the statute of limitations was actually one year. After the Ninth Circuit Court of Appeals agreed with this argument, the Nevada Supreme Court held that because the statute was ambiguous, one year was the proper statute of limitations for bad faith actions against insurers.
Nevada Statutory Law vs. Common Law
In addition to its substantive common law system, Nevada is a jurisdiction of codified laws, rules, and regulations. In many areas of the law, the legislature has enacted statutes to address in detail the principles or problems associated with that particular subject matter. Statutes generally take precedence over the common law where they address the same subject matter, so long as the statute is not in conflict with the constitution or a rule of equity or common law.
Intervention of state legislation upon the common law occurs in two ways. First, the legislature may have enacted a body of statutes on a given subject, which whether in conflict with the common law or not, will be effective and will govern the common law in that state. In Nevada, this has occurred with respect to the Uniform Commercial Code and the Uniform Arbitration Act, as well as various other areas. Second, the legislature may have enacted statutes covering specific areas of the law, but left general principles intact. Examples of this in Nevada include the Civil Practice Code, the Evidence Code, the Criminal Code , and various other areas. The general principles in that area of the law then govern, unless an express statute controls.
Statutes may be necessary to establish a step-by-step procedure designed to obtain a specific relief, right, or remedy on the basis of the ability of the person to fulfill the elements of the statute. The statutory remedy may be the only remedy available for the specific relief, right, or remedy sought.
In jurisdictions such as Nevada that do not have a body of common law, the common law has to be established through judicial decisions. If the legislature has acted upon a common law subject matter by enacting a statute devoted to it, that is evidence that no common law exists on the subject in that state. However, the legislature’s action does not prevent recognition or application of the common law.
Common law is not to be rejected as a jurisprudence, but rather only where necessary to give effect to a statute. Common law cannot override a constitutional provision or conflict with a specific statute adopted by the legislature for particular reasons. Neither can it override customary practices created by the constitution.
Common Law Marriage vs. Legal Marriage in Nevada
The Nevada Legislature enacted a statute in 1957 abolishing common law marriages entered into after April 10, 1957, the date of the enactment. Under NRS 122.050, "All marriages in this state contracted after April 10, 1957, are void and without legal effect unless contracted pursuant to the laws of this State."
The Nevada Supreme Court stated in In re Marriage of Baines, 70 P.3d 643 (2003), that "Harris v. Harris, 108 Nev. 958, 843 P.2d 845 (1993), explains that Nevada has abolished "common law marriages but continues to recognize common law marriage as valid so long as the essential elements of marriage were present when the parties entered into the relationship."
"Because Harris exhibits two lines of reasoning for its conclusion that common law marriage remains valid, we conclude that common law marriage remains valid in Nevada." "If, however, the Legislature had intended to completely abolish common law marriage, it could have done so easily by a simple modification of the common law marriage statute. The Legislature has amended NRS 122.050 twice since its enactment, yet it has failed to do so. See 1959 Nev. Stat., ch. 429, § 3, at 959; 1967 Nev. Stat., ch. 25, § 1, at 28."
"In doing so, the Legislature has maintained its recognition of common law marriage, thereby effectively overruling Harris and in effect creating its own body of marriage law." In re Marriage of Baines, 70 P.3d 643, 646 (2003).
The Harris case was later cited for the same premise in Thomas v. Thomas, 121 P.3d 615 (2005).
Impact for Residents and Attorneys
For the average resident of Nevada, the fact that it is a common law jurisdiction has few, if any, practical implications. Practitioners, however, are faced with the challenge of engaging with a system that prioritizes the importance of stare decisis. Case law in Nevada informs and dictates the outcome of litigation each day, from criminal prosecutions to civil disputes. Although cases can prove useful to understanding how a particular legal issue may be decided in a Nevada courtroom, Nevada practitioners are cautioned against relying too heavily on the decisions of Nevada courts alone .
Given the fact that Nevada does not have an intermediate appellate court, Nevada practitioners often look to other jurisdictions for guidance on issues that Nevada courts have not yet addressed. Similarly, Nevada lawyers bringing or defending against a matter are encouraged to research, investigate, and draft thorough legal arguments that address not only the relevant Nevada caselaw, but also the corresponding case law of other jurisdictions. Through this process, practitioners are better able to engage with the system, anticipating and preempting new or wrongful interpretations of Nevada law. In so doing, Nevada attorneys are able to uphold the precedent of Nevada courts while ensuring that those courts are informed by the legal interpretations of other states.