8.1 The Nature of Law, Common Law vs. Civil Law & Categorizing the Law
Key Takeaways
- NALS lists the nature of law, the distinction between common law and civil law, categorizing the law, and types of legal actions as four separate topics under the Part 3 Legal Authority heading.
- A common law system builds doctrine case by case through binding precedent, while a civil law system reasons deductively from a comprehensive code, and Louisiana is the American civil law jurisdiction.
- Substantive law creates rights and duties; procedural law governs how those rights are enforced, and a rule mislabeled as one or the other produces the wrong analysis of retroactivity and choice of law.
- Public law governs the relationship between the state and individuals, while private law governs relations among private parties, and a single set of facts can generate both a criminal prosecution and a civil suit.
- Actions at law seek money damages and historically carry a jury right, while actions in equity seek injunctions, specific performance, or rescission and are tried to the court.
8.1 The Nature of Law, Common Law vs. Civil Law & Categorizing the Law
[!NOTE] NALS PP Exam Blueprint Focus: Part 3 of the PP examination pairs Ethics & Judgment with a second heading called Legal Authority, and that heading opens with four conceptual topics: the distinction between common law and civil law, categorizing the law, types of legal actions, and the nature of law. These are the classification tools every later analysis depends on.
The Nature of Law
Law is the body of enforceable rules by which a society orders conduct and resolves disputes, backed by the coercive authority of the state. Three attributes distinguish a legal rule from a social or moral norm:
- It is authoritative. It issues from a body with recognized power to make it — a legislature, a court, an agency, a constitution-ratifying people.
- It is enforceable. Violation carries a consequence the state will impose: a judgment, an injunction, a fine, incarceration.
- It is general and prospective. It applies to classes of conduct rather than named individuals, and it ordinarily governs conduct occurring after it takes effect.
Law and morality overlap without coinciding. Conduct can be lawful and wrong, or unlawful and morally defensible. For a paralegal, the practical significance is that the analysis a supervising attorney needs is what the law requires, separate from what the paralegal believes ought to be true.
Common Law and Civil Law Systems
The distinction is between two ways of generating and reasoning from legal authority.
| Common law system | Civil law system | |
|---|---|---|
| Origin | Medieval English royal courts | Roman law, through the continental codifications |
| Primary source | Judicial decisions accumulating into precedent, together with statutes | A comprehensive, systematically organized code |
| Reasoning | Inductive — from decided cases to the governing rule | Deductive — from the code provision to the case |
| Role of precedent | Binding within the hierarchy under stare decisis | Persuasive; prior decisions do not bind |
| Judicial posture | Adversarial; the judge is a neutral referee between the parties | More inquisitorial; the judge actively develops the record |
| Where found | England, the United States (except Louisiana), Canada (except Quebec), Australia, India | France, Germany, Spain, Japan, most of Latin America, Louisiana, Quebec |
Louisiana is the American civil law jurisdiction. Its private law derives from the Louisiana Civil Code rather than from English common law, which is why Louisiana uses distinctive vocabulary — usufruct, forced heirship, donation inter vivos, lesion beyond moiety — and why a paralegal must never assume that a majority-rule common law proposition states Louisiana law.
Even within a common law system, statutes now govern most fields. The system is called common law because of how courts reason and how precedent operates, not because judges rather than legislatures make most of the rules.
Equity is the third historical stream: a separate body of doctrine developed in the English Court of Chancery to relieve against the rigidity of the common law writ system. American jurisdictions merged law and equity procedurally, but the substantive distinction survives in the remedies available and the right to a jury.
Categorizing the Law
Substantive versus procedural
| Substantive law | Procedural law | |
|---|---|---|
| What it does | Creates, defines, and regulates rights and duties | Governs how rights are enforced |
| Examples | The elements of negligence; what makes a contract enforceable; the definition of burglary | Rules of civil procedure; rules of evidence; pleading requirements; service of process |
| Why the label matters | A federal court sitting in diversity applies state substantive law and federal procedural law; retroactivity analysis differs by category |
Public versus private
| Public law | Private law | |
|---|---|---|
| Governs | The relationship between the state and persons | Relations among private parties |
| Fields | Constitutional, criminal, administrative, tax | Contracts, torts, property, family, business organizations |
| Who enforces | The government | The injured party |
One set of facts can generate both. A drunk driver who injures a pedestrian faces a criminal prosecution brought by the state, requiring proof beyond a reasonable doubt and punishable by incarceration, and a civil action brought by the pedestrian, requiring proof by a preponderance of the evidence and yielding damages. An acquittal in the criminal case does not bar the civil suit, because the burdens differ.
Civil versus criminal
| Civil | Criminal | |
|---|---|---|
| Who brings it | The injured party (plaintiff) | The government (prosecution) |
| Burden of proof | Preponderance of the evidence | Beyond a reasonable doubt |
| Outcome | Judgment for damages or equitable relief | Conviction, punishment |
| Verdict requirement | Often less than unanimity, by jurisdiction | Unanimity required for serious offenses |
Written and unwritten law
Written law is enacted and published: constitutions, statutes, ordinances, treaties, regulations. Unwritten law is judicially developed common law doctrine, which exists in written opinions but was not enacted by a legislature.
Types of Legal Actions
The historical split between law and equity still determines what relief is available and who decides the case.
| Action at law | Suit in equity | |
|---|---|---|
| Relief sought | Money damages | Injunction, specific performance, rescission, reformation, constructive trust, accounting |
| Available when | Damages are adequate | The remedy at law is inadequate |
| Jury right | Yes, under the Seventh Amendment in federal court | No — tried to the court |
| Governing maxims | — | Equity follows the law; laches; unclean hands; equity will not suffer a wrong without a remedy |
A plaintiff who pleads both damages and an injunction has a mixed case; in federal practice the legal issues are ordinarily tried to a jury first, and the equitable issues are then decided by the court consistently with the jury's findings.
Further classifications a paralegal must recognize:
- In rem, in personam, and quasi in rem actions, distinguished by whether the judgment binds a person, determines rights in a thing, or reaches a person only to the extent of attached property.
- Special proceedings — probate, guardianship, adoption, name change — which are statutory rather than ordinary civil actions, and which use petition-and-respondent rather than complaint-and-defendant terminology.
- Declaratory judgment actions, which resolve a live controversy about legal rights before either party has breached.
[!TIP] The recurring exam pattern: a fact set asks whether a jury will decide. Identify the relief sought. Money damages means an action at law and a jury right; an injunction or specific performance means equity and a bench decision.
A commercial tenant sues to enjoin a landlord from re-letting disputed premises and also seeks money damages for lost profits. In federal court, who decides which issues?
A paralegal researching a succession question for a Louisiana matter locates a well-reasoned Texas appellate decision applying the majority common law rule. How should the paralegal treat that authority?
A federal court sitting in diversity must decide whether to apply the forum state's three-year limitations period or a shorter federal filing practice. Which classification governs the analysis?