What is North Carolina Law: Is NC a Common Law State?

Common Law and Civil Law Explained

There are two major categories of legal systems in the world: common law and civil law. Most legal systems can be categorized as either one or the other, although there are other minor categories.
Common law systems originated in England. They placed great importance on previous common law decisions of judges. So when a lawyer was arguing before a judge, both the lawyer and the judge would be concerned about previous common law decisions that impacted their cases.
Thus, the common law common is rooted in the decisions of judges, and is heavily influenced by the opinions given in past cases.
Some countries that have common law systems include Canada, New Zealand, India, South Africa and the United States .
Civil law systems are much older. Historically, the first civil law system started with Roman Emperor Justinian II in the 6th century. Like common law systems, civil law systems place importance on concepts developed in ancient times. Civil law systems used codes, and judges tried to follow these codes as best as they could. Judges had less power than they do in common law courts; judges were more like lawmakers than interpreters in a civil system.
Some countries that have civil law systems include France, Germany, and Japan.
North Carolina is a common law state. We can see this influence in our court. Our state Supreme Court refers often to past decisions made in other cases. Even our laws themselves are based on English common law.

North Carolina Law

North Carolina operates under a legal framework influenced by the common law. The State’s Constitution and statutory laws are the supreme law of the land unless they conflict with any provision of the U.S. Constitution.
The judiciary is one of the three branches of government in the state, with powers and provisions laid out in the Constitution of the State of North Carolina. The judicial branch is divided into four courts, each with its own level of authority over legal matters. The Supreme Court of North Carolina sits at the top of the court system with ultimate appellate jurisdiction over all matters. Typically, the Supreme Court decides routine cases by written opinion, including a dissent. The court is generally composed of seven justices, six associate justices and the Chief Justice. The court’s main job is to review appeals from lower courts. The state appellate courts have limited appellate jurisdiction, and there are two appellate courts that operate under the Supreme Court: The first appellate court is the Court of Appeals, which contains a panel of 15 appellate judges. Duties include reviewing the record of trial court proceedings to determine whether any errors were made that would require a new trial or retrial. A majority of the Court of Appeals judges must agree to rule on the outcome of the appeal, or the case is heard anew by the entire panel of judges. A three-judge panel may hear the appeal and issue a written opinion and judgment. The other appellate court is the Business Court, which considers matters in the areas of corporate, contract, and business law. This court hears cases involving business disputes, securities, antitrust and unfair trade practices, franchise issues, insurance controversies, and class action lawsuits. The trial courts cover the entire state and have original jurisdiction over most legal matters. The Superior Court is the primary trial court in the state and has statewide jurisdiction. Superior court judges are elected statewide to eight-year terms. The District Court hears most family law, criminal, juvenile, and probate matters in the state. At least one district court judge in each of the state’s 100 counties is elected for a four-year term. All North Carolina residents are expected to serve as jurors in your local courthouse if you receive a jury summons.

Historical Context of Common Law

The origins of North Carolina’s common law legal system is tied to its settlement history. The area, known as Carolina, was settled beginning in 1585, first as a commercial venture by Sir Walter Raleigh, and then as a colony by King Charles II of England in the late 1600s. These efforts failed, with colonists citing the natural landscape and slow communications. A beginning hint of a legal system emerged by 1663 when the Carolina colonists sought to establish laws to regulate their conduct and continued in 1708 when the Colony established two Courts of Judicature, which predated the establishment of the Provinces’ General Court and its successor, the Superior Courts.
Carolina was established as a proprietary colony, managed by eight Lord Proprietors. Hence, the law was directly controlled by the Lords, and the royal governors appointed by the Lords enforced the law. With the enforcement of the law fell under the Civil Law or Code Law, based on ancient Roman law and European principles, as opposed to common law traditions preferred by Plymouth, Massachusetts, and Virginia. Significantly, the Lords Proprietors restricted the right to trial by jury, which was counter to Englishmen’s principles. As a result, a group of disgruntled landowners forced the Lords Proprietors to suspend the Civil Law and adopt the Fundamental Constitutions of Carolina. The Fundamental Constitutions essentially established a mixed legal system of common law and code law. It preserved the rights of the Lords to set and administer its laws, but also provided that English Law was to be adopted in absence of any specific rule of governing law. Hence, England’s canon law, moral codes, statutes, and common law were incorporated when not contrary to the Fundamental Constitutions. The Fundamental Constitution’s authority was further diminished when the Lords relinquished control of the colony to the Crown in 1729.
Thus, in 1708, after a long period of experimentation, the General Assembly established one Superior Court for the entire Province under English rules of equity and common law. In addition, the General Assembly established the North Carolina Supreme Court of Errors and Appeals to hear common law cases on appeal from the General Court, where the northern (Edenton) and southern (New Bern) colonies established courts of various jurisdictions. The Supreme Court’s responsibility grew in 1729, when the Province reduced its Superior Courts to two, one each for the northern and southern portions of the Province. The General Assembly, looking for an alternative to the costly travel to their respective courts established two Courts of Oyer and Terminer in 1734 for the purpose of trying capital and other heavy criminal cases. One court served the northern Province, and the second served the southern Province. In 1767 the Courts of Oyer and Terminer were restructured and remained until their abolition in the 1868 State constitution.
The 1743 "Act for Establishing Publick Courts" provided for a Chief Justice and three Associate Justices to hear appeals in a Court of Errors and Appeals. The General Assembly could expand the number of districts by an act to meet local needs. The Supreme Court moved to Edenton in 1756, when New Bern ceased to function as the capital. In 1789, after the Revolutionary War, the General Assembly established a Supreme Court of Law and Equity to address the unresolved issues from the Revolutionary War. The North Carolina Supreme Court continued with Finally, with the ratification of the North Carolina Constitution of 1868, which established a new judicial system.

Basic Common Law in NC

Although North Carolina is not considered a common law state, the state court system regularly applies common law principles in its rulings. In particular, North Carolina contract law has much in common with traditional common law contract law. Parties to a contract have considerable freedom of choice within the confines of the law. For example, even though the statute of frauds in North Carolina requires that some contracts be in writing, parties have the freedom to choose whether or not their contract will be in writing. Even contracts that are not required to be in writing may therefore be created orally. The terms of those contracts can also be chosen by the parties and then applied consistently with the law.
The application of common law principles in the field of torts in North Carolina is also in line with common law principles. North Carolina law resembles traditional common tort law in that it prohibits people from harming others and allows them to sue for compensation if they are harmed. There are several exceptions under the law in which it may be acceptable or actually required to harm another person. In addition, intentional torts are categorized as either direct or indirect. In general, tort law in North Carolina is very similar to common law principles of tort law.
Common law principles are also found in the North Carolina property law. As in common law property law, there are rules for determining how title to property is obtained and how property may be involuntarily transferred. North Carolina also applies common law rules to determine the payee under a deed of trust. Property law in North Carolina, however, differs from common law principles in some ways. One of the main differences between North Carolina property law and common law property law is that the state has a statute to divide marital property when a divorce occurs. Common law property law allows divorcing couples to resolve the issues of rights to property without state intervention.

NC Statutory Law vs Common Law

Among the multitude of decisions and opinions rendered by state and federal courts in North Carolina, the passage of legislation by the state government has a significant influence over our laws. The General Assembly enacts statutes, which are written laws that define and regulate actions that citizens are permitted, or prohibited, from taking. These may cover any number of subjects, including property rights, criminal offenses, or the authority given to various government agencies.
Sometimes, the laws passed by the General Assembly conflict with common law principles. Whether new laws override the common law can depend on several factors, including the text of the statute, the intent of the General Assembly, and any subsequent judicial rulings interpreting the statute. The test typically used by courts is whether the statute "evinces the intent, either expressly or by necessary implication, to supersede the common law." (Kiser v. McCoy, 348 N.C. 399, 409, 502 S.E.2d 431, 437 (1998)). This means that courts will look at the text of the statute to see if it directly or impliedly supersedes the common law.
When at least one court has considered this exact issue, it is likely that subsequent courts will defer to that court’s interpretation of the statute. For instance, in Castro v. Beaty, a trial court had to consider whether common law rules regarding the creation of easements were preempted by the Powers Act. 96 N.C. App. 35, 384 S.E.2d 802 (1989). The appellate court upheld the trial court’s ruling that the Powers Act and the common law were consistent, rather than opposite, and therefore both applied to the plaintiff’s claim. In the Court’s own words: The private road was created according to common law presumptions and the grantor’s intention is not contradicted by the provisions of the Powers Act. To the extent that North Carolina common law may have provided for the creation of a private road by prescription or the doctrine of prior use , the Powers Act does not act to alter those common law principles if an easement has been established in accordance with the Powers Act.
In addition to overruling the common law, state legislation may also add requirements to common law causes of action. For example, the common law of negligence requires that a plaintiff prove that the defendant was negligent, and that the defendant’s negligence caused plaintiff damage through a four-part test. The NC General Assembly has added an additional element to plaintiff’s burden of proof under the Rule of Substantial Certainty for premises liability claims. Common law required a plaintiff to show that the defendant property owner failed to exercise ordinary care in maintaining the premises. N.C. Pattern Jury Instructions § 104.10. The General Assembly has added an element to this common law analysis which places an even higher burden on plaintiff: "In order to recover for an injury sustained on the property of another, a plaintiff must prove that the defendant acted with ‘willful or wanton conduct.’ N.C. Gen. Stat. § 99B-4. . . . In North Carolina, willful or wanton conduct is defined as intentionally doing an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow." McHone v. Durham County Bd. of Educ., 158 N.C. App. 577, 578, 581 S.E.2d 91, 95 (2003) (internal quotation marks and citations omitted).
The fact that statutory law can override or add to common law case precedent is one of several reasons why it is important to have an experienced attorney who knows the law and can strategize the best course of action on your behalf.

Common Law Marriage in North Carolina

In North Carolina, common law marriage is no longer recognized. Before 2010, North Carolina was one of the few states in which a common law marriage could be formed. There, however, has been a big push that started in 1987 to change that and the General Assembly responded. The main goal of abolishing a common law marriage in North Carolina was to eliminate the complexity and confusion with proving the validity of a common law marriage in court. This has been upheld throughout the Court system in North Carolina so while you may still run into people who believe that it exists, it does not in North Carolina and the majority of states. It should also be noted that all states that previously recognized a common law marriage have terminated it in the last 50 years.
Technically speaking, a common law marriage is the "mutual consent and agreement" of two persons living together as a couple who intend on being married and hold themselves out as such. While the law in North Carolina no longer recognizes one, other states may. Importantly, our Court has held that out of state marriages are valid in North Carolina even if they may not be valid in the state they were entered into in. So a common law marriage entered into in a state where it is recognized will also be valid in North Carolina, despite the fact that North Carolina does not recognize common law marriages at all.
Suppose you are in another state where a common law marriage is legal and you fall in love and decide to live together. Suppose you decide to move to North Carolina after some time. If you decide not to get married in North Carolina you will not create a common law marriage by residing here as you have never intended on being married. You also will not be a common law married, if you intended on getting married, but just chose not to obey the process for doing so in North Carolina.

Federal Law Impact on North Carolina

Federal law interacts with and influences the common law system in North Carolina. For instance, numerous defenses to negligence claims derive from federal statutes. If a defendant’s negligence arises out of a defective product, the defendant is generally permitted to raise a defense based on the federal standard for compliance with the industry standard for manufacturing, installation, or maintenance, and any state regulatory standards.
Because the Constitution and other federal laws are the supreme source of state law in all states, including North Carolina, the foundation of the common law system in North Carolina is rooted in federal law. Federal and state judges determine questions of law based on case law precedent. For example, if a state judge hears an appeal from the decision of a lower court, the judge will look to decisions from other state courts in North Carolina to decide how a legal issue in the case should be resolved. The judge may also look to decisions from other states to see how legal issues have been decided in those states, and how similar legal issues have been addressed by state court judges in North Carolina. Additionally, the state judge may look to decisions from the United States Supreme Court and other federal court decisions in the Fourth Circuit (federal Appeals Court that has jurisdiction over North Carolina) for guidance. When federal legislation is enacted, federal courts interpret the legislation. The decisions of federal courts are binding authority, pursuant to the doctrine of stare decisis, in cases decided by state courts where state judicial authority is exercised. In the event of a direct conflict between state and federal law, federal law is supreme.
If there is a conflict between federal and state law, the first step is to determine if there is a conflict. In this regard it bears repeating that the doctrine of stare decisis provides that when a higher court decides a particular legal issue, the legal reasoning and result become precedent binding on courts of equal and lower rank. If the present case involves a conflict with earlier decisions of the United States Supreme Court on a constitutional question, the state court is bound by the Supreme Court decision. If the conflict involves an issue of statutory interpretation, the state court is bound by the decision of a federal appeals court in the Fourth Circuit on the correct interpretation of the federal statute.
If the state court must resolve a conflict between the United States Supreme Court and a federal appeals court with appellate jurisdiction over North Carolina, the state court is required to follow Supreme Court precedent, and the conflicting decision of the federal appeals court becomes effectively ineffective. When there is no direct conflict between state and federal law, but there is a conflict between the decisions of the United States Court of Appeals for the Fourth Circuit and the decisions of the North Carolina Supreme Court, a non-binding conflict exists, state law is not preempted, and the state law controls. When federal law conflicts with state law, the state court is technically not required to resolve such a conflict, because the basis for federal court subject matter jurisdiction is independent citizenship among the parties. However, exercise of state court jurisdiction is discretionary, and state courts tend to honor principles of comity, or mutual respect, between state and federal courts.

Conclusion: Is North Carolina a Common Law State?

Although North Carolina is very much a statutory state, it is still part of the common law system. To recap the history, Britain and the first English colonists brought the common law with them to America in the 1600’s. Over time, other colonies and states adopted various statutes to govern certain issues. The North Carolina General Assembly repealed many common law offenses in 1973, but not until after various appellate decisions in the 1960’s and 70’s began ruling on whether those common law offenses were recognized as criminal offenses in North Carolina. Those precedents remain the law in North Carolina today.
Also, the U.S. Constitution’s Full Faith and Credit Clause requires that North Carolina courts recognize the precedents set by the courts of other states . Thus, North Carolina remains subject to a variety of precedents from other states, making it difficult to overgeneralize what is and is not recognized as the law in North Carolina.
So is North Carolina a common law state? Our conclusion is easy, but the reasoning is not. In short, yes, North Carolina is a common law state. The problem is that it is not as simple as that. It is also a statutory state. But what statutes apply? Because statutes are not specific to every issue, there must also be a common law or precedent to apply in place of or to complement the absence of statutes. This is why North Carolina is a common law state.