Back in the days of Matt Dillon and Festus (for those of you who have ever watched “Gunsmoke”), there was no such thing as a statute book. There was no place where actual ‘laws’ were written down. Instead, a body of “common law” developed from decisions made by judges on various cases.
As an example, someone would come to the Marshall’s Office to report a stolen horse. There wasn’t any written statutes like today that list all the elements of theft. But, everyone knew that, at ‘common law,’ you couldn’t steal a man’s horse. So, the Marshall would go and arrest the bad guy, and put him in jail to wait for the ‘circuit judge’ to arrive. Back then, judges actually rode from town-to-town in their ‘circuit’ to dispense justice. It may take months before the judge arrived in the town where the bad guy was being held.
Once the judge did arrive, there would be a trial. The judge/jury would hear the evidence, and there would be a decision of guilty or not guilty. If the bad guy was found guilty and he appealed to a higher court, that ‘appellate court’ would ultimately write a decision about the case. Appellate court decisions were written down and published.
After a while, it would become common knowledge (or, common law) that if a person took the property of another, with the intent to permanently deprive that person of their property, they could be convicted of the crime of theft. So, even though there weren’t statute books, people could consult the common law-court decisions about various cases-to see if a common law crime had been committed.
Today, common law crimes have been abolished in all states, replaced by written statutes passed by legislatures, and published in statute books. However, many of these statutes are based on the old common law. Many common law procedures though, (for example, the right to resist an unlawful arrest) are still valid.
Perhaps the best known example of the common law, would be common law marriages. Each state had its own rules, but generally if a man lived with a woman for a defined period of time (usually years), they would be considered married. For real! While the ability to obtain a common law marriage has been abolished in most states, all states recognize a common law marriage that had taken place while they were still allowed. Finally, a couple who has become married by common law cannot simply dissolve the marriage by no longer living together; they must obtain a legal divorce!
Now that common law has been abolished, there are basically two types of law: Civil and Criminal. Criminal law involves crimes against the public, or society as a whole. They are public wrongs that interfere with an orderly society. They are prosecuted by the State or District Attorney. Punishment for violating criminal laws include jail or prison, fines and possibly death.
Civil law on the other hand, involves wrongs that do not offend society as a whole, but rather are between two or three people. In other words, it involves private wrongs, as opposed to public wrongs. This is the type of law where one person can file a lawsuit against another. Where in criminal law, a person commits a crime, in civil law they commit a ‘tort’. Unlike violations of criminal law, the basic remedy (punishment) for civil law violations is money. A person cannot be put in jail/prison-or be put to death for that matter-if they are successfully sued.
Sometimes, civil and criminal law overlap. For example, if Simon beats the snot out of Randy, he could be arrested for the crime of battery. He has offended society in the sense that the public does not want someone going around pounding on someone else.
On the other hand, putting Simon in jail for this crime (society’s punishment for violating its criminal laws) doesn’t do much for the pain and suffering-among other things-that Randy now has to endure. So, Randy can also sue Simon civilly, for the tort of battery. Simon would have to pay Randy for the ‘damages’ he caused.
Perhaps the best known example of the overlap between criminal and civil law is the O.J. Simpson case. O.J. was found not guilty of the crime of murdering his wife Nicole, and her friend, Ron. Presumably, this was because the jury believed that the prosecution did not prove the case ‘beyond a reasonable doubt’ – the standard that requires the most proof.
On the other hand, O.J. was found liable (notice the difference in terms: guilt-for crimes; liable-for torts) for the tort of ‘wrongful death’ of the same two people, pertaining to the same case. That is because in civil law, the ‘burden of persuasion’ is the much lesser standard of ‘preponderance of the evidence’, which requires much less proof than ‘beyond a reasonable doubt.’
In summary, civil law settles disputes between individuals, while criminal law addresses crimes against the public good.