Georgia’s Legal System at a Glance
Georgia is a common law state, meaning that many legal principles developed over time through court decisions or "common law." Despite being a common law state, Georgia is also referred to as a hybrid state, because it has also enacted civil law statutes which govern to the extent that they conflict with common law principles. The Constitution of 1777 established Georgia’s first common law jurisdiction. Article I of the Constitution of 1789 reaffirmed the common law jurisdiction and adopted the principle of checks and balances among the three branches of government. Georgia continues to recognize and uphold these principles.
Article VI, Section II, Paragraph VI of the 1789 Constitution provided that "in all cases where by the common law a special provision was made by the custom of England, for the judicial jurisdiction of any county, it shall be of like force and obligation within this State, but in other respects the common law shall cease to be in force…". The Civil Rights Act of 1867 further refined the application of the common law to Georgia, providing specifically that no rule known by the common law as "the rule in Shelly’s case" shall be of force in Georgia . The current Constitution continues to provide in Section II of the O.C.G.A. Chapter 1-1 that "[t]he laws in force at the Constitution shall continue in force until altered, amended, or repealed, except as to the matters enumerated in article I, Section II, Paragraph VIII of the Constitution [which includes certain rights]." This clause, however, is of little relevance, since Georgia judicial decisions are still governed by common law principles, except where statutory law provides otherwise.
While many primary source legal materials derive from English law, Georgia remains unique among other states that observe the common law tradition. Unlike their counterparts, Georgia courts are not bound by English precedent. Georgia legislation may overcome common law precedents as long as it is in effect and legislative intent is clear, despite the reluctance of Georgia courts to apply new legislation to amend existing (common law) precedent. Indeed, existing precedent may be overruled upon finding an interpretation to be erroneous or unwise. Courts in Georgia will often look to other states, especially those that observe a common law tradition, to find persuasive authority for deciding a case.
The Definition of Common Law
Georgia is a common law state. To understand why, it’s important to know what common law is and how it works.
Common law is a body of unwritten laws and principles that are in effect as a result of widespread acceptance and customs. In other words, it encompasses the societal practices and previous court decisions that have helped shape a practical legal system, and has done so without the involvement of a legislative body. At least in theory. Common law’s roots can be traced back to England, to a time when there was no formal law code. Local norms and guidelines for acceptable behavior regulated the populace in each region, with no unified standard. If a person was accused of committing a crime or violating a social code, he or she was subjected to a jury of peers who would decide culpability based on the familiar practices judge and jury had in a similar case. If there was any prevailing arbitrator regarding the situation, it would be a member of the town with a reputation to uphold, such as the blacksmith. Otherwise, the matter might be turned over to the church for consideration. Over time, these customs were put into writing, either by the (often capricious) decree of a sovereign or a written record of the cultural norms. Once it was recorded, the customs became statutory law, but only as they were effectively accepted by the people. Common law is a common law because it grows out of the common society. Essentially, it is codified societal norms. Without a doubt, there are many valuable lessons to be learned from traditional European common law. Regardless of its age and its historical value, however, its importance for the American legal system is through the insurance industry and how it impacts law today. All of the U.S. states, Georgia included, have borrowed heavily from American common law traditions. The premise is that laws should be kept in line with general practices rather than ever-present enforcement by a centralized law-making body. This is true of Georgia law, where the chief legal publications and the laying of permanent Georgia law are handled by individual accounting firms. As an example, while Georgia law went through a huge change in the late 1960s, there’s still a statute as to how newspapers are to be run in the state, dating back to 1810. But the real determiner of legality and legitimacy in the eyes of Georgia’s courts comes down to what the courts deem common sense. The bottom line is that although Georgia may have codified laws regarding specific matters, these laws hold no value outside of a practical application of common law. If the statutes aren’t relevant, the courts can dispense with them and proceed with a common sense ruling – which brings us back to our original question.
The Issue of Common Law Marriage in Georgia
As stated above, the law of Georgia is primarily codified (put down in the form of statutes) in books of laws called the code. The code itself does not have a complete set of rules for every situation that can occur. Without meaning to writing a book about it, Georgia judges can fill in the gaps in the code with rules they have established as part of their decisions in cases. These rules are called "common law." The term "common law" would seem to imply that common law is just "the way that the common people" do something. However, the name comes from England, where there was a people’s court (a panel of nobles who met once a week to judge disputes) that created common law. As time went on, a number of judges in England formalized the law that was being created by judges, until a system was developed where English judges would look to a book of previous rulings by judges in other cases, called a reporter, while making decisions in their current cases. This gave rise to rules of common law, which were, in essence, the law of the land at that time in England before laws were written into a code. Georgia has its own set of common law rules, some of which differ from other states that are based on English common law. In Georgia, one form of law is called "common law marriage." In the colonial era, all American colonies were based on English common law. As a result, Georgia’s rules regarding common law marriage at that time were based on English common law marriage. After the United States won independence from England, Georgia still followed English law, including common law. The new United States formed into federal states, each of which kept its own system of laws. Georgia was no different. While the law continued to be based on English common law, definitions of what was considered a common law marriage changed as England continued to change its rules. Eventually, the legislature of Georgia passed several laws, which made it so that people were no longer considered married if they met the definition of common law marriage. The definition of common law marriage and the exceptions to the prohibition of common law marriage became a bit complicated. In 1977 Georgia officials, presumably in an effort to make the law clear-cut, passed a law that disallowed common law marriages in Georgia. For those people who married under the common law before the law was passed, however, Georgia recognized the marriage as valid. To show how complicated this law had become, let’s take a look at the wording of the law itself: "§19-3-1.1. Common-law marriage prohibited after January 1, 1977; recognition of common-law marriages contracted before such date. (a) No common-law marriage shall be recognized in this state as to any individuals who contract marriage or purport to contract marriage on or after January 1, 1977; provided, however, that such prohibition shall not affect or terminate any common-law marriage theretofore entered into by any individuals who were otherwise competent to contract marriage. No marriage contracted in any country or state outside of this state shall be deemed to be a common-law marriage unless such marriage would have been lawful if it was entered into in this state prior to January 1, 1977; provided that no marriage which has been considered a common-law marriage in another state or country at any time shall be deemed to be a common-law marriage in this state after January 1, 1977 or at any other time if such marriage was prohibited by subsection (a) of this Code section as of January 1, 1977." Now, as to whether common law marriage is recognized in Georgia, despite the convoluted wording of the law, there is a simple answer- NO. Common law marriage was completely banned in Georgia post-1977, and after that date, no form of common law marriage exists. If you live in Georgia and hear someone say that they have a common law marriage, you now know that they are joking (and if you are in on the joke make sure you don’t mess up the punch line, because it’s funny). As to the idea that someone may encounter in a movie or novel about how people who have been married in the past but are presently unmarried may have a "common law divorce," " that sort of thing does not exist in Georgia, either. Georgia does not allow common law marriage, and does not have a need for a "common law divorce," since the concept of common law marriage has been dead in Georgia for 38 years.
How Precedent and Judicial Law Work in Georgia
The state of Georgia adheres to the common law system not only broadly, but also in its constituents. In much the same way that Georgia law is based on statutes and legislative decisions made on those statutes, judges in Georgia base their decisions on common law principles derived from judicial precedent as well as previous judicial decisions in Georgia courts. Georgia Common Law, as evidenced through the decisions of the Supreme and lower courts, demonstrate that judicial decisions shape the law of Georgia in meaningful ways.
Judicial decisions impact the law of Georgia in several major ways. First, certain decisions actually outline the law of some areas despite the absence of any Georgia statute. Second, Georgia judges often employ judicial precedent to interpret a statute, or a portion of a statute, to which some ambiguity may be attached. Third and lastly, Georgia judges sometimes must interpret conflicting statutory provisions, or interpret the meaning of a new provision, by considering what the law was before the passage of the new statutory provision.
The Georgia Common Law asserts that past judicial decisions including those made by the Supreme Court of Georgia are binding. Stare decisis is one of the primary components of the Georgia Common Law in that Georgia law requires that lower courts follow Georgia Supreme Court rulings on certain matters and that conflicting decisions of lower courts on those issues must be overruled. The Georgia Supreme Court is the highest court in the state and the decisions of the court are binding in Georgia, being final unless and until they have been overruled by the Georgia Supreme Court or by legislative action.
There is a hierarchy to the judicial system in Georgia. The Supreme Court decision is the highest law in Georgia that all lower courts must adhere to in any ruling. The decisions of the Supreme Court are binding on all lower courts including probate courts. Intermediate appellate courts make rulings that are considered to be authoritative unless and until they are overruled by a higher court. Trial courts are the lowest in the hierarchy of the court system. Therefore, their decisions have no authority over other courts in Georgia.
In conclusion, Georgia may be a statutory state as it is founded on statutes, or judicial decisions. The influence of the Supreme Court and other lower courts provides enough synergy for the integration of the two judicial systems to flow cohesively and establish Georgia Common Law as a valid and reliable legal standard. The combination of statutory law and judicial decisions dictates the law of the state.
Differences Between Common Law and Statutory Law in Georgia
Common law and statutory law coexist in most U.S. jurisdictions, with some states relying heavily on one over the other. In Georgia, the distinction is of particular interest because Georgia is one of few states that actually enshrines common law as a legal source in the state constitution.
As previously mentioned, Article 1, Section 1, Paragraph 2 of the Georgia constitution, adopted in 1983, declares that "General law shall be construed to neither enlarge nor diminish the right . . . ." The plain language leads to the conclusion that Georgia’s legislature is bound by common law when drafting new law. In Georgia, an individual claiming a right based on common law therefore must prove that right exists in order to assert and vindicate it. However, that does not mean that Georgia legislatures are without ability to create new rights and set down new laws.
When Georgia lawmakers adopt a statute affecting an existing common law right, such an enactment must be in harmony with the existing common law. For instance, in Kowalewski v. Downey, 278 Ga. App. 671, 629 S.E.2d 409 (2006), the Court of Appeals of Georgia held that a statute providing for liability when an accident victim had violated certain laws, was intended to codify the common law and did not establish or recognize new rights.
On the other hand , courts have found instances when statutory law expands beyond the limits of common law, providing additional rights and remedies to citizens. In Goldstein v. Bank of Am. Corp., 284 Ga. 446, 668 S.E.2d 662 (2008), the Supreme Court of Georgia found that a statute allowing more than one named beneficiary of all retirement fund accounts combined with specific language giving a named beneficiary a right of survivorship grants a nonspouse a property right superior to that of heirs of the deceased participant. Similarly, in Lake Bluffs Homeowners’ Ass’n v. Landers, 283 Ga. 578, 662 S.E.2d 584 (2008), the Supreme Court of Georgia held that a statute creating a statutory lien on real property for unpaid homeowners’ association dues provided a cause of action for violation of statutory duty despite not having a counterpart under common law.
Georgia constitution’s unique membership of common law as a legal source, when viewed together with Georgia state statutes, presents a seemingly balanced division of power between the courts and the legislature. While Georgia courts will not necessarily defer to Georgia Statutes that conflict with existing common law, they will uphold a statute when existing common law rights have been codified.
The Relevance of Common Law to the Legal System in Georgia
The impact of common law in Georgia can be observed in specific areas. In the realm of contract law, the laws of contract cannot be flexible and subjected to support public policy or protect a specific class. The purpose is to ensure freedom for parties to make contracts on terms they see fit. The enforcement of binding contracts takes priority over policy and morals, even to the extent of enforcing illegal contracts. Related to contract law is tort law in Georgia which heavily relies on common law. For example, negligence is defined as "the unwarranted failure to exercise ordinary care" and in Georgia, this liability applies to negligence of a person leading to injury or loss. Family law in Georgia also demonstrates the existence of common law when it comes down to guardianship and succession.
Georgia recognizes the doctrine of medical malpractice with regard to professional negligence by physicians. Even though courts decide when a standard of care has been breached, the standard of what risk is accepted, is determined by a judge and jury by reference to the uses of medical professionals or specialists of the same skill and talent. There are no statutory laws or rules for professional negligence for physicians but there exists a set of principles which create the standard of care to be exercised by medical professionals. In essence, the court determines the legal standard while the Medical Board regulates the practice. Georgia has established the "reasonable person test" by the common law to apply to situations of negligence, meaning that an error in judgment must be determined and then compared against that of a reasonable person. Through these doctrines, Georgia practices common law even though it is not characterized as a common law state.
The Future of Georgia in a Common Law System
As Georgia holds steady as a common law state, its official posture does not necessarily signal the direction the state’s legal framework will take in the future. It is possible that the legislature will decide to amend Georgia Code Section 1-1-3 to expressly permit certain forms of civil suits despite the lack of jury trial provisions. The General Assembly, being the body that controls what causes of action citizens can bring, may be influenced to allow more actions as public opinion evolves . As judicial opinions regarding modern day problems evolve, Georgia courts may find new causes of action or ways to seek redress by expanding the scope of existing common law. Of course, the effect of public opinion and judicial decisions depend on whether there is an uphills battle in amending the Code to allow for these actions. That battle may not be as difficult if public opinion already swings in favor of, and the judicial branch supports, expansion of causes of action.