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DANA B. TASCHNER

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Common Law

 
 

The common-law legal system forms a major part of the law of many countries, especially those with a history as British territories or colonies. It is notable for the inclusion of extensive non-statutory law reflecting a consensus of centuries of judgements by working jurists.

History of the common law

The common law originally developed under the auspices of the adversarial system in historical England from judicial decisions that were based in tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. Common law may be unwritten or written in statutes or codes. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence and as developing the body of law recognizing and regulating contracts. Today common law is generally thought of as applying only to civil disputes; originally it encompassed the criminal law before criminal codes were adopted in most common law jurisdictions in the late 19th century. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law.

Before the institutional stability imposed on England by William the Conqueror in 1066, English citizens were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a caldron of boiling water or some other "test" of veracity ( trial by ordeal). If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.

In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate reliably criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems.

Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously, with Thomas Becket, the archbishop of Canterbury. Things were resolved eventually, at least for a time, in Henry's favor when a group of his henchmen murdered Becket. For its part, the Church soon canonized Becket as a saint.

As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens.

In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict. In the United States, parallel systems of law (providing money damages) and equity (fashioning a remedy to fit the situation) survived well into the 20th century in most juridictions: In the federal courts there is no separation between law and equity; Delaware still has separate courts of law and equity, and in many states there are separate divisions for law and equity within one court.

Common law legal systems

The common law constitutes the basis of the legal systems of: England and Wales, the Republic of Ireland, the states of The United States (except Louisiana), Canada (except Quebec private law), Australia, New Zealand, South Africa, India, Malaysia, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries. Essentially, every country which has been colonised at some time by Britain uses common law except those that had been colonized by other nations, such as Quebec (which follows French law to some extent) and South Africa (which follows Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law.

The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The former Soviet Bloc and other Socialist countries used a Socialist law system.

The opposition between civil law and common law legal systems has become increasingly blurred, with the importance of jurisprudence (almost like case law but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for instance, in matters of criminal law).

Scotland is often said to use the civil law system but in fact it has a unique system which combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707. Scots common law differs in that the use of precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic legal systems operate in Quebec, Louisiana and South Africa. These systems are referred to as mixed legal systems

The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case Li v. Yellow Cab Co., 13 Cal.3d 804 ( 1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)

The state of New York, which also has a civil law history from its Dutch colonial days, also began a codification of its laws in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherlands was settled by the Dutch and the law was also Dutch. When the British captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherlands -- as a punishment unique in the history of the British Empire -- they forced the English common law upon all the colonists, including the Dutch. This was problematic as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.

Basic principles of common law

Statutes which reflect English common law are understood to always be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing case law and custom. This can readily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many US states. Codification is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practiced in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practiced in England only after that date.

By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the damages or compensation available are limited to those outlined in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly -- that is, limited to their precise terms -- because the courts generally recognize the legislature as being supreme in deciding the reach of judge made law unless such statute should violate some "second order" constitutional law provision (compare judicial activism).

Where a tort is grounded in common law, then all damages traditionally recognized historically for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement, and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death.

Works on the common law

The definitive historical treatise on the common law is Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765 - 1769. Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and statutory English law. The U.S. Supreme Court judge Oliver Wendell Holmes Jr. also published a short volume called The Common Law which remains a classic in the field. In the United States, the Corpus Juris Secundum is a compendium of the common law and its variations throughout the various state jurisdictions. The American Law Institute publishes Restatements of the common law which are often cited by American courts and lawyers when they need to invoke uncodified common law doctrines.

The Common Law and the Constitution

The "organic republic" created by the Declaration of Independence was called the United States of America (this is the people without a government). This republic is mentioned in the preamble to the Constitution. Along with another entity called the United States. The United States is the federal government. The preamble designates the two entities in this manner "We the People of the (Federal Government)United States , in Order to form a more...establish this Constitution for the (organic republic or people)United States of America.

Defintions: Bouviers for United States of America & Title 28 U.S.C. Section 3002(1)(15)(A) for United States.

The next mention of common law is found in Article 1, Section 9, Clause 2. The Writ of Habeas Corpus was preserved as a method of the common law jurisdictions to claim the 7th Amendment right to trial by jury.

Defintions: Blacks for Habeas Corpus Ad Subjiciendum (the great writ).

Article 3 addresses the power of the Federal courts over certain common law actions in Section 2, Clause 2 "...foreign states, Citizens or Subject." This article also allows the Federal Government to set up a "civil" law system (similar to the one that existed in England). This was done by the existing civil law states (people of the United States) surrendering some of their legal authority (civil and police power) to the Federal government.

Defintions: Blacks and Bouviers defining "states" as being foreign to each other - meaning the common law states and civil law (municipal) states. (diversity of citizenship claims in Federal Courts).

Article 4, Section 1 covers full faith and credit for the existing jurisdictions (common law courts) "Full faith and credit shall be given in each State to the public Acts, Records, and judicial proceedings of every other State."

Amendment 1 - stipulates that the people have a right to "petition the Government for a redress of greivance". The "petition" referred to here is the same petition found in Article 1. "The Great Writ."

Amendment 2 refers to the a "free state". This is the people of the United States of America forming a militia composed of the citizens of the free states. The common law principal was that all men were members of the militia subject to activation in time of invasion or when the public safety required it. The free states were the common law jurisdictions existing at the time the Constitution was written.

Amendment 7 refers to the jury trial of 12 men of the county who were members of the common law jurisdiction. The judge at common plea issued the Writ of Habeas Corpus - the appeal was to the jury of 12 men (who had the power to overturn the court order).

Amendment 9 refers to the right to create "free states" or common law jurisdictions. This was the method of self government that was protected by the Constitution.

Amendment 10 refers to all issues not within the Constitution. Giving the states and the people the authority to create laws where the Constitution, treaties and laws of the United States do no apply (or do not exist).

Amendment 11 limits the judicial power of the United States to actions being prosecuted at common pleas. The courts of the United States have "original" but not "exclusive" jurisdiction over these actions at common law. This is called "concurrent" jurisdiction. Seperates the "police power of civil courts" from the "judicial power at common plea".

Amendment 16 gives Congress to power to tax profit "outside" of the United States. Extends taxing power (excise tax on profits) to equitable and common law entities.

Civil Law State vs Common Law State

The civil law states are governed by a written code. This code is called "civil law". These states have civil courts and civil actions. The civil "power" is authorized by the Constitution (at that time these were mustly municipal corporations created for governing). The United States was given the power to set up court systems that were inferior to the Supreme Court. The effects of the 14th Amendment were that these civil states no longer had two courts systems (common law and civil law). The clause that prevents the "states of the United States" from granting dual relief is the equal protection clause(a state may be a civil law state or a common law state but not both).

The common law states are societies that were ruled by "court decisions" and not written code. The effect of the suspension of Writ of Habeas Corpus during the civil war was that these common law states because subject to civil law (military law and congress created law) - and therefore ceased to exist. After the civil war the Writ was restored but a war weary people failed to reoganize their common law jurisdictions.

The civil code was refined by the Romans because it allowed dual jurisdictions and was so good for controlling people. The first 100% civil law state in the United States was the State of Louisiana. All of the states of the United States are civil law states.


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