This essay has been submitted by a law student. This is not an example of the work written by our professional essay writers.
Customs are embodied through case law and act as precedence
Common law is a body of law which is based on general principles and customs; this customs are embodied through case law and act as precedence to many situations which are not covered by statute. In the system of common law, when courts make rulings on cases, the rulings become part of law and are applied in subsequent cases to solve disputes. This use of precedence is referred to as stare decisis. Since the middle ages, common law has been applied throughout the courts of England and it’s also used in the USA justice system; many Commonwealth countries use common law as well.
The phrase common law is very often used in contradiction with civil law. Civil law is related mainly to the code based lawful systems used in continental Europe. In America it was adopted into the state and federal constitutions after the American Revolution. A good example of a common law court is the Supreme Court. In the American Justice System, common law forms one of the two systems of law; the other is Equity.
Common law is composed of Criminal and civil law. Civil law refers to contract law as well as tort while criminal law is more linked to law of crime. Since common law is created by judges, it’s not normally found in a form which is written as compared to statutory law. However the principles of common law develop progressively based on decided cases: in other words the inherent flexibility and adaptability of common law has reinforced the English legal system and allowed continuity.
The future of common law is only limited by the process of predisposition to federal statutory enactments common in development of American law. The vast amount of complexity and detail is usually found in American laws and directives as a prerequisite of modern government. Due to this reasons, the phase common law is best understood as a reference to methods of analysis and interpretation applied by judges to interpret statutes as well as understand them. Judges will continue to guide and shape future development of American and English law founded on principles which are inherent in common law.
Comparison of statutory law, common law and regulatory law
Statutory law overrides common law, since it’s written and passed by legislature. However, many statutes are founded on common law tradition, and judges interpret them according to this tradition. Regulatory law is applied by the executive branch of government in accordance with their rule making power.
Comparison of common law and civil law
The system of common law places a lot of weight on court decisions while civil law by contrast judicial precedence is not treated with much weight. This means that a judge is freer to interpret statute laws independently in any given case.
There is a tendency for common law to apply an adversarial system whereby two sides argue their case in the presence of a judge. On the other hand civil law uses inquisitorial structure of proceedings which has an examining judge or magistrate serving two roles since he creates an argument for both sides throughout the investigation phase.
The magistrate who is examining then presents facts and details to the bench who then decide on whether a trial shall be undertaken. Thus in the inquisitorial system there is a high likely hood of the bench being biased during the process of the trial since they have already read the magistrates dossier.
Unlike common law case proceedings the leader of the bench in Inquisitorial structure is empowered to interview witnesses as well as give comments as the trial proceeds. In the adversarial system, the sentence and conviction is often released by the jury with the approval of the president of the bench.
Comparison of common law and equity
Most courts are allowed to use both equity and common law as long as the correct procedural law is followed. Nevertheless, the major distinctions between equity and law remain important especially in the following cases:
Categorizing rights to property e.g. statutes relating to property have equitable title as well as legal title. Different people may hold either of the ownership rights.
Determining if 7th amendment rights to a jury trial is appropriate (identify if it’s a common law claim) or if the case will be decided by a judge (identify if the cases is relating to equity).
Common law principles
Common law adjudication:
In jurisdiction of common law several stages of analysis and research are done so as to find out “what law is" in the case being observed. The 1st stage is ascertainment of facts. Relevant cases and statutes are then allocated. Analogies and principles are then extracted by various courts of what they value as important so as to determine how the next court will rule given the facts and details of the present case. Later decisions as well as those of the higher courts carry more weight than decisions made earlier by lower courts. Finally determination of “what law is" is made and it’s applied to the facts.
Common law progresses to meet changing needs of the society:
Unlike statute law, common law is more flexible than statute law. They are not fully bound by precedence and can (if an extremely good reason is shown) revise and reinterpret the law without the intervention of legislature. Therefore it adapts to new legal, political, and social philosophy. In addition, common law changes gradually with time without having a sharp break thus causing disruptive effects.
Limits of Stare Decisis (Overruling Precedence)
In the event of any dispute in decisions to be made by panels in the US federal courts, the earlier panel decision takes priority unless a higher court or the court of appeal overrules such a decision. In other cases, other courts such as the Supreme Court and court of customs always sit en banc to make later decision controls. In essence the rulings made by these courts overrule all other previous decisions.
The stare decisis doctrine also referred to as judicial precedence is a mandatory rule which necessitates the judge to use earlier cases as a reference so as to find out material facts in past cases which are similar to present the case and in the event of finding similarities between the current case and past cases; he should make a ruling based on how the earlier case was judged. In this way the earlier decision made by judges stands as it was made.
This doctrine has been referred to as sacred principle in English law. The English courts developed it as a method of administration of justice that would enable magistrates as well judges make decisions in a way which is objective and standard; instead of personalized or subjective decisions.
Common law application in commercial economies:
The common law system is strengthened by its reliance on judicial precedence and it’s a vital part of the robust growth of commercial systems in the United States as well as the UK. Since there is a common law to give adequate guidance on a lot of commercial issues, many commercial parties can determine if a planned course of action will be unlawful or lawful. …..This ability to predict enables commercial entities to get close to limits of law e.g. many commercial contracts tend to be more economically efficient and make greater wealth since the parties involved know ahead of time the legality of transactions which they are conducting. In contrast, equity and statutes are determined anew every time they arise.
This makes it very hard to predict the outcome of cases. This is why the state of New York often uses the “choice of law" cause in commercial contracts to reduce uncertainty. Due to its record as a commercial center, New York’s common law has predictability as well as depth which are not common in other jurisdiction. Likewise corporations often opt to use Delaware corporate law as well as contracts relating to corporate law issues (such as acquisitions and mergers of companies) include Delaware option of law clause due to its detailed body of law on commercial issues.
Ratio decidendi referrers to material facts within a case and the ruling of the judge based on those facts and details of the case; the material facts of the case enable the judge to form a rationale which he then uses to make a ruling. The ratio decidendi of a decided case constitutes the legal rule, or principle, for the decision of future cases with similar material facts. In other words, the decision is a precedent to be followed when deciding such cases.
In common law a precedent may be:
(a) An binding precedent; the judge must follow whether he approves of it or not. It is binding upon him and excludes his judicial discretion for the future. These, generally speaking, are decisions of higher courts.
(b) A persuasive precedent; if it is one which the judge is under no obligation to follow but may however take into consideration, or follow, in the course of considering his intended decision. These, generally speaking, are decisions of lower courts and the decisions of superior courts in the Commonwealth.
A precedent may also be classified as:
(i) An original precedent; if it is one which creates and applies a new legal rule; or
(ii) A declaratory precedent; if it is one which does not create a new legal rule but merely applies an existing legal principle.
Common law and Obiter Dictum
Obiter Dictum is a "by the way" statement made by a judge before delivering his judgement with a view to re-enforcing or strengthening his reasons for the decision that he will make is known as "the obiter dictum" of the case. If more than one such statement is made, they are known as obiter dicta. An obiter dictum is defined by Osborne's Concise Law Dictionary as "an observation by a judge on a legal question suggested by a case before him, but not arising in such a manner as to require decision.
Although an obiter dictum does not constitute a legal rule for the decision of future cases it may constitute a "persuasive precedent" for a relevant later case. In other words, it may be used by an advocate to "persuade" a judge hearing a case to accept as a legal rule the view it expresses.
Even if obiter dicta made by a judge happen to be truthful statements of law it is not is not subject to judicial decisions unlike ratio decidendi. In the common law doctrine of stare decisis remarks which constitute obiter dicta do not legally bind the judge.
An example of a case in point where a court opinion may consist of obiter dicta is where a court decides that it does not have authority to hear a case or discharges the case due to a technicality. In addition, the court in such a case issues rulings based on the qualities of the case, such rulings may amount to obiter dicta. Fewer clear-cut occurrences of obiter dicta take place where a judge says a remark with the intent of providing context for other parts of the ruling, or makes a systematic exploration of pertinent areas of common law. An additional example would be in a case where the judge, in illumination his ruling, gives a hypothetical set of facts as well as details and demonstrates how he or she thinks the law would be appropriate to those facts.
In making decisions, courts from time to time quote passages of obiter dicta which are commonly found in the transcripts of the rulings from past cases, sometimes without acknowledging the quoted transcripts’ status as obiter dicta. Furthermore, quoted passage or text of obiter dicta may become a component of the ruling in a later case; this is however dependent on how the latter court actually decided and how that court applied the common law rule found in the quoted passage.
Cite This Essay
To export a reference to this article please select a referencing style below: