The Common Law was the Law of Old England... It became the basis for the Law in America
Common Law is sometimes contrasted with the Civil Law which was the basis for the Laws in Europe...
Under Common Law the courts would hear cases and decide them...and that Ruling would be used in future cases to determine the outcomes...
The idea was if a court ruled one way in the past...future courts should follow that ruling...
This is sometimes called Stare Decisis ... Or "Let the Ruling Stand"...
Eventually, a large body of decided cases developed which were published as "Court Reports" for various jurisdictions...
Lawyers and Judges would consult these "old rulings" to decide how the current case before them would be decided... This was called "Case Law"...
Of course sometimes there would be conflicting rulings...
These would be resolved at the Appeals Court level. And to this day the US Supreme Court often decides cases where one court ruled one way and another court another way...
But Common Law is not the only way Law is made... There is also the Legislature ...
Congress or the State Legislature can OVERRULE Common Law Precedents by passing a STATUTE...
A Statute is a Law passed by the legislative body that may over rule Common Law...or it could "Codify" these old case law rulings...as Statutes
Legislation is often said to be like a Bull Dozer...going through a Wild Flower Garden...which is the old Common Law...
So Hundreds of Years of Common Law decisions can be overturned by one legislative act...!
Of course, every case is different...so lawyers and judges STILL "look back" at Common Law Precedents to "interpret" legislative statutes...to determine "Intent" of the Legislature...
The Common Law is not dead~ But it is seriously limited as more and more legislation goes on the Books...
Both Common Law case law and Legislation are subject to review for Constitutionality...This is the job of the higher courts with the US Supreme Court being the Court of Last Resort...
In Europe the Civil Law is basically ALL legislative...
Huge "Codes" are passed by the King or Ruling Bodies... And these have to force of Law until they are revised by another Code of Laws...
So think of Common Law as an Old Wild Flower Garden...with the Legislature having the power to Tear Up that Garden by Legislation...
But the old Common Law is still foundational in our Legal Thinking...Even Today...
Common Law is sometimes contrasted with the Civil Law which was the basis for the Laws in Europe...
Under Common Law the courts would hear cases and decide them...and that Ruling would be used in future cases to determine the outcomes...
The idea was if a court ruled one way in the past...future courts should follow that ruling...
This is sometimes called Stare Decisis ... Or "Let the Ruling Stand"...
Eventually, a large body of decided cases developed which were published as "Court Reports" for various jurisdictions...
Lawyers and Judges would consult these "old rulings" to decide how the current case before them would be decided... This was called "Case Law"...
Of course sometimes there would be conflicting rulings...
These would be resolved at the Appeals Court level. And to this day the US Supreme Court often decides cases where one court ruled one way and another court another way...
But Common Law is not the only way Law is made... There is also the Legislature ...
Congress or the State Legislature can OVERRULE Common Law Precedents by passing a STATUTE...
A Statute is a Law passed by the legislative body that may over rule Common Law...or it could "Codify" these old case law rulings...as Statutes
Legislation is often said to be like a Bull Dozer...going through a Wild Flower Garden...which is the old Common Law...
So Hundreds of Years of Common Law decisions can be overturned by one legislative act...!
Of course, every case is different...so lawyers and judges STILL "look back" at Common Law Precedents to "interpret" legislative statutes...to determine "Intent" of the Legislature...
The Common Law is not dead~ But it is seriously limited as more and more legislation goes on the Books...
Both Common Law case law and Legislation are subject to review for Constitutionality...This is the job of the higher courts with the US Supreme Court being the Court of Last Resort...
In Europe the Civil Law is basically ALL legislative...
Huge "Codes" are passed by the King or Ruling Bodies... And these have to force of Law until they are revised by another Code of Laws...
So think of Common Law as an Old Wild Flower Garden...with the Legislature having the power to Tear Up that Garden by Legislation...
But the old Common Law is still foundational in our Legal Thinking...Even Today...
No comments:
Post a Comment