The Common Law

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      Stare decisis et non quieta movere[1]


      Describe The Common Law here.

      Ah. Well. Glad you asked. But before you do, allow me to see if there is any binding precedent that would prevent this court from granting that motion...

      The Common Law (TOW link) is the system of law deriving from the traditional "common" laws of England. Originally peculiar to that country, the common law was spread around the world by The British Empire, and is used in some form in 55 jurisdictions around the world. English-speaking tropers will be familiar with it, as it is the law used in the United Kingdom (except Scotland—kind of...), the United States (except Louisiana—kind of), Canada (except Quebec...sort of), Australia, New Zealand, Pakistan, Malaysia, Burma, Nigeria, Ireland, Israel (...for the most part[2]), most former British African colonies (excepting Sudan,[3] Egypt,[4] and South Africa[5]) and some international organizations.[6] However, the largest common-law country is in fact India, which uses the common law in all cases except for "personal" or family law (where the law of a person's religion applies; it can get quite confusing). In all, about two and a quarter billion people live in common law jurisdictions. Since this part of the wiki chiefly covers media from the English-speaking world, the common law will show up in a lot of media.

      As much as the common law seems almost intuitive to people living in these countries, it has a number of odd features. Chief among these is the principle of stare decisis: the decision must stand. This means that courts are required to follow the precedent established by previous judgments, the idea being that if two similar cases come before the court, they ought to be decided the same way both times.[7] What this means, as a practical matter, is that in common-law systems, judges effectively make laws: once an issue comes before a common-law court, later, similar cases must be decided in the same way. So when a new situation arises, each side generally tries to make the case that the new situation is similar or dissimilar to a situation in one old case or another; the analogy the court likes best stands for all future similar situations.[8] These decisions are regarded as law within their jurisdictions.

      Decisions in an area of the law traditionally left alone by legislatures like torts or contracts can be overturned by statute. Interpretations of statutes can also be overruled by amendment (although this can be tricky if the statute in question is a constitution, which may have high hurdles to amendment). A decision may also be overturned by a higher court. A court's ability to overturn its own precedents varies among jurisdictions; the House of Lords was strictly bound by its own precedents while it was the UK's court of last resort, for example, but the Supreme Court of the US and most supreme courts of the American states are free to overturn old decisions based on statute law and constitutional law (particularly the latter), on the grounds that the previous decision might itself have been contrary to the proper interpretation of the statute/constitution. Decisions based entirely on common law (i.e. previous court decisions), however, cannot be reversed (not that too many of those show up, particularly in federal court). In the United States, the Federal Circuit Courts (i.e. the intermediate appeal level between Federal District Courts, where the actual trials take place, and the Supreme Court) can overturn precedent by going en banc. Basically, going en banc means you have to get over half the judges in Circuit together to agree to rehear an appeal to determine if they are going to change the law of the jurisdiction.[9] However, they can only do this once per issue; once a court has decided a case en banc, that decision stands unless the Supreme Court overrules the decision or overrules a bit of case law vital to the decision (or, of course, if the statute or constitution is changed through the political process).

      The upshot of this is that it allows legislatures to deliberately leave new laws vague and allow for the courts [10] to map out the exact contours of the law. The classic example of a short statute with a highly developed (and oftentimes changing) body of caselaw is the Sherman Antitrust Act.

      Another effect is that since law is made by generalizing from cases to general rules, the limits of the law tend to be a lot clearer: a benefit for businessmen (no, not that kind of businessmen) who are afraid that their new moneymaking venture might skirt the law and get them into a needless lawsuit. Up until recently, murder wasn't even a statutory crime in the UK; this comes under the category of a "common law offence", where the legality of an action is set by court precedent and not statute.

      On another note, one of the traditional things that separated the Common Law from other legal systems was the concept of equity. In the broad sense, equity is the element that "mitigates the rigor of the common law," i.e. keeps lawyers from becoming Rules Lawyers and engaging in systematic Loophole Abuse, and thus preventing judgments from wronging the wronged party or ignoring mitigating circumstances. In the narrow sense, "law" and "equity" eventually developed into two parallel legal systems in England—one based on the law created by the judges of the King, and one based on the system of the Court of Chancery, which was itself an outgrowth of a tradition of throwing oneself on the King's mercy. In time, the usual courts eventually settled on monetary damages as the usual manner of settling a dispute, while the Court of Chancery eventually settled on equitable remedies. At a certain point around the beginning of the 19th century, jurists in both Britain and the US realized that this system was absurd, and merged the two.[11] However, the rules developed by each of these court systems remain today (even if they aren't always observed), which can be quite confusing.

      Another peculiarity of the common law is its adversarial system: cases are presented as a sort of battle of words, in which one side "wins" and the other "loses" on the basis of the strength of their arguments. While this feature is by no means inseparable from the common-law system, the two generally come together. This generally is the target of derision from continental European countries, who use the civil law and an inquisitorial system, in which judges are directed to "inquire" after the truth. Arguments over the benefits and drawbacks of this feature are the sorts of things that get comparative law experts really worked up. People who live under common law often see its provisions as universal, which can lead to a shock when they're exposed to other legal systems (and see also Eagleland Osmosis, to which this applies). Statistical analysis of the two systems in criminal cases indicates that the adversarial system, with its usual jury, tends to ever so slightly favor acquitting the guilty, while the inquisitorial system ever so slightly favors convicting the innocent; however, the difference is almost negligible statistically, and of course it is virtually impossible to say which system is "better" in the case of civil lawsuits.

      In fact, the United States and Australian Constitutions actually forbid federal court judges from hearing cases that do not involve actual disputes. One of the biggest, most hotly contested areas of Constitutional law (which, ironically, has been appealed to the Supreme Court on multiple occasions) is that of standing, which determines whether you even get in the federal courthouse doors. You can't just declare yourself an adversary and expect to be heard. This is mostly a problem because of the doctrine of Seperation of Powers - basically, the idea that no branch of the law should have too much power. Making 'advisory judgements' which don't resolve disputes is a duty relegated (perhaps arbitrarily) to the executive, meaning that courts are forbidden from engaging in it. Note that this rule only applies to Federal Courts in America. American State courts can hear whatever types of cases their respective state constitutions allow. Australian state courts have no such luxury.

      1. To stand by decisions and not disturb the undisturbed
      2. Personal law--marriage, divorce, inheritance, etc., is handled according to the religion of the person in question...unless you got married in a foreign country, in which case the law of that country is applied by Israeli judges. Confusing, we know.
      3. Which mostly uses Islamic law
      4. Which uses French law with a dash of Islamic law for flavor
      5. Which uses a mix of common law and Roman-Dutch civil law--rather like Scotland, actually, although the Roman element in Scotland is native, not Dutch
      6. For instance the European Patent Organization adopted Stare Decisis which has the effect of making it almost common law in how it proceeds
      7. In Civil Law systems, previous judgement is only of persuasive value but is not binding.
      8. Incidentally, this system is remarkably similar to the system used in Jewish and Islamic law. A few (slightly crazy) legal scholars, seeing certain similarities between the systems (and taking special note that the English started forming trusts shortly after The Crusades exposed them to the similar Islamic waqf) have hypothesized that this similarity is not accidental. Naturally, this is Serious Business, so we'll have no more discussion of that here. Carry on...
      9. The Ninth Circuit, which contains California, has 28 Circuit Judges so getting over half of them to agree to rehear a case and formulate a coherent opinion would be an exercise in herding cats. The rules of that Circuit mandate that only 11 judges are needed to go en banc; this is the most common rationale for dividing the Ninth Circuit into West Coast and inland western circuits; the West Coast one, frustratingly, would still have to have 21 judges.
      10. Or Administrative Agencies, but that's a whole other article
      11. The US actually led the way on this one, with the Constitution specifying that the federal courts would hear all cases "in law and equity" under the law of the United States; however, several states retained the old distinction well after independence.