The Common Law: Difference between revisions

{{quote| ''Stare decisis et non quieta movere''<ref>To stand by decisions and not disturb the undisturbed</ref>}}

Describe '''The Common Law''' here.

The Common Law ([[wikipedia: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--kindScotland—kind of...), the United States (except Louisiana--kindLouisiana—kind of), Canada (except Quebec...sort of), Australia, New Zealand, Pakistan, Malaysia, Burma, Nigeria, Ireland, Israel (...for the most part<ref>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.</ref>), most former British African colonies (excepting Sudan,<ref>Which mostly uses Islamic law</ref> Egypt,<ref>Which uses French law with a dash of Islamic law for flavor</ref> and South Africa<ref>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</ref>) and some international organizations.<ref>For instance the European Patent Organization adopted Stare Decisis which has the effect of making it almost common law in how it proceeds</ref>. 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.<ref>In Civil Law systems, previous judgement is only of ''persuasive'' value but is not binding.</ref> 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.<ref>Incidentally, this system is remarkably similar to the system used in [[The Talmud|Jewish]] and [[Islam|Islamic]]ic 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 [[Wild Mass Guessing|hypothesized]] that this similarity is not accidental. Naturally, this is [[Serious Business]], so [[Rule of Cautious Editing Judgment|we'll have no more discussion of that here]]. Carry on...</ref> 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 [[American Courts|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 [[wikipedia:En banc|''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. <ref>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.</ref> 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).

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 Lawyer|Rules Lawyers]]s 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--oneEngland—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 [[wikipedia:Equitable remedies|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.<ref>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.</ref> However, the rules developed by each of these court systems remain today (even if they aren't always observed), which can be quite confusing.