Talk:Common law

From RationalWiki
Jump to: navigation, search

Might wanna clarify common law vs stare decisis.--PalMD-Goatspeed! 15:31, 16 July 2007 (CDT)

I would, but I don't have enough of a law background I'm afraid. EVDebs 15:54, 16 July 2007 (CDT)
WEll, from my limited understanding, the reliance on judicial precedent specifically is the doctrine of stare decisis. The more general "common law" relies on this but is broader. User:AmesG will know, if he ever stops working so hard.--PalMD-Goatspeed! 16:00, 16 July 2007 (CDT)
Common law and stare decisis are separate things. Common law is made by judges and dates from medieval times. Stare decisis is simply what happened when magistrates compared notes. Dagomar 19:48, 16 July 2007 (CDT)
I agree with PalMD's interpretation. Stare decisis literally means the decision stays, right? That judicial precendents shall not be set aside lightly (if at all). Common law is broader. humanbe in 20:11, 16 July 2007 (CDT)

Dag's right. Stare decisis is respect for precedent: it's the idea that the common law should have staying power when judges deal with it.-αmεσ (!) 20:40, 16 July 2007 (CDT)

Spell, grammar, and logic check?[edit]

Could anyone help out with that :-) -αmεσ (!) 21:33, 16 July 2007 (CDT)

Wow, someone wrote an "article" while I was away... I just read most of it, and nothing jumped out as disastrous. The only thing I might suggest, if possible, is breaking in into more, shorter paragraphs for publically-[[school]led dolts like myself. Lawyers love long paragraphs, they hide the devil in the middle of them! humanbe in 23:43, 16 July 2007 (CDT)
Excellent article! Although it should be stah-ray DE-ki-sis rather than de-kai-sis... I think. All that light and heavy syllable stuff always confuses me. --AKjeldsenGodspeed! 03:46, 17 July 2007 (CDT)

Civil law[edit]

A: http://en.wikipedia.org/wiki/Civil_law_(legal_system)#Codification

B: http://en.wikipedia.org/wiki/Civil_law_(common_law)

Either way, the section I removed was plain wrong, and the French lawyer in me can't stand it. Civil law is either a very distinct legal system - examples of which can be found throughout Europe - or the law governing interactions between private persons. There are elements of civil law in US law (the presence of codes and the constitution itself being fairly obvious examples), but the section, as it stood, was factually and semantically incorrect. It is not simply a nice term to describe the act of legislating, unless one wants to paint English law as being partly civil law (shudder). Webbtje (talk) 15:57, 23 January 2011 (UTC)

Selective Stare Decisis[edit]

Can anyone point me out to anything said by any of the conservative justices which implies that they believe stare decisis is an absolute rule?— Unsigned, by: [[User:|User:]] / [[User talk:|talk]] / contribs

Like most things in the world, stare decisis is a rather "convenient tool" to pull out when you are trying to make your opinion more weighty, and rather easy to overlook when you don't really care. Specifically, however, in Justice Robert's confirmation hearings, he is challenged often on sd, and says significantly that it is the rule of the Courts, and that if you do not apply it, you need a critical, logical, and weighted reason to over turn such precedent. Thomas has taken the extreme opposite saying in non-court, non-formal settings that he as a Judge is **never** obligated to follow precedent but may do as he wishes at any time for any reason. "Gut Law" he has called it, when lecturing at religious conventions. Scalia falls somewhere in between. he screams and moans about overturning precedent when there have been challenges to things like Bowers v. Hadwick but when he wants to make Corporations hold the legal status of persons, or when he wants to say the 14th amendment ONLY applies to blacks and not women or gays - well, then he just doesn't seem to give a shit about precedent. Pink mowse.pngGodotMoi j'dis, laisse beton 16:34, 17 November 2011 (UTC)
For the record, as much as i HATE his rulings, Roberts has kept his word. Unlike Scalia and Thomas, when Roberts decides to do what he wants, he grounds it in lots and lots and lots of legal citations. His staff could probably find precedent for saying the moon is made of green cheese. Pink mowse.pngGodotMoi j'dis, laisse beton 16:35, 17 November 2011 (UTC)
I read a great paper by a scholar whose name escapes me which argued that stare decisis is only ever used by conservative justices when the precedent aligns with their ideology, and completely discarded otherwise. Blue Talk 17:44, 17 November 2011 (UTC)
If you substitute conservative with progressive, the new paper would be just as valid. Brandeis J, had a point when he said that sometimes is more important for the law to be settled than to be correct (unpredictability of the legal system leads directly to the unpredictability of one's rights) many decisions become manifestly wrong over time and thus need to be overturned. I hope nobody here would want Plessy v Ferguson to be good law today. Absolute stare decisis is thus obviously wrong and as Brandeis put it no respect to precedent is also dangerous. While I am no supporter of Alito J, I think he had it right when he said that stare decisis is "not an inexorable command but it is a general presumption that courts are going to follow prior precedents." Even the progressive justices used the stare decisis doctrine to attempt to retain precedents they like such as Steven's J dissent in Citizens United where he said -- "The final principle of judicial process that the majority violates is the most transparent: stare decisis." However in Lawrence v Texas Stevens J himself disregarded stare decisis when he joined the majority opinion which overruled Bowers v Hardwick. It is unfortunate that a site which calls itself "rational" wiki uses irrational attacks. — Unsigned, by: 76.221.152.231 / talk / contribs
Drink, everybody! Blue Talk 23:05, 17 November 2011 (UTC)
Sorry shouldn't have made that crack about "irrational" wiki :) (No point editing it now I guess).I like the site (especially the science sections). Anyway all judges are guilty of selective stare decisis, but then again I have not seen any judge pay obeisance to absolute stare decisis. — Unsigned, by: 76.221.152.231 / talk / contribs
There's no harm in editing the entry, by any means. Blue Talk 23:15, 17 November 2011 (UTC)

I know people worked hard on this, but...[edit]

..this article is largely wrong. Stare decisis is not the same thing as common law. Stare decisis is a rule that courts use to interpret common law, but they also use it to interpret statutory and constitutional law. For example, the cases mentioned in the article (Plessy, Brown, Gonzales, and '"Casey) all dealt with the 14th Amendment, rather than common law. You really can't even say that stare decisis is the "central idea" of common law. Common law is supposed to be the customs and usages of the English people that pre-existed and were independent of the lex scripta (Parliamentary acts, the edits of monarchs, or [where this exists] a written constitution). The article states that common law "stretches back to Roman-era Germanic tribes." This is a romantic conception. It might be mosre precise to say that common law as we know it today developed in the High Middle Ages as the judicial interpretations of the customs of the land, although even this is too simplistic. This article also discusses gay rights and women's rights in the United States. Once again, these are issues of Constitutional protections rather than common law. Godspeed (talk) 16:00, 24 April 2012 (UTC)

Then fix it. :} Тysic semper 16:05, 24 April 2012 (UTC)
OK. Just wanted to explain what I was doing. Godspeed (talk) 16:06, 24 April 2012 (UTC)
(ec)Maybe the discussion on stare decisis should be moved to the article on this topic, which is shorter than the discussion of that topic here, and the article should focus more on how freemen, sovereign citizens, and other lawquacks abuse the concept of common law? Godspeed (talk) 16:06, 24 April 2012 (UTC)

civil law[edit]

We say:

  • Common law is contrasted with civil law, the legal system most common outside the anglophone sphere, which is based entirely, rather than partially statutory law, expecially the code napoléon.

I'm sure this is true, but it is also confusing as civil law (albeit in a different context) could also be contrasted with criminal law.--Bob"What can be asserted without evidence can also be dismissed without evidence." 18:26, 24 April 2012 (UTC)

That's why I included the words "legal system" as opposed to "body of laws" but the distinction could still be made more clear. Omar (gibber) 18:32, 24 April 2012 (UTC)

The Various Meanings of 'Common Law' (In England and Wales)[edit]

90.196.77.75 (talk) 23:10, 19 February 2014 (UTC)Hi, my first contribution to this fine body of work; so apologies if I've got any of the formalities wrong.

This is the only article I've seen where I can perhaps add something; normally people have covered everything.

The terms 'common law' can get a bit confusing because in England and Wales it has at least three separate meanings.

1. Common law as a legal system. Here common law refers to a particular legal system. it can be contrasted, for example with 'civil law' systems (such as those in Continental Europe).

Features of a common law system include:

The adversarial process. i.e. each side decides what case to run, what witnesses to call and what evidence to rely on. In essence the judge is just the umpire (this is changing a bit in England as judges are now encouraged to be more interventionist in their case management role, but the parties still decide how to run the case, the judge may be more inclined to keep them on point than before, that's all).

This is to be contrasted to a civil law system. Civil law systems use an inquisitorial process. The judge has a lot more say in how the trial is conducted, what the issues are, what witness to call, what lines of questioning etc. England does use the inquisitorial system in some cases. Inquests are one example (the clues in the etymology of the name) and the Coroner mainly decides how the inquest will be conducted (after considering, but not being bound by, suggestions from the parties). Judicial inquiries (Leverson, Bloody Sunday etc.) are also inquisitorial (once again the clue's in the name). Judges decide which witnesses to hear etc. Certain types of family proceedings relating to the welfare of children are also inquisitorial. The rationale being that the welfare of the child is paramount and this overrides the rights of any party to have 'their case' heard the way they want. (Divorcing parents for example may argue that each of them should have sole responsibility for the child, the court may think shared contact is better.)

2. Common Law v Statute. Statutory law derives from Acts of Parliament and Statutory Instruments i.e laws promulgated by persons specifically authorised to do so by Act of Parliament (so an Act may say something like 'such and such minster or agency may make such rules as they see fit regarding licensing requirements)

Case law is, as the name suggests, laws arising from the decisions of the appellate courts. In theory judges don't 'make' law, they just clarify/confirm the existing law but that's a whole other argument about judicial activism etc.

Most criminal offences are now statutory ones, but some crimes are considered to be so obvious (and considered to have always been crimes) that they're not codified anywhere. Rape was a common law offence until recently, and whilst there are various statues referring to murder, there isn't actually an Act that specifically makes murder an offence. The definition of murder 'causing death with the intent to kill or commit GBH' derives from the various cases. Statutes can over ride case law (so in the case of murder the 'requirement that the death occur within a 'year and a day' of the injury was abolished by Act of Parliament.

3. Common Law versus Equity. Originally England had two parallel legals systems. The common law (as in points 1 and 2) but also Equity. This arises from history. Originally if a party felt the common law, whilst properly applied, had resulted in an unfair result, he could petition the Chancellor. Over time a series of principles arose that the Chancellor would consider. These became 'equitable principles'. The Judicature Acts of the late 19th C abolished the separate courts but allowed the common law courts to apply equitable principles where they felt it was appropriate.


I hope this helps a bit. If you want citations there are all the classic textbooks (Smith and Hogan etc,) or the practitioner texts (Archbold). FWIW I'm a barrister (although that doesn't guarantee one knows anything about the law) who can ramble on about this sort of thing for ages. My background is in military law, so that gets even more complicated (in military law a 'civil offence' is a criminal offence that's not an offence under military law as opposed to that European system mentioned above or non-criminal law in England. I think I'll stop there.)

Common Law is a primary part of both American and British Constitutions and superior to any statute[edit]

This article and much of the commentary here is a conversation within a false premise, paradigm or if you will, reality bubble, which fails to consider the proper context in which it ought.

The term common law, as it affects the Queens realms (Canada, Australia, New Zealand and a few other places) and perhaps surprisingly to some, the USA, is more properly ‘English Common Law’. The origins of English Common Law go back much further than medieval times, as has been erroneously suggested by some commentators here. In general meaning it refers to the entrenched traditions and law that became self evident by common recognition to the community, which includes Natural Law. Common Law was first codified by Alfred the Great in the 9th Century and may well represent the ‘Greatest’ achievement of his reign. Until Magna Carta was sealed at Runnymede on the banks of the river Thames in the summer of 1215 (800th Anniversary coming this year) The kings of England generally recognised Common Law as the law of the land but retained, to varying degrees, depending on how powerful they were, overriding powers that were claimed under the presumption of the Crowns ‘Divine Right’. Magna Carta limited that Divine Right by providing rights to certain other classes that the King may not refuse. Magna Carta was the first ‘Contractual Constitutional Instrument’ that began the process of creating a ‘Written English Constitution’. There’s an old adage that suggests that if powerful elites keep repeating a lie, that lie will eventually become truth; the consequently conditioned reasoning of otherwise learned functionaries, such as lawyers trained in equally conditioned law schools, tend to believe in that lie and through abetting and largely self serving acquiescence, construct complex deceits in order to uphold that lie. In the United Kingdom that lie is that the UK has no written constitution. Americans should not presume that this does not affect them, it does, and greatly because the Common Law that underpins the American Constitution is in reality, English Common Law. But let’s get back to exactly what that Common Law is; which cannot be properly considered without recognising its place within the English Constitution.

The assertion by certain politicians that we have no written constitution must be one of the most fantastic lies because the evidence to the contrary is overwhelming. Apart from the profound fact that our Monarch is a Constitutional Monarch who swore on her Coronation Oath to uphold the Laws and Constitution of the United Kingdom, the several ‘Constitutional Instruments’ held in the ‘constitutional library’ in the Palace of Westminster reveal these documents in all their ‘written’ glory. Perhaps the greatest of these Instruments is the ‘1688 Declaration of Rights’ consequential to the ‘Glorious Revolution of the same year. The ‘1688 Declaration of Rights’ transformed the constitutional structure of the UK by limiting the power of both Parliament and the Sovereign, under an unassailable class of Law, which included Common Law. The ‘1688 Declaration of Rights’ underlines the difference between a Statute and a Law. The Declaration clarified that Law is entrenched and wholly constitutional, being constructed from Common Law and Constitutional Instruments, and that there was to be no other class of Law per se. The term Statute Law is a misnomer, more properly it should be Statute Legislation, A Statute must follow Law to be valid, it must therefore follow that any Statute that does not do so is void, it must further follow that any entity that tries to enforce such an unlawful Statute can be accused of treason. Now Rational Wiki may like to label such concepts as ‘right libertarianism’ but in actuality the various movements that have cottoned on to the truth in this matter reflect just about every shade of political view and anarchy there is, because the truth stands clear and above any ism’s, dogma’s or self righteous urbanity.

Getting back to the ‘1688 Declaration of Rights’ though, which was a contract between Parliament and the Crown; this was followed by the ‘1689 Bill of Rights’ which was a mirror image of the Declaration. The Bill, being a Statute, depended on the superior Declaration, a Constitutional Law, for its validity. So, Bills and Acts or any instrument of a British or American government cannot overturn or amend a Constitutional Law because the later is always superior; only another Constitutional Instrument can alter a Constitutional Law; and the point is.......Common Law is a real and powerful entity being a primary part of our Constitutions. No court, inquest, coroner, parliament, senate, congress or sovereign has any power whatsoever to do deny the supremacy of Common Law over any statute. Whether urbane tyranny likes it or not, this is clear and evidenced fact. It is an Orwellian disgrace however, that our governments and judiciary are criminally usurping such powers and that our Common Law is being treasonously denied every day. Who do they think they are? - An original article by John Lubran– — … ° ≈ ≠ ≤ ≥ ± − × ÷ ← → · §— Unsigned, by: 82.31.19.45 / talk / contribs

No.--Bob"I think you'll find it's more complicated than that." 21:05, 3 January 2015 (UTC)

And your argument is? — Unsigned, by: 88.106.207.228 / talk / contribs (signed by bot) 22:47, 21 February 2015 (UTC)