Common Law Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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Common law developed not at a single moment by the proclamation of a single individual, but as a result of accumulated traditions and laws over many centuries. The first statement of common-law principles can be found in the Magna Carta. Embodied in these rules was protection of subjects from rulers by preserving the rule of law via a system of due process. It took nearly four centuries for Sir Edward Coke, who became lord chief justice of England, to create a theoretical understanding of the common law and place the courts at the center of the common-law system. Following Coke was Sir William Blackstone, author of Commentaries on the Laws of England, who made modifications in Coke’s philosophy but stayed faithful nonetheless. American iterations of the common law were professed most famously by American jurist and Supreme Court justice Oliver Wendell Holmes Jr., who stated that the common law is judge-made law. However, this definition departs from the original conception of the common law. The role of judges within the original conception of the common law was to decide law in accordance with existing statements of the law. Common-law judges had to balance canon law, parliamentary law, and precedent. In the absence of a clear and authoritative statement of the law, judges would hand down decisions that filled in the gaps by interpreting the existing law. In addition to precedent, a number of institutional arrangements and legal principles characterize the common law, and these differentiate common-law legal systems from other legal systems.

Common Features Of Common-Law Systems

Common-law legal systems are generally found in those countries that were territories or colonies of the British Empire. They are adversarial systems in which an attorney represents the accused and another attorney represents the accuser. Each side presents their case to a judge and jury to deter mine fact, guilt, and sentence. The most identifiable feature of the common-law system is the use of jury trials. It is the presence of juries that creates a buffer between the state and the citizen as juries are made up of one’s peers. In common-law systems, judges and attorneys are selected from the bar in order to provide a certain level of professionalization. The professionalization of the judiciary is necessary for the common-law court to function effectively since the judges must deter mine the relevancy of evidence in order to ensure that the evidence presented is relevant to the case at hand. Furthermore, in order to have a system in which judges are granted a great deal of latitude, the judges must be properly trained and have a fir m grasp of the law as it has developed through precedent. In making their decisions, precedent guides judges in the common-law system. Stare devises is another term for precedent that is used to reflect a judicial ruling that is binding in future cases.

Criticisms

The common-law system is often criticized for being wrought with procedural strictness that becomes burdensome to all involved. One of these features is the separation between courts of law and courts of equity. Charles Dickens’s novel Bleak House criticized this cumbersome feature of the common-law system. Courts of law apply the law as established to a particular case. In some instances, the law may provide a remedy that is inadequate for a particular situation. When such an instance arises, then one of the party’s may take the suit to be heard in an equity court, sometimes referred to as courts of chancery. Equity courts can exercise more latitude in granting rewards to the victim. Until 1873, England maintained separate courts of law and equity. The federal judiciary in the United States ended such a formal distinction with the ratification of the Constitution. Until 1937, with the passage of the Federal Rules of Civil Procedure in which law and equity were combined into one form of action, the courts of the U.S. federal judiciary maintained a distinction between law and equity in one court. This reform came one year before the landmark decision in Erie Railroad Company v. Tompkins, in which the Supreme Court stated there is no federal general common law.

Codification And Evolution Of Common Law

In the United States, most of the common law has been codified. Codification is the process by which common-law principles are turned into statutes. Examples of federal codification include the Federal Rules of Civil Procedure, the Uniform Commercial Code, and the Federal Rules of Evidence. The change at the national level was the result of a similar change at the state level. The codification movement, inspired by English philosopher and legal theorist Jeremy Bentham, was put into action by nineteenth-century American lawyer David Dudley Field, whose field codes were implemented in New York. Nearly all states followed suit by codifying former common-law principles. Louisiana is the only state without a common-law background. Instead, its system of law is based on the Napoleonic Code, with France having first colonized the region.

The common law is a constantly evolving system of law. It is a body of general rules that prescribe social conduct. In the common law, the law is supreme and is placed above all institutions and actors. At its center is a judiciary who does not make law, but discovers law through a long and laborious study of the statutory law, tradition, and precedent. Judicial decisions, stare decisis, guide future decisions. Developing out of actual legal controversies, the common law is identified by its use of precedents, jury trials, adversarial proceedings, a professionalized bench and lawyers drawn from the bar, and the protection of individual rights. James Stoner, Common-Law Liberty: Rethinking American Constitutionalism, writes, “Common law emphasizes assent rather than domination, the community rather than the state, moral authority rather than physical power” (Stoner, 5).

Bibliography:

Hogue, Arthur R. Origins of the Common Law. Reprint, Indianapolis, Ind: Liberty Fund, 1986.
Horwitz, Morton J. The Transformation of American Law: 1780–1860.
Cambridge, Mass.: Harvard University Press, 1977.
Stoner, James R. Common-Law Liberty: Rethinking American Constitutionalism. Lawrence: University Press of Kansas, 2003.
Stoner, James R. Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism. Lawrence: University Press of Kansas, 1992.