Definition of Common Law - Term Paper Example

Common Law Common law can be defined as a "system of law that prevails in England and in countries colonized by England." (Holmes 1993) The common law is resulting from the medieval theory that the law overseen by the king's courts signified the common custom of the kingdom, as opposed to the custom of local jurisdiction that was applied in local or manorial courts. (Eldon) In the early beginnings of common law it was for the most part a product of three English courts-King's Bench, Exchequer, and the Court of Common Pleas-"which competed successfully against other courts for jurisdiction and developed a distinctive body of doctrine." (Holmes) The name "common law" is also used to refer to the conventional and long established, precedent-based element in the law of any common-law jurisdiction, as disparate to its statutory law or legislation. As well it the term common law is also used to signify that part of the legal system that did not develop out of equity, maritime law, or other special branches of practice. (Eldon) In addition to England common law is practiced in all of Canada except Quebec and all of the United States except Louisiana. All of these areas follow common law and U.S. state statutes usually provide that the common law, equity, and statutes in effect in England in 1603, the first year of the reign of James I, shall be deemed part of the law of the jurisdiction. (Homes) Decisions of the English courts that were made later only have persuasive authority. There are particular characteristics and features of common law that distinguish it from other types of law. The one feature that distinguishes common law is the fact that it represents the law of the courts as expressed in judicial decisions. "The grounds for deciding cases are found in precedents provided by past decisions, as contrasted to the civil law system, which is based on statutes and prescribed texts." (Holmes) In addition the system of judicial precedents, other characteristics of common law include trial by jury and the doctrine of the supremacy of the law. In the beginning, supremacy of the law meant that not even the king was above the law; however today it can be translated as meaning that acts of governmental agencies are subject to scrutiny in ordinary legal proceedings. Judicial precedents gain their force from the doctrine of stare decisis [Lat., =stand by the decided matter], i.e., that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction. (Holmes) However, in the when conditions change they make most decisions inapplicable except as a basis for analogy, and a court must consequently frequently look to the judicial experience of the rest of the English-speaking world. "This gives the system flexibility, while general acceptance of certain authoritative materials provides a degree of stability." (Eldon) On the other hand in many occurrences, the courts have failed to keep speed with social developments. As a result of this it has become necessary to enact statutes to bring about needed changes. Without a doubt in recent years statutes have superseded a great deal of common law. This is especially true in the fields of commercial, administrative, and criminal law. Characteristically, however, in statutory interpretation the courts have recourse to the doctrines of common law. (Eldon) In consequence increased legislation has limited but has not ended judicial supremacy. The development of common law has an interesting and relevant history. Early common law was somewhat uncompromising. In this respect common law would not adjudicate a case that did not fall specifically under the purview of a particular writ and had a cumbersome set of procedural rules. With the exception of a few types of lawsuits in which the object was to recover real or personal property, the only remedy provided was money damages. (Holmes) In these in instances the body of legal principles known as equity evolved partly to overcome these deficiencies. (Eldon)" Until comparatively recent times there was a sharp division between common law (or legal jurisprudence) and equity (or equitable jurisprudence). In 1848 the state of New York enacted a code of civil procedure (drafted by David Dudley Field) that merged law and equity into one jurisdiction." (Holmes) Thus, actions at law and suits in equity were to be administered in the same courts and under the same process. The Field code reforms were adopted by most states of the United States, by the federal government, and by the United Kingdom (in the Judicature Act of 1873). (Eldon) Some common law from the United Kingdom will be listed and briefly discussed below. The Criminal Evidence Act 1984 and regulations in Codes of Practice cover stop and search; entry to premises; detention and questioning; identification and tape recording of interviews. Common Law states: A person cannot be stopped by police officer unless there is an intention to arrest. Citizens have no duty to answer questions. Rice v Connoly 1966 QB: cannot arrest for refusal to answer questions and no legal duty to accompany police officers. Police may attract a person's attention 1. in order to question, including touching (Donnelly) but may not transcend the norms of acceptable behavior. Collins: may not grab arm to prevent person from leaving. Reasonable suspicion for stop and search set out in Act and codes. (Eldon) Stolen or prohibited articles: 2. may search for 2 main categories of articles: 'offensive weapons' and various articles prohibited under Theft Act 1968. The Act defines offensive weapons as those which may cause injury: Harris v DPP, Fehmi v DPP 1993 All ER. (Eldon) To search for such articles a policeman must have reasonable grounds for suspecting a possession. The power may be exercised in public places: March v Arscott 1982 Cr App Rep. Drugs: Misuse of Drugs Act 1971: same power. Sporting Events (Control of Alcohol) Act 1985: an offense to have alcohol in certain public places. Can search en route to sporting events. Road Stops: Road Traffic Act 1988: police can stop. R v Waterfield 1963 All ER: driver has duty to stop and to keep vehicle stopped; but police can only detain vehicle on reasonable grounds: R v Brown Cr App Rep: breath test requirement. (Eldon) Arrest. S28 of Act = mere statement. But Genner v Sparks 1706 Mod Rep: physical contact needed; Russen v Lucas 1824 C&P statement that suspect is under arrest is sufficient if suspect acquiesces. Must be informed (Brosch, Ilford). Reasons for arrest. DPP v Hawkins 1988 Cr App: suspect violently resisting arrest does not have to be told until it is practical to do so. Common law power to arrest: only for breach of the peace: R v Howell 1982 QB supplies definition: harm is done is likely to be done. R v Chief Constable of the Devon 1982 QB: unlawfully and physically prevented from carrying out work. Prevention of Terrorism Act 1989: additional powers to arrest those 'concerned in the commission, preparation or investigation of acts of terrorism. 'Concerned in' broadly interpreted. Emergency provision: Murray v Ministry of Defense 1988 All ER: false imprisonment, arrest without warrant; under restraint before formal arrest Detention and questioning. Preliminary procedures: arrested must be taken to station immediately. Log must be opened. Entitled to a copy of the custody record and inspect the original. Information given at detention: Rights-to inform someone of arrest; right to counsel; and right to consult codes of practice. Can be exercised at any time. Written notice of rights must be provided to detainee. Detainee must sign custody record to make sure that he has received notice and understands rights. Stone 3.2.2. Search of detainees: included in custody record is inventory of everything found in possession. May only seize clothes and personal effects if has reasonable concern that detainee will harm himself or others. Time: period of time of detention depends on the crime; time runs when arrested person arrives at the station. R v Kerawalla 1991 Crim LR. Must be charged or released within 24 hrs of arrest. May be rearrested on a different charge, but police must act in good faith. 24 hr period may be extended for 'serious arrest able offences' (murder, treason.) up to 96 hrs. Conditions in detention: right to advise someone of arrest and place of detention. Delay permissible only under terrorism provisions or for serious arrest able offence. Right to legal advice: only arises when taken into custody at station or elsewhere: R v Kerawalla 1991 Crim LR (does not include questioning in hotel room). Delay in one circumstance is not necessarily justifiable in others: R v Parris, R v Samuel 1988. Right of silence: must be advised before questioning. Presumption of innocence (Woolmington). Cannot be compelled to make self-incriminating statements: Smith v Director of the Serious Frauds Office 1992 All ER: exception for the investigation of serious frauds. Rule does not apply in undercover operations: R v Christou 1992 WLR: videotape. Provisions designed to protect detainees who perceive police to be in a position of power. R v Bryce 1992 Cr App: conversation with undercover officer should not have been admitted. The principles governing the English legal system are stipulated in parliamentary statutes, judge-made common law (i.e.: the system of courts and procedures that influence the function of law in practice through court decisions that are binding stare decisis) conventions and customs. There is no written constitution as such and thus no entrenched bill of rights governing English law. Parliamentary sovereignty empowers Parliament to enact and repeal legislation that forms the core of the English legal system. Acts of Parliament and common law are extended only to England and Wales. The territories of Scotland, Northern Ireland, the Isle of Man and the Channel Islands are all governed by separate legal systems. (Holmes) Common law is the predecessor for many other types of law. These laws include Labour laws, marriages and trademarks to name a few. With regard to employment law, the primary sources of law are an amalgam of the law of contract, essentially common law, and statute, of which the Employment Rights Act 1996 and the Trade Union and Labour Relations Act, 1992 are prime components. The UK has been a member of the International Labour Organisation (ILO) since 1919 and is bound by those ILO Conventions it has ratified and which are in force. (Holmes) The United Kingdom is a constitutional monarchy with a bicameral parliament composed of the Houses of Commons and Lords. Formally, executive power is vested in the Crown in the person of the Sovereign, but in reality, central government is carried out in the name of the Crown by ministers of state.6 The powers of the Sovereign and the Crown derive either from Acts of Parliament or are prerogative (recognized in common law). (Holmes) In conclusion , it can be said that common law has a long history but an important one. It is designed to help the common man and in its earliest beginnings even included the king. Common law is set up so that no one is above the law. Yet it gives citizens rights that they are entitled to and in most respects it protects the common man. Common law was set up to distinguish some laws, those that are familiar, so that they encompass the good of the land. and the people in it. References Eldon, Gerald. (2004) "Common Law-Introduction" As viewed on the worldwide web at URL ttp://www.detaxcanada.org/cmlawintro.htm Holmes, O.W. (1993) Common Law (1881; new ed., ed. by M. DeWolfe Howe, 1963, repr. 1968); Read More