Common Law

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The term "common law" is used with two meanings.

Broader Meaning

In a broader sense, it refers to judicial systems in the tradition of the English system (e.g. the U.K., Canada, Australia, the United States and India).

Common law judges are, as a rule, more powerful than Civil Law judges, and this is particular true in the United States where most judges of general jurisdiction in trial courts or more powerful courts, in both state and federal courts, generally have the authority to declare laws unconstitutional, to require individuals to perform or refrain from performing particular acts (i.e. injunctions) on threat of imprisonment (the Contempt Power), to order governmental officials and/or governments to take particular actions or pay money damages, and to craft new law under "common law" principals in some situations.

The greater power of Common Law judges, particular in the U.S. system also flows from how these judges are selected. In Common Law systems, judges are generally experienced lawyers who have made a name for themselves as distinguished and accomplished lawyers who also have political connections and are entering into a second career. In contrast, in a Civil Law system, judges start right out of law school in the traffic courts or other inferior courts, and slowly work their way up the hierarchy to the limits of their abilities. The American practice tends to attract powerful personalities with political inclinations who seem themselves as political and policy making actors, while the Civil Law system generally tends to attract more risk averse civil servant personalities who have an instinctive aversion to all things political.

The Common Law system gives great deference and power to juries, who effectively make law by interpreting vague standards, with a de facto power to "nullify" laws by making decisions contrary to the law that are not subject to appeal, and who hold the critical power to assess punitive damages and non-economic damages in many civil cases with very little guidance. This power is the cause of a great deal of criticism of the Common Law system.

The grounds for appealing a trial court decision, whether made by a judge or a jury, are much narrower in a Common Law system, than in a Civil Law system. Unlike a Civil Law system, there is as a general rule no opportunity in a Common Law system to correct an incorrect finding of fact on appeal. Unlike Civil Law "trials" which are generally carried out in a series of hearings separated by days or weeks, Common Law trials are generally heard all at once so that it is possible for a jury to stay together to hear all the evidence, whether or not there actually is a jury in a particular trial.

Narrower Meaning

In the narrower sense, it refers to legal rules (including most rules governing the legal duties of private persons to each other) created since the Norman Conquest over time and evolving through a process called Stare Decisis (which basically means following precedent unless it doesn't make sense any more in which case judges should follow common sense) into modern judge made law.

Most of the law of property, contracts, and torts (i.e. civil wrongs like the law of car accidents), is common law. Historically, substantive criminal law, the rules of evidence, the laws of inheritance and family law was also common law, although these areas of the law have been largely codified in legislative statutes or formal procedural rules made by courts acting in a regulatory way.

While in the early years of the United States "common law" was viewed as a naturally existing thing which judges "discovered" from basic moral principals and common sense, it is now viewed a something "positively" created by judges. Still, a common law decision made in one court with sound reasoning is often used to influence a judge considering a similar issue in a different state who is not "bound" by the law of the state where the first judge makes the decision.

Most common law is "state law", but there are a handful of areas where judges at the federal law make "common law". The federal law of privileged communications, and the scope of "international law", are both examples of federal common law.

Likewise, even when statutes are present, in common law countries, they often simple address points of controversy in the common law, or are written with the expectation that judges will fill in the blanks, rather than with the comprehensive approach common in Civil Law countries. For example, many states in the United States have statutes to set out a "statute of limitations" within which a person must bring certain kinds of common law lawsuits, without ever defining the elements of those legal claims in any statute. Colorado, for example, does not have a statute which defines the elements of a claim for civil fraud, or a suit to recover for damages in an automobile accident.

Moreover, common law legal standards are often deliberately vague so as to give juries wide discretion to rule in a case as they deem fit and fair.

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