Case or Common Law as a Source of Law

Surely, some of us have solved contradictions in the trial. There, each of the parties showed evidence of their rightness to tip the scales in their favor. The judge listened to the arguments, verified the data, selected the relevant facts, and decided whether the existing law would fit to the indicated event.

The level of competency of magisterial departments is defined not only by the sphere of activity but also by their place in the hierarchy. Higher power structures may accept appeals from subordinates, in case of dissatisfaction with the resolution received. It is given a clear period of time, alias, the matter is considered closed and cannot be renewed.

English Common Law

History of jurisprudence says that in England of the 18th-century case law was the most popular source. Similar conservative habit ran counter to the Roman system, based on written codex, ordinary in numerous countries. At the sentencing, most tribunes were guided by the canons of validity and local customs. Behooving consistency, the English judicial offices started to pursue a policy of creating a unified codification of laws, grounded on previous proceedings. This right was called a common one because it was guided by the whole nation.

In the USA, English standards appeared along with the first migrants. Initially, 13 settlements regarded all crimes from the viewpoint of common law, although certain deviations in criminal matters or choice of penalty were allowed. As a result of the war for independence, a hostile attitude towards England spread to the jurisdiction, which led to a gradual erosion of its foundations.

Local authorities substituted some points with statutes adopted by legislative assemblies. Thus, the process of transforming traditions into innovations began.

Limitations on Common-Law Crimes

In a lot of American states, judges are forbidden to create felony as this practice tramples on the notion of justice. The implementation of a new category of criminality and, accordingly, punishment makes the legal order unpredictable and chaotic. This deprives us of the key conception of penal fairness.

In the mentioned case, it is the dooms that determine the legitimacy of behavior. If there is no law-giving action on the criminalization of a certain norm, the accused is not held criminally liable, even if his conduct looks out of place or disgusting in the public eye.

Common law still plays an important role in criminal lawmaking. We owe it the classification of offenses and the appearance of amendments. Quite frequently, Senate refers to past practice. Judges are guided by tradition in defining the contractual conditions or penal procedure.

In general, the United States belongs to the places of common law. Any state, except Louisiana, perceives it as a standard if the norm provides for another interpretation.

Case Law Example

The matter of the Keeler in 1970 is a textbook situation. The defendant attacked his pregnant former spouse. After the attack, the child was born dead. As to the verdict of the Supreme Court, an accusation of murder was dropped from Keeler since the California statute clearly prescribes punishment only for the killing of a person.

Having studied in detail the category of a human, the tribunal came to the conclusion that the fetus does not belong to this definition. To create a new felony, it was necessary to violate the clause of due process, which is contrary to the Criminal Code. But after the closure, local authorities decided to amend certain statements, involving the foetus as the offense. An exception applies only to abortion.

Powerful Nature of Case Law

The charter on a concrete issue is considered as the most prevalent source of law. But some judges turn it into a great tool by combining some points of the constitutional and normative system. Explaining the Constitution in an advantageous way, the court adds occasions to protect a defendant. The judge is also in a position to argue the statute in an unconstitutional manner, having removed its legal force. Such a procedure is known as the power of jural review.

When announcing a sentence, a magistrate necessarily refers to the law or adjustment. Such a remark affects the interests of participants in the process, as well as legal common-law principles that are indirectly related to the proceedings. Here comes into legality the doctrine of precedent when trials are obliged to interpret laws, according to the will of higher bodies in similar cases. Attorneys distinguish the next rules of this practice:

  • An official must clarify the reasons for his award. If it is different from the previous one, he should clarify such a change from a legal point of view.
  • Most judicial institutes may not follow past solutions, although they forget about their right, preferring to use ready-made templates.
  • The verdict is valid only in the territory of a certain state. If attorneys are experiencing difficulties, they can turn to foreign colleagues for advice.
  • Through legitimate reasoning about the consistency of the rule of law and the proposed case, a sound resolution is reached. The decree of the highest tribune in a particular jurisdiction is final.

Naturally, precedents may change with time or be discarded as unnecessary. But it is they that allow us to predict and evaluate the legitimacy of our and others' actions. Having knowledge of similar facts, you are able to foresee possible consequences and risks.

Thus, one should learn to differ between social norms and jurisdiction. The first category is based on accepted behavioral standards or upbringing. From childhood, you are taught to justify the expectations of others regarding respect for decency. The second term is accountable for the safety and stability of the society on the fundament of legitimate dooms. If the violation of norms threatens you with nothing but condemnation, ignoring the laws entails the payment of fines or imprisonment.

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