A Judge`s View of the Law Is of Little Importance in a Common Law Legal System

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The United States, Canada, England, India and Australia are generally considered common law countries. As they were all once subjects or colonies of Great Britain, they often maintained the common law tradition. The state of Louisiana in the United States uses bijudicial civil law because it was once a colony of the France. After partition, Pakistan maintained its common law system. [141] Unlike the legal codification of the common law, some statutes replace the common law, for example, to create a new cause of action that did not exist at common law or to legally prevail over the common law. One example is the offence of wrongful death, which allows certain persons, usually a spouse, child or estate, to bring an action for damages on behalf of the deceased. There is no such tort under English customary law; [70] Therefore, any jurisdiction that does not have an unlawful death law will not allow prosecution for the unlawful death of a loved one. If there is a law on unlawful death, compensation or any other remedy is limited to the remedy provided for in the law (usually a limit greater than the amount of damages). Courts generally interpret laws that create new means of law narrowly – that is, limited to their exact terms – because courts generally recognize that the legislature is at the forefront of the decision on the scope of judicial law, unless such a law violates a “second-rate” constitutional provision (see Judicial Activism). This principle is applied more strongly in areas of commercial law (contracts and others) where predictability is of relatively higher value, and less so in offences where courts recognize greater responsibility for “justice”. [71] Prior to 1938, federal courts, like almost all other common law courts, ruled on the law on all matters in which the legislature had jurisdiction (i.e., the United States). Congress or the state legislature, depending on the matter, had not acted by appealing to the courts of the same system, that is, to other federal courts, even on questions of state law and even when there was no explicit grant of powers by Congress or the Constitution. The American democratic system is not always based on simple majority rule.

There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas. For example, the Bill of Rights was adopted because concepts such as freedom of religion, freedom of expression, equal treatment and due process were considered so important that without constitutional amendment, even a majority should not be allowed to change it. On the other hand, in jurisdictions where compliance with precedents is very low,[76] new legal issues are re-decided each time they arise, making consistency and prediction difficult and making proceedings much longer than necessary, since parties cannot rely on written legal statements as reliable guidelines. In jurisdictions that do not have strong loyalty to a large number of precedents, the parties have fewer a priori guidelines (unless the written law is very clear and up-to-date) and often have to leave a greater “margin of safety” of untapped opportunities, and final decisions are made only after much higher expenses for attorneys` fees by the parties. In civil law systems, on the other hand, codes and laws are designed to cover all eventualities, and judges have a more limited role in applying the law to this case. Past judgments are nothing more than cowardly guides. When it comes to court proceedings, judges in civil systems are more like investigators, while their counterparts in common law systems are more likely to be arbitrators between the parties presenting arguments. For example, criminal laws in most U.S.

states are primarily a codification of pre-existing customary law. (Codification is the process of passing a law that brings together and reformulates pre-existing law in a single document – if that pre-existing law is customary law, customary law remains relevant to the interpretation of those laws.) Based on this assumption, modern laws often leave a number of fine terms and distinctions unremarked – for example, a statute might be very short and not leave the exact definition of terms specified, assuming that these fine distinctions will in the future be made by the courts on the basis of what they then understand as the already existing common law, would be resolved. (For this reason, many modern American law schools teach the common law of crime as it existed in England in 1789, as this centuries-old English common law is a necessary basis for the interpretation of modern criminal laws.) Oliver Wendell Holmes Jr. warned that “the correct derivation of general principles in customary and constitutional law … gradually emerge in the emergence of a consensus from a multitude of previous decisions particularized. [55] Cardozo J. noted that “the common law does not operate from prefabricated truths of universal and inflexible validity to conclusions derived from them,” but “[t]he method is inductive and draws its generalizations from the details.” [56] Henry II`s creation of a powerful and unified judicial system, which somewhat limited the power of the canonical (ecclesiastical) courts, brought him (and England) into conflict with the Church, notably with Thomas Becket, the Archbishop of Canterbury. The archbishop`s assassination sparked a wave of public outrage against the king. Henry was forced to repeal controversial laws and abandon his efforts to hold church members accountable for secular crimes (see also Clarendon Constitutions). The judge presiding over a case determines which precedents apply to that particular case. The example of higher courts is binding on cases that are heard by lower courts. This system promotes the stability and coherence of the American judicial system.

However, lower courts may decide to modify or depart from precedents if they are outdated or if the current case is substantially different from the previous one. Lower courts may also choose to set a precedent, but this rarely happens. The common law dates back to the beginning of the English monarchy, when the courts began to collect and publish legal decisions. Later, these published decisions served as a basis for ruling on similar cases. Common law systems tend to give more weight to the separation of powers between the judiciary and the executive. In contrast, civil justice systems tend to be more tolerant when it comes to allowing individual public servants to exercise both powers. An example of this contrast is the difference between the two systems in the division of responsibilities between the prosecutor and the judge. [116] [117] While still on the Massachusetts Supreme Court and before being appointed to the U.S. Supreme Court, Justice Oliver Wendell Holmes Jr. published a short volume entitled The Common Law, which remains a classic in the field.

Unlike Blackstone and the Restatements, Holmes` book deals only briefly with what the law is; Rather, Holmes describes the common law process. John Chipman Gray`s The Nature and Sources of the Law, a book by law professor John Chipman Gray, is still widely read in American law schools. Substantive law establishes or defines legal rights and obligations. Scottish customary law covers issues such as murder and theft and finds sources in customs, legal writings and previous court decisions. The legal writings used are called institutional texts and date for the most part from the 17th, 18th and 19th centuries. Examples include Craig, Jus Feudale (1655) and Stair, The Institutions of the Law of Scotland (1681). South Africa, Namibia, Botswana and Zimbabwe are bi-legal, i.e. they follow a combination of the two legal systems. An example of the gradual change typical of common law development is the gradual change in liability for negligence.

The traditional common law rule for most of the 19th century was that a plaintiff could not claim the negligent manufacture or distribution of a harmful tool by a defendant unless both were contractually entitled to it. Thus, only the immediate buyer could correct a product defect, and if a part was built from parts of parts manufacturers, the final buyer could not compensate for the damage caused by a defect in the part. In an English case of 1842, Winterbottom v. Wright,[58] the post office had signed a contract with Wright to service their cars. Winterbottom was a pilot for the position. When the coach failed and injured Winterbottom, he pursued Wright. The Winterbottom court acknowledged that there would be “absurd and outrageous consequences” if an injured person could sue anyone involved peripherally, knowing that they had to draw a line somewhere, a line for the causal link between negligent behavior and injury. The court looked at contractual relationships and ruled that liability would only apply to the extent that the person is in the direct contract (“privity”) with the negligent party. Ghana follows the English common law tradition,[148] inherited by the British during their colonization.

Therefore, Ghana`s laws are, for the most part, a modified version of the imported law, continually adapting to the country`s changing socio-economic and political realities. [149] The Bond of 1844[150] marked the time when the people of Ghana (then the Gold Coast) ceded their independence to the British[151] and transferred authority to the British judiciary.