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7 mars 2013 4 07 /03 /mars /2013 05:26

Common law

Cardozo's new "rule" exists in no prior case, but is inferrable as a synthesis of the "thing of danger" principle stated in them, merely extending it to "foreseeable danger" even if "the purposes for which it was designed" were not themselves "a source of great danger." MacPherson takes some care to present itself as foreseeable progression, not a wild departure. HP Mini 1001TU Laptop Keyboard Cardozo continues to adhere to the original principle of Winterbottom, that "absurd and outrageous consequences" must be avoided, and he does so by drawing a new line in the last sentence quoted above: "There must be knowledge of a danger, not merely possible, but probable." But while adhering to the underlying principle that some boundary is necessary, MacPherson overruled the prior common law by rendering the formerly dominant factor in the boundary, that is, the privity formality arising out of a contractual relationship between persons, totally irrelevant. Rather, the most important factor in the boundary would be the nature of the thing sold and the foreseeable uses that downstream purchasers would make of the thing. TOSHIBA Satellite A300 Laptop Keyboard This illustrates two crucial principles that are often not well understood by non-lawyers. (a) The law evolves, this evolution is in the hands of judges, and judges have "made law" for hundreds of years. (b) The reasons given for a decision are often more important in the long run than the outcome in a particular case. This is the reason that judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than the bright-line rules usually embodied in statutes. FUJITSU Amilo Mini Ui 3520 Laptop Keyboard In common law legal systems (connotation 2), the common law (connotation 1) is crucial to understanding almost all important areas of law. For example, inEngland and Wales and in most states of the United States, the basic law of contracts, torts and property do not exist in statute, but only in common law (though there may be isolated modifications enacted by statute). As another example, the Supreme Court of the United States in 1877,[31] held that a Michiganstatute that established rules for solemnization of marriages did not abolish pre-existing common-law marriage, because the statute did not affirmatively require statutory solemnization and was silent as to preexisting common law. SONY 148738121 Laptop Keyboard In almost all areas of the law (even those where there is a statutory framework, such as contracts for the sale of goods,[32] or the criminal law),[33]legislature-enacted statutes generally give only terse statements of general principle, and the fine boundaries and definitions exist only in the common law (connotation 1). To find out what the precise law is that applies to a particular set of facts, one has to locate precedential decisions on the topic, and reason from those decisions by analogy. TOSHIBA G83C0000EA10 Laptop Keyboard To consider but one example, the First Amendment to the United States Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"—but interpretation (that is, determining the fine boundaries, and resolving the tension between the "establishment" and "free exercise" clauses) of each of the important terms was delegated by Article III of the Constitution to the judicial branch,[34] so that the current legal boundaries of the Constitutional text can only be determined by consulting the common law.[35]DELL Vostro 3450 Laptop Keyboard In common law jurisdictions, legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law and custom. For example, in most U.S. states, the criminal statutes are primarily codification of pre-existing common law. (Codification is the process of enacting a statute that collects and restates pre-existing law in a single document—when that pre-existing law is common law, the common law remains relevant to the interpretation of these statutes.) SAMSUNG R520 Laptop Keyboard In reliance on this assumption, modern statutes often leave a number of terms and fine distinctions unstated—for example, a statute might be very brief, leaving the precise definition of terms unstated, under the assumption that these fine distinctions will be inherited from pre-existing common law. (For this reason, many modern American law schools teach the common law of crime as it stood in England in 1789, because that centuries-old English common law is a necessary foundation to interpreting modern criminal statutes.) ACER Aspire 5612 Laptop Keyboard With the transition from English law, which had common law crimes, to the new legal system under the U.S. Constitution, which prohibited ex post facto laws at both the federal and state level, the question was raised whether there could be common law crimes in the United States. It was settled in the case of United States v. Hudson and Goodwin, 11 U.S. 32 (1812), which decided that federal courts had no jurisdiction to define new common law crimes, and that there must always be a (constitutional) statute defining the offense and the penalty for it. TOSHIBA Satellite L655-S5158 Laptop Keyboard Still, many states retain selected common law crimes. For example, in Virginia, the definition of the conduct that constitutes the crime of robbery exists only in the common law, and the robbery statute only sets the punishment.[36] Virginia Code section 1-200 establishes the continued existence and vitality of common law principles and provides that "The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly." DELL Studio 1458 Laptop Keyboard By contrast to statutory codification of common law, some statutes displace common law, for example to create a new cause of action that did not exist in the common law, or to legislatively overrule the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child orestate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. SAMSUNG NP-N150-JP01 Laptop Keyboard Where a wrongful death statute exists, the compensation or other remedy available is limited to the remedy specified in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly – that is, limited to their precise terms—because the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some "second order" constitutional law provision (cf. judicial activism). SONY 148024022 Laptop Keyboard Where a tort is rooted in common law, all traditionally recognized damages for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death. HP Pavilion DV6-1002tx Laptop Keyboard In the United States, the power of the federal judiciary to review and invalidate unconstitutional acts of the federal executive branch is stated in the constitution, Article III sections 1 and 2: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. ... The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority..." The first famous statement of "the judicial power" was Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Later cases interpreted the "judicial power" of Article III to establish the power of federal courts to consider or overturn any action of Congress or of any state that conflicts with the Constitution. HP Pavilion G7-1081NR Laptop Keyboard The United States federal courts are divided into twelve regional circuits, each with a circuit court of appeals (plus a thirteenth, the Court of Appeals for the Federal Circuit, which hears appeals in patent cases and cases against the federal government, without geographic limitation). Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself, but are only persuasive authority on sister circuits. District court decisions are not binding precedent at all, only persuasive. HP 605344-001 Laptop Keyboard Most of the U.S. federal courts of appeal have adopted a rule under which, in the event of any conflict in decisions of panels (most of the courts of appeal almost always sit in panels of three), the earlier panel decision is controlling, and a panel decision may only be overruled by the court of appeals sitting en banc (that is, all active judges of the court) or by a higher court.[37] In these courts, the older decision remains controlling when an issue comes up the third time.  HP Envy 15-1050nr Laptop Keyboard Other courts, for example, the Court of Customs and Patent Appeals and the Supreme Court, always sit en banc, and thus the later decision controls. These courts essentially overrule all previous cases in each new case, and older cases survive only to the extent they do not conflict with newer cases. The interpretations of these courts - for example, Supreme Court interpretations of the constitution or federal statutes - are stable only so long as the older interpretation maintains the support of a majority of the court. Older decisions persist through some combination of belief that the old decision is right, and that it is not sufficiently wrong to be overruled.[citation needed]HP 605344-001 Laptop Keyboard In the UK, since 2009, the Supreme Court of the United Kingdom has the authority to overrule and unify decisions of lower courts. From 1966 to 2009, this powerlay with the House of Lords, granted by the Practice Statement of 1966.[38] Canada's system, described below, avoids regional variability of federal law by giving national jurisdiction to both layers of appellate courts. DELL 454RX Laptop Keyboard The reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States. Because there is reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful. This ability to predict gives more freedom to come close to the boundaries of the law.[39] For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, though perhaps close to the line, is almost certainly legal. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply. ACER Aspire 5742 Laptop Keyboard In contrast, in non-common-law countries, and jurisdictions with very weak respect for precedent (example, the U.S. Patent Office), fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult, and procedures far more protracted than necessary because parties cannot rely on written statements of law as reliable guides. In jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less a priori guidance and must often leave a bigger "safety margin" of unexploited opportunities, and final determinations are reached only after far larger expenditures on legal fees by the parties. TOSHIBA Satellite L655D-SP5012M Laptop Keyboard This is the reason for the frequent choice of the law of the State of New York in commercial contracts.[40] Commercial contracts almost always include a "choice of law clause" to reduce uncertainty. Somewhat surprisingly, contracts throughout the world (for example, contracts involving parties in Japan, France and Germany, and from most of the other states of the United States) often choose the law of New York, even where the relationship of the parties and transaction to New York is quite attenuated. HP pavilion DV7-1000 Laptop Keyboard Because of its history as the nation's commercial center, New York common law has a depth and predictability not (yet) available in any other jurisdiction. Similarly, corporations are often formed under Delaware corporate law, and contracts relating to corporate law issues (merger and acquisitions of companies, rights of shareholders, and so on.) include a Delaware choice of law clause, because of the deep body of law in Delaware on these issues.[41] On the other hand, some other jurisdictions have sufficiently developed bodies of law so that parties have no real motivation to choose the law of a foreign jurisdiction (for example, England and Wales, HP Pavilion dv5-1203em Laptop Keyboard and the state of California), but not yet so fully developed that parties with no relationship to the jurisdiction choose that law.[42] The common theme in each case is that commercial parties seek predictability and simplicity in their contractual relations, and frequently choose the law of a common law jurisdiction with a well-developed body of common law to achieve that result. ACER Aspire 7736ZG Laptop Keyboard Likewise, for litigation of commercial disputes arising out of unpredictable torts (as opposed to the prospective choice of law clauses in contracts discussed in the previous paragraph), certain jurisdictions attract an unusually high fraction of cases, because of the predictability afforded by the depth of decided cases. For example, London is considered the pre-eminent centre for litigation of admiralty cases.[43]HP G56-127NR Laptop Keyboard This is not to say that common law is better in every situation. For example, civil law can be clearer than case law when the legislature has had the foresight and diligence to address the precise set of facts applicable to a particular situation. For that reason, civil law statutes tend to be somewhat more detailed than statutes written by common law legislatures – but, conversely, that tends to make the statute more difficult to read (the United States tax code is an example).[44] Nonetheless, as a practical matter, no civil law legislature can ever address the full spectrum of factual possibilities in the breadth, depth and detail of the case law of the common law courts of even a smaller jurisdiction, and that deeper, more complete body of law provides additional predictability that promotes commerce. HP Pavilion dv6-3019wm Laptop Keyboard The term "common law" originally derives from the 1150s and 1160s, when Henry II of England established the secular English tribunals. The "common law" was the law that emerged as "common" throughout the realm (as distinct from the various legal codes that preceded it, such as Mercian law, the Danelaw and the law ofWessex)[45] as the king's judges followed each other's decisions to create a unified common law throughout England. The doctrine of precedent developed during the 12th and 13th centuries,[46] as the collective judicial decisions that were based in tradition, custom and precedent.[47]HP 496878-001 Laptop Keyboard The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as developing the body of law recognizing and regulating contracts. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law. SAMSUNG N140 Laptop Keyboard In the late 800s, Alfred the Great assembled the Doom book (not to be confused with the more-famous Domesday Book from 200 years later), which collected the existing laws of Kent, Wessex, and Mercia, and attempted to blend in the Mosaic code, Christian principles, and Germanic customs dating as far as the fifth century.[48]SONY VAIO VGN-FW180D Laptop Keyboard Before the Norman conquest in 1066, justice was administered primarily by what is today known as the county courts (the modern "counties" were referred to as "Shires" in pre-Norman times), presided by the diocesan bishop and the sheriff, exercising both ecclesiastical and civil jurisdiction.[49] Trial by jury began in these courts.[49][citation needed]TOSHIBA Satellite L505-S5984 Laptop Keyboard In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system – citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems. SONY Vaio PCG-K37 laptop keyboard Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as stare decisis (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge; Lenovo 0A62075 laptop keyboard he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. Once judges began to regard each other's decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was (at least in theory, though not always in practice) common throughout the whole country, hence the name "common law." HP G56-127NR laptop keyboard Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously with Thomas Becket, the Archbishop of Canterbury. Eventually, Becket was murdered inside Canterbury Cathedral by four knights who believed themselves to be acting on Henry's behalf. Whether Henry actually intended to bring about the assassination of Becket is debatable, but there is no question that at the time of the murder, the two men were embroiled in a bitter dispute regarding the power of Royal Courts to exercise jurisdiction over former clergymen. The murder of the Archbishop gave rise to a wave of popular outrage against the King. Henry was forced to repeal the disputed laws and to abandon his efforts to hold church members accountable for secular crimes (see also Constitutions of Clarendon). GATEWAY M-1629 laptop keyboard Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is simply a layer applied on top of the older common law foundation. Since the 12th century, courts have had parallel and co-equal authority to make law[50] -- "legislating from the bench" is a traditional and essential function of courts, SONY 148023121 laptop keyboard which was carried over into the U.S. system as an essential component of the "judicial power" specified by Article III of the U.S. constitution.[51] Justice Oliver Wendell Holmes, Jr. observed in 1917 that "judges do and must legislate."[52] There are legitimate debates on how the powers of courts and legislatures should be balanced. However, a view that courts lack law-making power is historically inaccurate and constitutionally unsupportable. Lenovo 45N2240 laptop keyboard The term "common law" (connotation 2) is often used as a contrast to Roman-derived "civil law", and the fundamental processes and forms of reasoning in the two are quite different. Nonetheless, there has been considerable cross-fertilization of ideas, while the two traditions and sets of foundational principles remain distinct.  IBM Thinkpad Z61t laptop keyboard By the time of the rediscovery of the Roman law in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent.[53] However, the first common law scholars, most notably Glanvill and Bracton, as well as the early royal common law judges, had been well accustomed with Roman law. Often, they were clerics trained in the Roman canon law.[54] One of the first and throughout its history one of the most significant treatises of the common law, Bracton’s De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), was heavily influenced by the division of the law in Justinian’s Institutes.[55] SONY 148738121 laptop keyboard The impact Roman law had decreased sharply after the age of Bracton, but the Roman divisions of actions into in rem (typically, actions against a thing or property for the purpose of gaining title to that property; must be filed in a court where the property is located) and in personam (typically, actions directed against a person; these can affect a person's rights and, since a person often owns things, his property too) used by Bracton had a lasting effect and laid the groundwork for a return of Roman law structural concepts in the 18th and 19th centuries. SONY VGN-FE780G laptop keyboard Signs of this can be found in Blackstone’s Commentaries on the Laws of England,[56] and Roman law ideas regained importance with the revival of academic law schools in the 19th century.[57] As a result, today, the main systematic divisions of the law into property, contract, and tort (and to some extent unjust enrichment) can be found in the civil law as well as in the common law.[58]HP Pavilion DV6-1319tx laptop keyboard Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. DELL Vostro 3450 Laptop Keyboard For it hath been held, that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force... But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country. ACER Aspire 1693 laptop keyboard In other words, if an 'uninhabited' or 'infidel' territory is colonized by Britain, then the English law automatically applies in this territory from the moment of colonization; however if the colonized territory has a pre-existing legal system, the native law would apply (effectively a form of indirect rule) until formally superseded by the English law, through Royal Prerogative subjected to the Westminster Parliament. FUJITSU Amilo Mini Ui 3520 Laptop Keyboard As colonies gained independence from Britain, in most cases the newly independent countries adopted English common law precedent as of the date of independence as the default law to carry forward into the new nation, to the extent not explicitly rejected by the newly freed colony's founding documents or government. In some cases, the carry-forward was simply understood, with no express provision in either the new independence constitution or legislation. In other cases, the new legislature felt it necessary to "dot i's and cross t's" by enacting an express reception statute, even if common law had been received during the colonial period. Examples of both patterns are described below. ACER Aspire 5742 Laptop Keyboard For example, following the American Revolution in 1776, one of the first legislative acts undertaken by each of the newly independent states was to adopt a "reception statute" that gave legal effect to the existing body of English common law to the extent that American legislation or the Constitution had not explicitly rejected English law.[59] FUJITSU Amilo Mini Ui 3520 Laptop Keyboard Some states enacted reception statutes as legislative statutes, while other states received the English common law through provisions of the state's constitution, and some by court decision. British traditions such as the monarchy were rejected by the U.S. Constitution, but many English common law traditions such as habeas corpus, jury trials, and various other civil liberties were adopted in the United States. Significant elements of English common law prior to 1776 still remain in effect in many jurisdictions in the United States, because they have never been rejected by American courts or legislatures.[60]ACER Aspire 5610Z Laptop Keyboard For example, the New York Constitution of 1777[61] provides that: [S]uch parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. ACER Aspire 5742 Laptop Keyboard Alexander Hamilton emphasized in The Federalist that this New York constitutional provision expressly made the common law subject "to such alterations and provisions as the legislature shall from time to time make concerning the same."[62] Thus, even when reception was effected by a constitution, the common law was still subject to alteration by a legislature's statute. APPLE A1278 Laptop Keyboard One could note a certain irony: one of the first acts of many of the newly independent states was to adopt the law of the foreign sovereign from whom independence had just been gained. But this is one more demonstration of the point mentioned above (Commercial economies), that the newly independent states recognized the importance of a predictable and established body of law to govern the conduct of citizens and businesses, and therefore adopted the richest available source of law. HP Pavilion dv6-3178ee Laptop Keyboard The Northwest Ordinance, which was approved by the Congress of the Confederation in 1787, guaranteed "judicial proceedings according to the course of the common law." Nathan Dane, the primary author of the Northwest Ordinance, viewed this provision as a default mechanism in the event that federal or territorial statutes were silent about a particular matter; he wrote that if "a statute makes an offence, and is silent as to the mode of trial, it shall be by jury, according to the course of the common law."[63] In effect, the provision operated as a reception statute, giving legal authority to the established common law in the vast territories where no states had yet been established. TOSHIBA Satellite M115 Series laptop keyboard Over time, as new states were formed from federal territories, these territorial reception statutes became obsolete and were re-enacted as state law. For example, a reception statute enacted by legislation in the state of Washington requires that "[t]he common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state."[64] In this way, the common law was eventually incorporated into the legal systems of every state except Louisiana (which inherited a civil law system from its French colonizers before the Louisiana Purchase of 1803, adopting a code similar to but not directly based on the Napoleonic Code of 1804). ACER Aspire 4810T-8480 laptop keyboard The Canadian colonies received the common law and English statutes under Blackstone's principles for the establishment of the legal system of a new colony. In five of the Canadian provinces, English law was received automatically, under the principle of a settled colony inheriting English law. In the other five provinces and the three territories, reception was governed by reception statutes. The reception of English law occurred long before Canada became fully independent, and reception statutes in Canada were not part of the decolonisation process. TOSHIBA Tecra A9 laptop keyboard When Canada achieved formal independence with the passage of the Canada Act 1982, no reception statutes were necessary for the decolonialisation process. English law had already been received in the various Canadian provinces and territories by legislation and judicial decisions over the previous two centuries. HP Pavilion dv6-3110sl laptop keyboard In the four Atlantic provinces (Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland and Labrador), the reception of English law was automatic, under the principle set out by Blackstone relating to settled colonies. British colonists were considered to have brought English common law as well as applicable English statutes with them. No reception statute was necessary. The reception date for New Brunswick is 1660; HP Pavilion dv5-1003nr laptop keyboard Quebec was settled as a French colony, and originally operated under the French civil law system, using the coûtume de Paris. Upon the transfer of the colony to British control, the British government issued the Royal Proclamation of 1763, which imposed English common law on the colony, under the principle set out in Blackstone relating to captured colonies. However, in 1774, the British Parliament passed the Quebec Act, which restored the French civil law for matters of private law (e.g., contracts, property, successions), ACER Aspire 5742 Laptop Keyboard while keeping the English common law as the basis for public law in the colony, notably the criminal law. Subsequently, with the passage of the Civil Code of Lower Canada in 1866, Quebec's civil law became entirely statute based, using the civil law system for matters within provincial jurisdiction. Public law in Quebec continues to have its origin in the common law, but even here civil law plays a strong role. Where federal legislation requires interpretation, judges must look to the Civil Code of Quebec.[65]  DELL Inspiron 1750 Laptop Keyboard The territory now forming Ontario was originally part of Quebec, and thus was under the civil law. When Quebec was divided into the two provinces of Upper and Lower Canada by the Constitutional Act of 1791, the first Act passed by the Legislature of Upper Canada was to adopt the law of England for all purposes, replacing the civil law.[66] This statute adopted both the English common law and English statute law. The foundation for the operation of the common law in Ontario traces back to that reception statute. HP G42-415DX Laptop Keyboard The new Dominion of Canada acquired the territories of Rupert's Land and the North-Western Territory from the Hudson's Bay Company in 1870. These territories were considered to have been settled by British colonists, and therefore the reception of English law was automatic. However, given the long history of control by the Hudson's Bay Company, there was some uncertainty as to the date of reception. To resolve this uncertainty, various statutes were passed to set the date of reception as July 15, 1870, the date of the transfer of these two territories to Canada. HP Pavilion dv4-1242tx Laptop Keyboard The Province of Manitoba set this date for the reception of English law for matters coming within provincial jurisdiction. The Legislature of the North-West Territories passed an Ordinance adopting the same date for matters coming within territorial jurisdiction. The federal Parliament eventually enacted a provision adopting this date for all matters in the North-West Territories.[67] That provision was carried forward in the provinces of Alberta and Saskatchewan, when they were created by the Alberta Act[68] and theSaskatchewan Act.[69] The same provision is the basis for the reception date of English law in the Northwest Territories, Yukon and Nunavut.  FUJITSU Lifebook E8310 Laptop Keyboard When Hong Kong was handed over to China in 1997, Hong Kong retained the common law through a reception statute in Chapter I, Article 8 of the Hong Kong Basic Law:[70] The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region. ACER Aspire 5742 Laptop Keyboard The pattern was repeated in many other former British colonies as they gained independence from the United Kingdom. Ireland, Australia, New Zealand, India,Belize, and various Caribbean and African nations have adopted English common law through reception statutes although they do not inevitably continue to copy English Common Law; later cases can often draw on decisions in other Common Law jurisdictions. SONY VAIO VGN-FS742/W Laptop Keyboard Well into the 19th century, ancient maxims played a large role in common law adjudication. Many of these maxims had originated in Roman Law, migrated to England before the introduction of Christianity to the British Isles[citation needed], and were typically stated in Latin even in English decisions. Many examples are familiar in everyday speech even today, "One cannot be a judge in one's own cause" (see Dr. Bonham's Case), rights are reciprocal to obligations, and the like. Judicial decisions and treatises of the 17th and 18th centuries, such at those of Lord Chief Justice Edward Coke, presented the common law as a collection of such maxims. See also Thomas Jefferson's letter to Thomas Cooper. SONY VAIO VGN-CR520E Laptop Keyboard Reliance on old maxims and rigid adherence to precedent, no matter how old or ill-considered, was under full attack by the late 19th century. Oliver Wendell Holmes, Jr. in his famous article, "The Path of the Law",[71] commented, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Justice Holmes noted that study of maxims might be sufficient for "the man of the present," but "the man of the future is the man of statistics and the master of economics." In an 1880 lecture at Harvard, he wrote: DELL Vostro 3450 Laptop Keyboard The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. TOSHIBA Mini NB 505-SP0160 Laptop Keyboard In the early 20th century, Louis Brandeis, later appointed to the United States Supreme Court, became noted for his use of policy-driving facts and economics inhis briefs, and extensive appendices presenting facts that lead a judge to the advocate's conclusion. By this time, briefs relied more on facts than on Latin maxims. SONY VAIO VGN-CS13M/W Laptop Keyboard Reliance on old maxims is now deprecated.[72] Common law decisions today reflect both precedent and policy judgment drawn from economics, the social sciences, business, decisions of foreign courts, and the like. The degree to which these external factors should influence adjudication is the subject of active debate, but that judges do draw of learning from other fields and jurisdictions is a fact of modern legal life. HP 636376-001 Laptop Keyboard As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other,[73] even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens.[74]HP Pavilion dm3-1020CA Laptop Keyboard In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict.[74] In the United States, parallel systems of law (providing money damages, with cases heard by a jury upon either party's request) and equity (fashioning a remedy to fit the situation, including injunctive relief, heard by a judge) survived well into the 20th century. The United States federal courts procedurally separated law and equity: the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, and the two kinds of cases proceeded under different procedural rules. HP 550 Laptop Keyboard This became problematic when a given case required both money damages and injunctive relief. In 1937, the newFederal Rules of Civil Procedure combined law and equity into one form of action, the "civil action." Fed.R.Civ.P. 2. The distinction survives to the extent that issues that were "common law" as of 1791 (the date of adoption of the Seventh Amendment) are still subject to the right of either party to request a jury, and "equity" issues are decided by a judge.[75]SONY 147963021 Laptop Keyboard Alabama, Delaware, Mississippi, New Jersey, Tennessee still have separate courts of law and equity, for example, the Court of Chancery. In many states there are separate divisions for law and equity within one court. For centuries, through the 19th century, the common law recognized only specific forms of action, and required very careful drafting of the opening pleading (called a writ) to slot into one of them: Debt, Detinue, Covenant, Special Assumpsit, General Assumpsit, Trespass, Trover, Replevin, Case (or Trespass on the Case), and Ejectment.[76] To initiate a law suit, a pleading had to be drafted to meet myriad technical requirements: correctly categorizing the case into the correct legal pigeonhole (pleading in the alternative was not permitted), and using specific "magic words" encrusted over the centuries. Under the old common law pleading standards, a suit by a pro se ("for oneself," without a lawyer) party was all but impossible, and there was often considerable procedural jousting at the outset of a case over minor wording issues. DELL NSK-D8001 Laptop Keyboard One of the major reforms of the late 19th century and early 20th century was the abolition of common law pleading requirements.[77] A plaintiff can initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong. This reform moved the attention of courts from technical scrutiny of words to a more rational consideration of the facts, and opened access to justice far more broadly. HP Envy 15-1050nr Laptop Keyboard Common law courts tend to use an adversarial system, in which two sides present their cases to a neutral judge. In contrast, in civil law systems, inquisitorial system proceedings, where an examining magistrate serves two roles by developing the evidence and arguments for one and the other side during the investigation phase. DELL Vostro 3450 Laptop Keyboard The examining magistrate then presents the dossier detailing his or her findings to the president of the bench that will adjudicate on the case where it has been decided that a trial shall be conducted. Therefore the president of the bench's view of the case is not neutral and may be biased while conducting the trial after the reading of the dossier. Unlike the common law proceedings, the president of the bench in the inquisitorial system is not merely an umpire and is entitled to directly interview the witnesses or express comments during the trial, as long as he or she does not express his or her view on the guilt of the accused. ACER Aspire 5742 Laptop Keyboard The proceeding in the inquisitorial system is essentially by writing. Most of the witnesses would have given evidence in the investigation phase and such evidence will be contained in the dossier under the form of police reports. In the same way, the accused would have already put his or her case at the investigation phase but he or she will be free to change her or his evidence at trial. Whether the accused pleads guilty or not, a trial will be conducted. Unlike the adversarial system, the conviction and sentence to be served (if any) will be released by the trial jury together with the president of the trial bench, following their common deliberation. HP 550 Laptop Keyboard There are many exceptions in both directions. For example, most proceedings before U.S. federal and state agencies are inquisitorial in nature, at least the initial stages (e.g., a patent examiner, a social security hearing officer, and so on.) even though the law to be applied is developed through common law processes. SONY VGN-FE11H Laptop Keyboard In common law jurisdictions, legal treatises compile common law decisions, and state overarching principles that (in the author's opinion) explain the results of the cases. However, in common law jurisdictions, treatises are not the law, and lawyers and judges tend to use these treatises as only "finding aids" to locate the relevant cases. In common law jurisdictions, scholarly work is seldom cited as authority for what the law is.[78] When common law courts rely on scholarly work, it is almost always only for factual findings, policy justification, or the history and evolution of the law, but the court's legal conclusion is reached through analysis of relevant statutes and common law, seldom scholarly commentary. SONY VAIO VGN-NR21Z/S Laptop Keyboard In contrast, in civil law jurisdictions, the writings of law professors are given significant weight by courts. In part, this is because civil law decisions traditionally were very brief, sometimes no more than a paragraph stating who wins and who loses. The rationale has to come from somewhere else, and the academy often filled that role. As civil law court decisions move in the direction of common law reasoning, it is possible that this balance may shift.[citation needed]ACER Aspire 5742 Laptop Keyboard The common law constitutes the basis of the legal systems of: England and Wales andNorthern Ireland in the UK, Ireland, federal law in the United States and the law of individual U.S. states (except Louisiana), federal law throughout Canada and the law of the individual provinces and territories (except Quebec), Australia (both federal and individual states), Kenya, New Zealand, South Africa, India,Myanmar,[9] Malaysia,Bangladesh, Brunei, Pakistan, Singapore, Hong Kong, Antigua and Barbuda, Barbados, Bahamas, Belize, Dominica, Grenada, Jamaica, SONY VAIO VGN-N21S/W Laptop Keyboard St Vincent and the Granadines, Saint Kitts and Nevis, Trinidad and Tobago, and many other generally English-speaking countries or Commonwealth countries (except the UK's Scotland, which is bijuridicial, and Malta). Essentially, every country that was colonised at some time by England,Great Britain, or the United Kingdom uses common law except those that were formerly colonised by other nations, such as Quebec (which follows the law of France in part), South Africa and Sri Lanka (which follow Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India uses common law except in the state of Goa which retains the Portuguese civil code. Guyana and Saint Lucia have mixed Common Law and Civil Law systems. SAMSUNG N140 Laptop Keyboard Scotland is often said to use the civil law system but it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707 (see Legal institutions of Scotland in the High Middle Ages). Scots common law differs in that the use of precedents is subject to the courts' seeking to discover the principle that justifies a law rather than searching for an example as a precedent, and principles of natural justice and fairness have always played a role in Scots Law. Comparable pluralistic (or 'mixed') legal systems operate in Quebec, Louisiana and South Africa. HP Pavilion dv6-2120ej laptop keyboard The state of New York, which also has a civil law history from its Dutch colonial days, also began a codification of its law in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherlands was settled by the Dutch and the law was also Dutch. When the English captured pre-existing colonies they continued to allow the local settlers to keep their civil law.  HP Envy 15-1050nr laptop keyboard However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherland they forced, as a punishment unique in the history of the British Empire, the English common law upon all the colonists, including the Dutch. This was problematic, as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-19th century. The influence of Roman Dutch law continued in the colony well into the late 19th century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days. HP Pavilion dv3-2120ea laptop keyboard ACER KB.T3007.001 laptop keyboard Uniquely among U.S. states, Louisiana's codified system, the Louisiana Civil Code, is based on principles of law from continental Europe instead of common law. These principles derive ultimately from Roman law, transmitted through Spanish and French law, as the state's current territory intersects the area of North America colonized by Spain and by France. Contrary to popular belief, the Louisiana code does not directly derive from the Napoleonic Code, as the latter was enacted in 1804, one year after the Louisiana Purchase. However, the two codes are similar in many respects due to common roots. COMPAQ Presario CQ50-139NR laptop keyboard Historically notable among the Louisiana code's differences from common law is the role of property rights among women, particularly in inheritance gained by widows. SONY VAIO VGN-N31M laptop keyboard The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the 19th century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. TOSHIBA Satellite M105-S3004 laptop keyboard The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case Li v. Yellow Cab Co., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle ofcomparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.) FUJITSU Lifebook E8310 laptop keyboard The United States federal government (as opposed to the states) has a variant on a common law system. United States federal courts only act as interpreters of statutes and the constitution by elaborating and precisely defining the broad language (connotation 1(b) above), but, unlike state courts, do not act as an independent source of common law (connotation 1(a) above). SONY 1-480-240-22 laptop keyboard Before 1938, the federal courts, like almost all other common law courts, decided the law on any issue where the relevant legislature (either the U.S. Congress or state legislature, depending on the issue), had not acted, by looking to courts in the same system, that is, other federal courts, even on issues of state law, and even where there was no express grant of authority from Congress or the Constitution. SONY VAIO VGN-CS13M/W laptop keyboard In 1938, the U.S. Supreme Court in Erie Railroad Co. v. Tompkins 304 U.S. 64, 78 (1938), overruled earlier precedent,[79] and held

"There is no federal general common law," thus confining the federal courts to act only as interpreters of law originating elsewhere. E.g.Texas Industries v. Radcliff, 451 U.S. 630(1981) (without an express grant of statutory authority, federal courts cannot create rules of intuitive justice, for example, a right to contribution from co-conspirators). Post-1938, federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution. ACER TravelMate 2480 laptop keyboard Later courts have limited Erie slightly, to create a few situations where United States federal courts are permitted to create federal common law rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests, such as foreign affairs, or financial instruments issued by the federal government. See, e.g.Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) (giving federal courts the authority to fashion common law rules with respect to issues of federal power, FUJITSU Amilo Mini Ui 3520 Laptop Keyboard in this case negotiable instruments backed by the federal government); see alsoInternational News Service v. Associated Press, 248 U.S. 215 (1918) (creating a cause of action for misappropriation of "hot news" that lacks any statutory grounding, but that is one of the handful of federal common law actions that survives today); National Basketball Association v. Motorola, Inc., 105 F.3d 841, 843-44, 853 (2d Cir. 1997) (noting continued vitality of INS "hot news" tort under New York state law, but leaving open the question of whether it survives under federal law). Except on Constitutional issues, Congress is free to legislatively overrule federal courts' common law.[80]FUJITSU Siemens M1010 Laptop Keyboard Indian Law is largely based on English common law because of the long period of British colonial influence during the period of the British Raj. After the failed rebellion against the British in 1857, the British Parliament took over the reign of India from the British East India Company, and British India came under the direct rule of the Crown. The British Parliament passed the Government of India Act of 1858 to this effect, which set up the structure of British government in India. It established in England the office of the Secretary of State for India through whom the Parliament would exercise its rule, along with a Council of Indiato aid him. It also established the office of the Governor-General of India along with an Executive Council in India, which consisted of high officials of the British Government. ACER Aspire 5610Z Laptop Keyboard Much of contemporary Indian law shows substantial European and American influence. Various legislations first introduced by the British are still in effect in their modified forms today. During the drafting of the Indian Constitution, laws from Ireland, the United States, Britain, and France were all synthesized to get a refined set of Indian laws, as it currently stands. Indian laws also adhere to the United Nations guidelines on human rights law and the environmental law. Certaininternational trade laws, such as those on intellectual property, are also enforced in India. HP Pavilion DV6-1002tx Laptop Keyboard Indian family law is complex, with each religion adhering to its own specific laws. In most states, registering marriages and divorces is not compulsory. There are separate laws governing Hindus, Muslims, Christians, Sikhs and followers of other religions. The exception to this rule is in the state of Goa, where a Portuguese uniform civil code is in place, in which all religions have a common law regarding marriages, divorces and adoption. DELL Latitude D620 Laptop Keyboard Ancient India represented a distinct tradition of law, and had an historically independent school of legal theory and practice. The Arthashastra, dating from 400 BCE and the Manusmriti, from 100 CE, were influential treatises in India, texts that were considered authoritative legal guidance.[81] Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.[82] Early in this period, which finally culminated in the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. HP AELX6U00210 Laptop Keyboard The appearance of similar fundamental institutions of international law in various parts of the world show that they are inherent in international society, irrespective of culture and tradition.[83] Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, in rules of neutrality, of treaty law, of customary law embodied in religious charters, in exchange of embassies of a temporary or semi-permanent character.[84] When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law.[85] As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.[86]TOSHIBA Satellite U305-S5097 Laptop Keyboard All but one of the provinces of Canada use a common law system (the exception being Quebec, which uses a civil law system for issues arising within provincial jurisdiction, such as property ownership and contracts). Criminal law, which is uniform throughout Canada, is based on the common law as interpreted by theSupreme Court of Canada. The mid-tier Federal Court of Appeal is a single court that sits and hears cases in multiple cities, and thus mid-tier decisions have precedential value throughout Canada (that is, unlike the United States, Canada is not divided into appellate circuits).[88] Canadian federal statutes[89] must use the terminology of both the common law and civil law for those matters; this is referred to as legislative bijuralism.[90]HP Pavilion G6-1C58DX Laptop Keyboard Nicaragua's legal system also is a mixture of the English Common Law and the Civil Law through the influence of British administration of the Eastern half of the country from the mid-17th century until about 1905, the William Walker period from about 1855 through 1857, USA interventions/occupations during the period from 1909 to 1933, the influence of USA institutions during the Somoza family administrations (1933 through 1979) and the considerable importation between 1979 and the present of USA culture and institutions. IBM Lenovo Thinkpad X301 2779 Laptop Keyboard ommon law and civil law. While Israeli law is undergoing codification, its basic principles are inherited from the law of theBritish Mandate of Palestine and thus resemble those of British and American law, namely: the role of courts in creating the body of law and the authority of the supreme court in reviewing and if necessary overturning legislative and executive decisions, as well as employing the adversarial system. One of the primary reasons that the Israeli constitution remains unwritten is the fear by whatever party holds power that creating a written constitution, combined with the common-law elements, would severely limit the powers of the Knesset (which, following the doctrine of parliamentary sovereignty, holds near-unlimited power).[91]HP Pavilion dv6-2020ev Laptop Keyboard Roman Dutch Commons law is a bijuridical or mixed system of law similar to the common law system in Scotland and Louisiana. Roman Dutch common law jurisdictions include South Africa, Botswana, Lesotho, Namibia, Swaziland, Sri-Lanka and Zimbabwe. Many of these jurisdictions recognise customary law, and in some, such as South Africa the Constitution requires that the common law be developed in accordance with the Bill of Rights. Roman Dutch common law is a development of Roman Dutch law by courts in the Roman Dutch common law jurisdictions. During the Napoleonic wars the Kingdom of the Netherlands adopted the French code civil in 1809, IBM Lenovo Thinkpad X201 Laptop Keyboard however the Dutch colonies in the Cape of Good Hope and Sri Lanka, at the time called Ceylon, were seized by the British to prevent them being used as bases by the French Navy. The system was developed by the courts and spread with the expansion of British colonies in Southern Africa. Roman Dutch common law relies on legal principles set out in Roman law sources such as Justinian's Institutes and Digest, and also on the writing of Dutch jurists of the 15th century such as Grotius and Voet. In practice the majority of decisions rely on recent precedent. SONY VAIO VGN-N21S/W Laptop Keyboard The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The contrast between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (similar to case law but not binding) in civil law countries, and the growing importance of statute law and codes in common law countries. HP Mini 110-1119NR laptop keyboard Examples of common law being replaced by statute or codified rule in the United States include criminal law (since 1812, U.S. courts have held that criminal law must be embodied in statute if the public is to have fair notice), commercial law (the Uniform Commercial Code in the early 1960s) and procedure (the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s). But note that in each case, the statute sets the general principles, but the common law process determines the scope and application of the statute. Packard Bell Easynote LM85 laptop keyboard An example of convergence from the other direction is shown in Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health, in which the European Court of Justice held that questions it has already answered need not be resubmitted. This brought in a distinctly common law principle into an essentially civil law jurisdiction.  FUJITSU 71-31779-00 laptop keyboard

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