common law and statute law pdf

Common law and statute law pdf

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Constitutional Law

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Common law

In law , common law also known as judicial precedent or judge-made law, or case law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.

Constitutional Law

Law comes from three places, which are referred to as the sources of law. The first source of law is constitutional law. The purpose of federal and state constitutions is to regulate government action. Private individuals are protected by the Constitution, but they do not have to follow it themselves. The federal and state constitutions are both written with words that can be subject to more than one interpretation. For safety and security reasons, we see more exceptions to constitutional protections in public schools and prisons.

For example, public schools and prisons can mandate a certain style of dress for the purpose of ensuring safety. Technically, forcing an individual to dress a specific way could violate the right to self-expression, which the First Amendment guarantees. However, if wearing a uniform can lower gang-related conflicts in school and prevent prisoners from successfully escaping, the government can constitutionally suppress free speech in these locations.

Of the three sources of law, constitutional law is considered the highest and should not be supplanted by either of the other two sources of law. Pursuant to principles of federal supremacy, the federal or US Constitution is the most preeminent source of law, and state constitutions cannot supersede it.

The second source of law is statutory law. While the Constitution applies to government action, statutes apply to and regulate individual or private action.

A statute is a written and published law that can be enacted in one of two ways. Most statutes are written and voted into law by the legislative branch of government. This is simply a group of individuals elected for this purpose. The US legislative branch is called Congress , and Congress votes federal statutes into law. Every state has a legislative branch as well, called a state legislature , and a state legislature votes state statutes into law. Often, states codify their criminal statutes into a penal code.

State citizens can also vote state statutes into law. Although a state legislature adopts most state statutes, citizens voting on a ballot can enact some very important statutes. Statutory law is inferior to constitutional law , which means that a statute cannot conflict with or attempt to supersede constitutional rights. If a conflict exists between constitutional and statutory law, the courts must resolve the conflict. Courts can invalidate unconstitutional statutes pursuant to their power of judicial review , which is discussed in an upcoming section.

Other written and published laws that apply to individuals are administrative laws and ordinances. Administrative laws and ordinances should not supersede or conflict with statutory law. Administrative laws are enacted by administrative agencies , which are governmental agencies designed to regulate in specific areas. Administrative agencies can be federal or state and contain not only a legislative branch but also an executive enforcement branch and judicial court branch.

Ordinances usually relate to health, safety, or welfare, and violations of them are typically classified as infractions or misdemeanors , rather than felonies. State criminal laws differ significantly, so in the early s a group of legal scholars, lawyers, and judges who were members of the American Law Institute drafted a set of suggested criminal statutes called the Model Penal Code.

While the Model Penal Code has not been universally adopted, a majority of the states have incorporated portions of it into their penal codes, and the Model Penal Code survives as a guideline and focal point for discussion when state legislatures modify their criminal statutes. The third source of law is case law. When judges rule on the facts of a particular case, they create case law. Federal case law comes from federal courts, and state case law comes from state courts.

Case law has its origins in English common law. In Old England, before the settlement of the United States, case law was the most prevalent source of law. This was in contrast to countries that followed the Roman Law system, which primarily relied on written codes of conduct enacted by legislature. Case law in England was mired in tradition and local customs. Societal principles of law and equity were the guidelines when courts issued their rulings.

In an effort to be consistent, English judges made it a policy to follow previous judicial decisions, thereby creating a uniform system of laws throughout the country for the first time. Case law was named common law because it was common to the entire nation Duhaime, L. The English system of jurisprudence made its way to the United States with the original colonists.

Initially, the thirteen colonies unanimously adopted common law as the law of the land. All crimes were common-law crimes, and cases determined criminal elements, defenses, and punishment schemes. Gradually, after the Revolutionary War, hostility toward England and modern reform led to the erosion of common-law crimes and a movement toward codification.

States began replacing common-law crimes with statutes enacted by state legislatures. In modern society, in many states and the federal government United States v. This violates notions of fairness.

Making up a new crime and punishing the defendant for it does not provide consistency or predictability to our legal system. In states that do not allow common-law crimes, statutes must define criminal conduct. The common law still plays an important role in criminal lawmaking, even though most crimes are now embodied in statutes. Classification of crimes as felonies and misdemeanors is a reflection of English common law. Legislatures often create statutes out of former common-law crimes.

Judges look to the common law when defining statutory terms, establishing criminal procedure, and creating defenses to crimes. The United States is considered a common-law country.

Every state except Louisiana, which is based on the French Civil Code, adopts the common law as the law of the state except where a statute provides otherwise Legal Definition, Read Keeler v. Superior Court , P. In Keeler , the defendant attacked his pregnant ex-wife, and her baby was thereafter stillborn. Penal Code, Generally, if there is a statute on an issue, the statute is superior to case law, just as the Constitution is superior to statutory law.

However, judges interpret constitutional and statutory law, making case law a powerful source of law. A judge can interpret a constitution in a way that adds or creates exceptions to its protections.

A judge can also interpret a statute in a way that makes it unconstitutional and unenforceable. This is called the power of judicial review Marbury v. Madison, An example of judicial review is set forth in Texas v. Johnson , U. Figure 1. It would not be fair to punish someone for conduct that is not yet illegal. Thus judges adhere to a policy called stare decisis.

Stare decisis is derived from English common law and compels judges to follow rulings in previous cases. A previous case is called precedent. Once judges have issued a ruling on a particular case, the public can be assured that the resulting precedent will continue to be followed by other judges. Case precedent is generally an appeal rather than a trial. There is often more than one level of appeal, so some appeals come from higher courts than others. Many complex rules govern the use of precedent.

Lawyers primarily use precedent in their arguments, rather than statutes or the Constitution , because it is so specific. With proper research, lawyers can usually find precedent that matches or comes very close to matching the facts of any particular case.

In the most general sense, judges tend to follow precedent that is newer , from a high court , and from the same court system , either federal or state. Geoffrey is a defense attorney for Conrad, who is on trial for first-degree murder. The murder prosecution is taking place in New Mexico.

Geoffrey finds case precedent from a New York Court of Appeals, dated , indicating that Conrad should have been prosecuted for voluntary manslaughter , not first-degree murder.

Brandon, the prosecuting attorney, finds case precedent from the New Mexico Supreme Court , dated , indicating that a first-degree murder prosecution is appropriate.

The trial court will probably follow the precedent submitted by Brandon because it is newer, from a higher court, and from the same court system as the trial. Cases must be published to become case law. A published case is also called a judicial opinion. This book exposes you to many judicial opinions that you have the option of reading on the Internet. It is essential to understand the meaning of the case citation. As you can see from the diagram, the number is the volume number of the book that published the Keeler case.

The number is the page number of the Keeler case. The date is the date the California Supreme Court ruled on the case.

It is useful to condense judicial opinions into case brief format. The Keeler case brief is shown in Figure 1. Published judicial opinions are written by judges and can be lengthy. They can also contain more than one case law, depending on the number of issues addressed.

Case briefs reduce a judicial opinion to its essentials and can be instrumental in understanding the most important aspects of the case.

Standard case brief formats can differ, but one format that attorneys and paralegals commonly use is explained in the following paragraph. Review the Keeler case brief.

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Since then, U. A statute—or the statutory law—may also be referred to as legislation. This is an example of statutory law. Instead, the Constitution made provisions for law to evolve as society evolved. In , U.

Case law is the collection of past legal decisions written by courts and similar tribunals in the course of deciding cases, in which the law was analyzed using these cases to resolve ambiguities for deciding current cases. These past decisions are called "case law", or precedent. Stare decisis —a Latin phrase meaning "let the decision stand"—is the principle by which judges are bound to such past decisions. These judicial interpretations are distinguished from statutory law , which are codes enacted by legislative bodies, and regulatory law , which are established by executive agencies based on statutes. In some jurisdictions, case law can be applied to ongoing adjudication ; for example, criminal proceedings or family law. In common law countries including the United Kingdom , United States , Canada , Australia and New Zealand , the term case law is a near-exact synonym for common law. It is used for judicial decisions of selected appellate courts , courts of first instance , agency tribunals, and other bodies discharging adjudicatory functions.

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Common law

Under Sources of Law we explained that some countries will apply greater weight to certain sources of law than others, and that some will put more emphasis on judicial decisions than others. There are two main types of legal system in the world, with most countries adopting features from one or other into their own legal systems, Common Law and Civil law. Concept of "Concession" as Understood in France - summary Common Law System Countries following a common law system are typically those that were former British colonies or protectorates, including the United States.

Law comes from three places, which are referred to as the sources of law. The first source of law is constitutional law. The purpose of federal and state constitutions is to regulate government action. Private individuals are protected by the Constitution, but they do not have to follow it themselves.

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Common law

4 comments

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  • Jeanne L. 29.05.2021 at 11:58

    constitutional constraints, statute law prevails over the common law. “​Constitution, the federal, State and territorial laws, and the common law.

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  • Efraim B. 31.05.2021 at 23:04

    Common law , also called Anglo-American law , the body of customary law, based upon judicial decisions and embodied in reports of decided cases, that has been administered by the common-law courts of England since the Middle Ages.

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