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Need an argumentative essay on Common law. Needs to be 7 pages. Please no plagiarism.Download file to see previous pages The name "common law" is also used to refer to the conventional and long establ
Need an argumentative essay on Common law. Needs to be 7 pages. Please no plagiarism.Download file to see previous pages
The name "common law" is also used to refer to the conventional and long established, precedent-based element in the law of any common-law jurisdiction, as disparate to its statutory law or legislation. As well it the term common law is also used to signify that part of the legal system that did not develop out of equity, maritime law, or other special branches of practice. (Eldon)
In addition to England common law is practiced in all of Canada except Quebec and all of the United States except Louisiana. All of these areas follow common law and U.S. state statutes usually provide that the common law, equity, and statutes in effect in England in 1603, the first year of the reign of James I, shall be deemed part of the law of the jurisdiction. (Homes) Decisions of the English courts that were made later only have persuasive authority.
There are particular characteristics and features of common law that distinguish it from other types of law. The one feature that distinguishes common law is the fact that it represents the law of the courts as expressed in judicial decisions. "The grounds for deciding cases are found in precedents provided by past decisions, as contrasted to the civil law system, which is based on statutes and prescribed texts." (Holmes) In addition the system of judicial precedents, other characteristics of common law include trial by jury and the doctrine of the supremacy of the law. In the beginning, supremacy of the law meant that not even the king was above the law. however today it can be translated as meaning that acts of governmental agencies are subject to scrutiny in ordinary legal proceedings.
Judicial precedents gain their force from the doctrine of stare decisis [Lat., =stand by the decided matter], i.e., that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction. (Holmes) However, in the when conditions change they make most decisions inapplicable except as a basis for analogy, and a court must consequently frequently look to the judicial experience of the rest of the English-speaking world. "This gives the system flexibility, while general acceptance of certain authoritative materials provides a degree of stability." (Eldon) On the other hand in many occurrences, the courts have failed to keep speed with social developments. As a result of this it has become necessary to enact statutes to bring about needed changes. Without a doubt in recent years statutes have superseded a great deal of common law. This is especially true in the fields of commercial, administrative, and criminal law. Characteristically, however, in statutory interpretation the courts have recourse to the doctrines of common law. (Eldon) In consequence increased legislation has limited but has not ended judicial supremacy.
The development of common law has an interesting and relevant history. Early common law was somewhat uncompromising. In this respect common law would not adjudicate a case that did not fall specifically under the purview of a particular writ and had a cumbersome set of procedural rules. With the exception of a few types of lawsuits in which the object was to recover real or personal property, the only remedy provided was money damages. (Holmes) In these in instances the body of legal principles known as equity evolved partly to overcome these deficiencies.