An important source of criminal law in the United States is common law. English law has evolved over the centuries, and when we refer to American common law, we are generally referring to common law rules brought from England to the United States when we became a nation. However, this is not necessarily always clear. [1] LaFave describes the process by which the common law was derived in England. « It should also be noted that not all judges are enthusiastic about using legislative history to interpret ambiguous laws. In any event, legislative history is less likely to prevail in the interpretation of criminal statutes than in civil statutes. If one of the purposes of a criminal law is to warn the public of conduct that causes them criminal trouble, that is, when potential criminals are entitled to a fair warning, then the public should be able to determine the line between permissible and prohibited conduct from the law itself. [12] « Although the description of the Anglo-American system as the `common law legal system` notes an important difference between it and the civil law system, this description should not lead to ignoring the fact that legislation is also an important source of law in the Anglo-American system. This system is in fact a mixed system of common law rules and legal rules. The common law rules established by the American and English courts have always been superseded by statutes. In fact, the courts are empowered to develop common law standards only if Parliament has not attempted to find legislative solutions.
In our country, the common law is also subject to the legal restrictions imposed by the federal and state constitutions. The primacy of constitutions extends to all legal forms, including the common law. Just as laws cannot violate constitutional restrictions, a norm of customary law cannot be violated. [4] Of course, the courts have sometimes refused to characterize certain forms of antisocial behaviour as criminal. Sometimes their refusal seemed irrational and prompted the legislature to intervene and pass legislation: thus, false pretenses, embezzlement, incest and other matters became legal crimes in England. Certain immoral behaviours, mainly of a sexual nature (such as private acts of adultery or fornication and seduction without conspiracy), were punished by ecclesiastical courts in England. The common law courts have never punished these activities as criminal, and therefore they have never become English common law crimes. In the old England, before the colonization of the United States, jurisdiction was the most widespread source of law.
This contrasted with countries that followed the Roman legal system, which was based mainly on written codes of conduct promulgated by the legislator. Case law in England was entangled in local tradition and customs. The social principles of law and justice were the guiding principles when the courts announced their judgments. In an effort to ensure consistency, it is the policy of English judges to follow previous judicial decisions, creating for the first time a unified legal system across the country. Case law was called common law because it was common to the entire nation (Duhaime, L., 2010). Common LawJudicial decisions that do not involve an interpretation of laws, regulations, treaties or the Constitution. consists of court decisions (judicial decisions) that do not involve an interpretation of laws, regulations, treaties or the Constitution. The courts make such interpretations, but many cases are decided when there are no legislative or codified statutes or regulations that must be interpreted.
For example, a state court that decides what types of witnesses are required for a valid will in the absence of a rule (law) is customary law. The doctrine of stare decisis comes from a Latin expression that says « to stick to decisions and not to disturb fixed points ». Where decisions have established in the past that a particular provision governs a particular factual situation, that rule should apply to all subsequent cases constituting the same factual situation. According to the doctrine of stare decisis, previous decisions of the Court of Appeal have set precedents for the judge to follow in similar subsequent cases. Stare decisis allows society to assume that basic principles are based on law rather than the inclinations of the individual, thereby contributing to the integrity of our constitutional system of government, both in appearance and in fact. [5] Courts of first instance and courts of appeal must follow the relevant case law already announced in the decisions of the courts of appeal of their own jurisdiction. Trial courts must draw on case law when deciding on legal issues. [Legal issues include what a law means, what the law says, how the constitution is to be interpreted, whether a particular law is applicable to the facts of this case. On the other hand, questions of fact are decided by jurors (or judges in court cases) and include, for example, the speed at which the accused drove, the color of the hat, or whether the weapon exploded accidentally.] One way in which courts circumvent case law is to distinguish the facts of the case before them as being very different from the facts of the previous case.
For example, if the court can decide that the fact that the defendant fled the crime scene is so different in this case from the previous case where the defendant simply walked away from the crime scene that there is no precedent, it must follow. « Stare decisis reduces the possibility for each judge to settle controversies according to his personal wishes. Indeed, the doctrine of stare decisis serves indirectly to limit the legislative role of the judge, even in cases that raise « open questions » that have not been resolved by previous precedents. A sudden change in the composition of the judiciary, even at the highest level, should not lead to an equally sudden change in the content of the law. [10] The English legal system found its way to the United States with the first settlers. Initially, the thirteen colonies unanimously adopted the common law as the law of the land. All crimes were common law crimes, and cases determined criminal elements, defences and regimes of punishment. Gradually, after the Revolutionary War, hostility to England and modern reforms led to the erosion of common law crimes and a codification movement. States have begun to replace common law crimes with laws enacted by state legislators. Oxford professor Sir William Blackstone`s Commentaries on the Law of England, which interpreted and summarized English common law, became an essential reference when the nation began to transform common law principles into written laws, regulations and penal codes (Duhaime, L., 2010).
The determination of the common law for a particular case is a process that begins with the analysis of the search, the location of previous relevant cases, the extraction of statements and judgments, and finally determines the applicable common law. Decisions of higher courts adjudicate lower courts and previous cases. Legal laws are already written and should only be applied to a specific case. Read the description of the Keeler case. The description of the case should begin with the title of the case, including the citation. The next element of pleadings should be the procedural facts. The facts of the case must contain two pieces of information: who is appealing and before which court the case is pending. As you can see in the Keeler case letter, Keeler has filed a motion for a restraining order, and the court is the California Supreme Court. The procedural facts are followed by the substantive facts, which should be a brief description of the facts that triggered the trial and appeal. The procedural and substantive facts are followed by the question. This is the issue that the court is considering, which are usually the grounds for appeal.
The case letter should frame the problem in the form of a question. Cases usually have more than one problem. In the case description, all problems or only the most important problem can be indicated. The basic attitude comes after the question, is in fact the case law and answers the question. If more than one topic is presented in the case description, substantive participation should address each item. It was not the practice of the English legislature (Parliament) to enact detailed laws on felonies, misdemeanors, contracts or property.