Spread of Common Law
Spread of Common Law
Introduction
Two
groups of former British colonies:
•The first group: comprises
those territories where political and
legal institutions were in early stage. Eg. Australia, New
Zealand and North America.
•The
common law of new comers applied automatically. The transplantation of common
law become very easier as there was no chance of resistance from the native
population.
Spread of common law
•The second group comprises the nation,
where there was selective
transplantation of common law.
•These are the territories where the
political and legal institutions were developed and colonial power left intact
the law already in force. Eg. India and Africa.
Common law applied only if the local law had
no appropriate rules or the rules they had were undesirable in the eyes of
colonial legislators.
Spread
•The English started Settlement in North America in the first half of the 17th century
where no need of law and courts were needed.
•There were 13 independent colonies.
•In many colonies, the disputes were
settled with the help of the Bible.
•At the beginning of the 18th
century trade between the colonies and abroad increased and
theocratic rule lost its hold.
•Lawyers trained in the Inns of
Courts in London grew and law books like Blackstone’s commentaries
became widespread.
•The common law of England was applicable.
• However, state of Louisiana has
distinct legal system based on civil law traditions.
•The declaration of Independence, 1776
brought significant change in the legal system.
•The representatives of independent states
tried for closer link with each other and drafted a federal constitution, which
came into force in 1789.
•The constitution survived a civil war and
two world wars and remains virtually unchanged.
•The representatives
agreed that common law should be the law of the colonies except its
unsuitability. This principle enabled the American courts to modify English
common law in many respect.
•The rules of common law were also altered
by the legislation. ( because of hold of democrats in the house of
Representatives). In the beginning of 19th century, several
states passed the statute in land law, family law and law of succession,
abolished feudal English elements, and simplified the court procedure.
•After civil war, America made an enormous
progress, which called for legal creativity in the field of commercial and
company law.
•Governmental intervention in economic
progress in the interest of protecting the weak was seen as wrong.
•The entrepreneurs, financers and
industrialists and investors were interested in the predictability and
stability in judicial decisions.
•Judges saw their primary task as being to
put the existing stocks of rules in dogmatic order, they had tendency of drawing
legal consequences from the place in the system where the applicable legal
rules had previously been put.
•The tendency of universities changed. The
study of law was regarded as
practical preparation for the legal profession not furthering general education.
•The University of Harvard introduced a
case law method (critical discussion of rules developed in cases).
•The law in the United States is of
English origin and referred to as Anglo-American law.
•The law was judge-made, based on
precedent, and found in multiple sources.
•Common law is judge-made law developed by
judges or judicial decisions. Crimes were defined by the common law courts
•New crimes defined by the courts
•The third characteristic
of the common law is that it is found in multiple sources.
• In deciding the legal meaning of a
given crime, it is not sufficient to look only at the legislative Act.
One has to look how the courts have interpreted the statute.
To aid lawyers and others in determining
the legal meaning of crimes, a verity of explanatory works contains the law
plus commentary.
•English law received in America was the
law in force in England at a time when this country controlled over America.
•Opposed to the concept of un-written law
or case law of England, the American law has been systematically codified.
•America is a federal state where the
constitution has provided separate legislative power to United States and the
States.
Court Structure: Dual Court System
•America has dual court
system i.e. one national court system and
•Separate court system in
each of the fifty states and the District of Columbia. (51 state courts)
•There are Justice of
Peach (part time judges) in rural areas to hear small cases and Municipal
Courts in the city area.
•More serious cases go to
district court or county courts in some states.
Court Structure
•In some states there are
three levels of District Court, Court of Appeal and State Supreme Court (39
states) and other states have only District Court and Supreme Court.
•The cases related to federal
law or the case where the United State is a party and cases of the diversity of
citizenship goes to federal courts.
Court System
•There are four layers of courts:
magistrate court, district court, appellate and Supreme Court.
•Magistrate courts have
limited jurisdiction. Magistrate Judges are selected by the district court
judges. Full time magistrate judges are appointed for eight years term and part
time magistrate judges for four years. There are 422 full time magistrate judges
and 77 part time magistrate judges.
•There are ninety-four district courts at
least one district court in each state. (Some states have more than one district court:
California, New York and Texas each have four district courts.)
•There is also a district court in
District of Columbia and four territorial district located in Guam, Puerto
Rico, the Virgin Islands, and Northern Mariana Island.
•There are 649 district
court judges nominated by the president and confirmed by the Senate. (There are 326 Bankruptcy
judges to assist the district judges in Bankruptcy cases.)
Court of Appeal
•There are eleven Court of Appeals for the
Circuit. The Courts of Appeals are staffed by 179 judges nominated by the
president and confirmed by the Senate.
•The Number of judges
varies from six (the first circuit) to twenty-eight (the ninth circuit)
depending on the volume and complexity of the caseload.
Supreme Court
•The highest court of the nation
•There are nine justices, eight associate
justices, and one Chief Justice who is nominated specially for the post by the
president.
•Supreme Court justices
are nominated by the president, require conformation by the senate. They serve
for life.
Specialized Courts
•Apart from courts of
regular hierarchy, there are specialized courts created by the congress to hear
special types of cases like; Tax court, Court of Federal Claims, Court of
International Trade etc.
Legal Profession in America
•American legal profession has its
roots in English government organization.
•The practice of law in the before evolution monopolized
by the upper class of merchants and planters (founder of new colony),
•They developed English pattern of
closed legal caste.
•American lawyers played principal
role in the revolution against British imperialism. There were 25 lawyers among
the 56 signatories of the declaration of Independence of 1776.
Legal Profession
•In the beginning, neither law degree nor
college education was required for admission to the Bar.
•Teaching of law started in 1870 with the
use of case method (by Harvard Dean Christopher Columbus Langdell who
rejected the textbook and instead used casebooks as teaching materials.)
•The teachers become Socratic guide
leading the students to an understanding of concepts and principles and
concepts hidden as essence of the case.
•Today, graduation from
law schools recognized by American Bar Association and pass the Bar
Examination.
There
are four sub-groups of lawyers that is lawyers in Private practice, lawyers in
government services, lawyers in private employment and lawyers in the
judiciary.
•Legal profession has never been popular
in America.
•The legal profession adopted a code of
ethics in 1908 named Cannon of Ethics.
•In 1969,
it was revised and called the Model Code of Professional Responsibility.
•In 1983, American Bar Association adopted
the Model Rules of Professional Conduct and Code of Judicial Conduct.
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