Common Law essay
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Common law is a form of judge-made law found in courts when making decision or during the precision of cases. Traditionally, common law is not bound to the constitution or any form of stature. In this case, common law gets its definition from courts for it is used by judges through sense and logic rather than policies and by laws. Logic and sense are used in the making of the common law for it is through these some nature of cases can be solved. Legally, businesses and employments are work through contracts and deals between two or more people or groups of people. To enter in to the contracts, some terms and conditions have to play a role to ensure that contracts are not infringed. Personal or organizational contracts do not follow and documented form of law to ensure ethics or fairness. However, given that people are not forced into taking the contracts, customized contracts are made to create a middle ground for the partners or participants. Entering into these contracts with clear knowledge of the pros and cons, one does not have any law covering this type of contracts. For a judge to preside over a case of this contract infringement, no statutory or constitutional law would be used to solve it. In this case, common law would be used in that a judge would review the terms and conditions of the contract in dispute and preside and find an argument that meets each party’s needs (Sheppard, and Fletcher, 2005).
The above example is one among many cases where common law can and would be usedobviously. The arguments developed by a judge do not reflect any form of written policy or other documented law. For this case, common law matures through a judge’s experience and affects the parties in dispute as the court sees fit. Any judge would be well informed about the type and nature of a case, therefore ruling would touch on both logic and sense keeping in mind that the ruling cannot be disputed by another court (Greve, 1996). In cases of appeal, precedent is applied in that law made by a previous judge would be used to argue out the need for appeal and rehearing of cases.
American law has a number of sources that range from case law, statutory law, administrative law, court rules, and constitutional law. These sources are different and their way and manner of handling cases and making decisions differs from each other.
Why is this the reason? Case law or commonly known as the common law does not depend on arguments of a documented doctrine but rather the logic of a court or a judge. For example, a farmer accused of firearm possession can bail himself by producing a certificate of ownership. However, this is not the case if the firearm in question is a military riffle. A judge would like to know why a farmer would possess a military riffle. Many arguments may be developed from this type of case but the judge or the court would make the final decision-making over this particular case.
Statutory law is law that is documented as a doctrine to be followed in states and it presides over municipality laws or ordinances. Statutory law is not all round binding for it can be nullifies of invalidated if it conflicts with federal law. In the USA, many states have different kinds of laws prohibiting and allowing certain behaviors and activities. However, as the federal laws assess these statues, some activities are allowed as legal under all ordinaries like the freedom of choosing religion. The legislative branch has the authority to punish criminal activities but it is limited to a certain code. According to the first amendment to the federal constitution prohibits the punishment of individuals following their choice of religion.
Administrative law as another source of American law administers and regulates the activities of the government. Under the legislative branch, administrative law is active at the state level within which government procedures are administered and regulated accordingly. Administrative law is divided into two but it is usually treated as one, however, the activities of each branch differentiate one from the other; these branches as discussed above are administrative and regulation. In the state of Indiana, the administrative branch is responsible for administering aid distribution to those considered needy. On other hand, the regulatory board is responsible and in charge for regulating distribution of medical supply to health center. The two branches make up the administrative law and contribute to the American Law.
Court rules are legislative calls that have to be adapted by courts to cover the gaps left by legislatures. Court rules are made by courts but to be applied they have to be voted or enacted by the highest courts in those particular states. In cases where the court rules are made by the Supreme Court, a mandate to pass them is called for in that congress has to pass of nullify them. If Congress fails to nullify these court rules, they are regarded as law and can be used in any court throughout the USA (Greve, 1996). The importance of court rules ifs the fact that they play a role of organizing the court in terms of timing of filing, limits on length of memoranda and briefs, and service of process. Although they are not used as laws, these rules can nullify or approve the basis of a case therefore providing a source for American Law.
The American Constitution and the Bill of Rights is the biggest and the most honored doctrine of law in the Unites States of America. Rules, Laws, and any form of authority cannot be made, adopted or passed if they are in conflict with the constitution. As a source of American law, the constitution is regarded as the basic doctrine of law within which state laws and constitutions should not conflict with (Earl Warren legal Institute and Frank, 1969).
The importance of the precedent to the judicial decision-making is the application of common law and maintenance of court decisions. Judge-made lawis considered valid and useful in any case that has similar arguments or needs the same intervention. Inspite of how many years ago it was used, common law or judge-made law applies in that court or any other court of a lower level. The importance precedent is that is applies the same measures for all similar cases and decisions made are propagated to show consistency and firmness of the court. To the parties affected by the decision making process, precedent ensures a level of equity and justice without favoring any set of parties (Greve, 1996).
Courts of equity develop and grant equity remedies under the settings of common law courts. Legal remedies and equity remedies have been merged together in today’s laws and can be issues by the same court. Legal remedies are decisions or rulings made in favor of successful claimant or in consideration to specific rights (Earl Warren legal Institute and Frank, 1969). Equity remedies on the other hand are legal provisions issued to defendants in forms of injunctions and specific performances. Injunctions demand for one to do something or stop them from doing it while specific performance require one to do something like transferring part of merchandise or land to the claimant.