Allgemein

What Is Common Law Meaning

In almost all areas of law (even where there is a legal framework, such as. B contracts for the purchase of goods[66] or criminal law)[67], legislative laws generally provide only brief general statements of principle, and fine limits and definitions exist only in interstitial common law. In order to know what is the exact law that applies to a certain set of facts, it is necessary to locate the precedents on this subject and justify them in a similar way on the basis of these decisions. As early as the 15th century, it became convenient for litigants who felt betrayed by the common law system to call the king personally. For example, they could argue that damages (under the common law (as opposed to equity law)) were not a sufficient remedy for an intruder occupying their lands and instead required that the intruder be evicted. From there developed the justice system, which was administered by the Lord Chancellor in the courts of the Chancellery. It is in the nature of things that equality and justice were often in conflict with each other, and disputes often lasted for years as one court opposed the other,[107] although it was established in the 17th century that justice should prevail. The reality of the modern view can be seen in practical practice: under the old „old unwritten universal custom“, (a) the courts could not logically diverge from each other (but did anyway), (b) a new decision that logically had to be made retroactively (but did not), and (c) there was no norm for deciding which English medieval customs should be „law“ and which should not. The three tensions dissolve from a modern perspective: (a) common law in different jurisdictions may differ, (b) new decisions may (but should not) have retroactive effect,[48] and (c) court decisions come into effect immediately when they are rendered, not years later or after they have become „habitual,“ and questions about what „custom“ might have been at an „old“ time, are simply irrelevant. [8] The role of the Academy of Law shows an important „cultural“ difference between the common law (connotation 2) and civil law jurisdictions. In both systems, treaties compile decisions and establish general principles that (in the author`s view) explain the outcome of cases. In neither system are treaties considered a „law“, but the weight attached to them is still very different. When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law was replaced by common law.

[137] After the failure of the rebellion against the British in 1857, the British Parliament took control of India from the British East India Company, and British India came under the direct rule of the Crown. To this end, the British Parliament passed the Government of India Act 1858, which established the structure of British government in India. [138] He established in Britain the office of the Secretary of State for India, through which Parliament was to exercise its power, as well as a Council of India to assist him. He also established the Office of the Governor-General of India and an Executive Council in India composed of senior officials of the British government. As a result, the country`s current judicial system derives largely from the British system and has little correlation with pre-British era institutions. [139] [Revision required] Cardozo`s new „rule“ does not exist in any earlier case, but must be described as a synthesis of the principle of the „thing of danger“ it contains, extending it simply to „foreseeable danger,“ even if „the purposes for which it was designed“ were not themselves „a source of great danger.“ MacPherson is careful to present himself as predictable progress, not a wild start. Cardozo continues to adhere to Winterbottom`s original principle that „absurd and scandalous consequences“ must be avoided, and he does so by drawing a new line in the last sentence quoted above: „There must be knowledge of a danger that is not only possible, but probable. But while sticking to the underlying principle that a boundary is necessary, MacPherson overturned the previous common law by rendering the once dominant factor in the boundary, that is, the formality of deprivation that results from a contractual relationship between people, completely irrelevant. On the contrary, the most important factor at the border would be the nature of the item sold and the foreseeable uses that downstream buyers would make of the item. Anglo-American common law dates back to the medieval idea that the law, as transmitted by the king`s courts, represented the general custom of the people. It developed mainly from three courts of the English crown of the twelfth and thirteenth centuries: the Exchequer, the King`s Bench and the common plaids.

These courts eventually took jurisdiction over disputes previously decided by local or seigneurial courts such as baronial, admiral (sea), guild and forestry courts, whose jurisdiction was limited to specific geographical or material areas. The Courts of Equity, which were created to exempt litigants in cases where common law legal protection was not available, also merged with the common law courts. This consolidation of jurisdiction over most disputes before several courts has provided the framework for the modern Anglo-American judicial system. The initial common law process was governed by a complex pleading system, whereby only the crimes specified in the authorized writings could be tried. Plaintiffs had to comply with all the specifications of a statement of claim before having access to a court under customary law. This system was replaced in England and the United States in the mid-1800s. A simplified form of pleading, known as coded plea or opinion advocacy, has been introduced. The written procedure requires only a clear and factual presentation of the dispute by the parties and leaves the decision on the issues to the court. In common law systems, the common law is crucial to understanding almost all major areas of law.

For example, in England and Wales, English Canada, and most states of the United States, the Basic Law of Treaties, Tort and Property does not exist in law, but only in common law (although there may be isolated changes enacted by law). Another example is that in 1877,[65] the U.S. Supreme Court found that a Michigan law that established rules for the solemnization of marriages did not abolish the already existing common law marriage because the law did not require legal solemnity and remained silent on the already existing common law. In 1154, Henry II became the first Plantagenet king. In addition to many achievements, Henry institutionalized customary law by creating a unified legal system that was „common“ to the country, introducing and increasing local customs at the national level, ending local control and peculiarities, eliminating arbitrary remedies, and reintroducing a jury system – citizens who had sworn under oath to investigate criminal charges and reliable civil lawsuits. The jury arrived at its verdict by assessing general local knowledge, not necessarily by presenting evidence, a distinguishing feature of today`s civil and criminal justice systems. .