The Mudcat Café TM
Thread #96211   Message #1878802
Posted By: JohnInKansas
08-Nov-06 - 01:23 AM
Thread Name: BS: US Democracy 33% cannot vote !
Subject: RE: BS: US Democracy 33% cannot vote !
I'm afraid I'm also seeing much smoke and fumes in the debates about "the Common Law" here, with little flame or substance.

Each country, quite generally has its own body of Common Law, and as new judicial decisions enter into it, each body of Common Law continues to evolve.

The title of "The Classic Exposition of Common Law" in US jurisprudence might justifiably be applied to the book, The Common Law by Oliver Wendell Holmes, Jr. This book was published in 1881, quite a while before Holmes became Chief Justice in Massachusetts and subsequently a Justice of the US Supreme Court. It is somewhat "dated" but remains a respected classic, and offers a reasonable notion of how Common Law has been incorporated into US Law.

A Dover Publications reprint was issued in 1991, with extensive (and helpful) notes and commentary. (ISBN 0-486-26746-6 for the US paperback) It's long, mostly boring, but necessary reading (perhaps) for anyone wanting to understand this aspect of the history and evolution of US law. Some supplemental sources may be needed to clearly discern a few "deviant" notions, or concepts that have evolved since publication.

It is quite clear that the body of Common Law most strongly incorporated into US practice comes directly and almost exclusively from British legal tradition. An attorney can present anything in argument, and anything accepted as "precedent" becomes part of the Common Law for that court that subsequent arguments may cite, but US courts traditionally have been most receptive to arguments based on British Common Law prior to the establishment of the US. There is thus, like the "UK Constitution" cited previously, no "fixed set of laws" that constitute the Common Law.

A possible exeption to the use of British Common Law, and a notable one if it's as it appears, occurs in Louisianna, where the state legal tradition is largely based on the Napoleanic Code.

There are few recent citations in court arguments going back to this older tradition, since a citation of the old law that has been accepted as precedent can itself be cited with better effect in the court where such precedent has been previously accepted.

There is no "law" that says that "the Common Law" is "the law" in any part of the US. Many local/state laws are "patterned after" precedents that derive from earlier (esp) British Common law, and earlier Common Law has had a strong influence on US legal precedent. That's about as far as it can be stretched.

John