Common Law thread. If it weren't for Napoleon would more of Europe have adopted Anglo style common law? What legal systems were on the continent before Napoleon took over?
Why is Anglo law the finest form of law?
Also post your favourite precedent setting cases
>Also post your favourite precedent setting cases
Canada here, I'll start:
This was a Supreme Court ruling, so it's not civil law, but basically R v Feeney determined that police cannot enter a home without a search warrant, or without "hot pursuit". It's a pretty dumb case but basically a guy beat an elderly man to death with a crowbar, then robbed him.
An anonymous tip led the cops to this guys trailer. They kicked in his door, saw he was covered in blood, and arrested him. His lawyer then argued it was unreasonable search and seizure and the case went all the way up to the Supreme Court. The Court ruled that the cops were not in hot pursuit when they entered his trailer, so that evidence collected i.e. him being covered in blood in his trailer, was inadmisable because police didn't have a warrant and had no reasonable reason to believe he would have fled before they could have obtained a warrant.
The guy was found guilty anyway based on other circumstantial evidence
Even absent Napoleon's institution of the Civil Code, I don't think Anglo style common law systems would have caught on elsewhere. The common law is, in the Burkean sense, a very conservative system, in the sense that it reflects the decisions of many centuries' worth of judges and cases, and for most of that history (practically all of it at the time of Napoleon) it reflected the customs and traditions which were specific to England. Even Scots law has some notable differences from the common law.
Common law conceptions of inheritance, contract law, and property rights would only seem appropriate to someone of English heritage, so exporting them to a place with a radically different set of traditions, customs and even geography would not have worked. Even in the US, some adjustments had to be made to the traditional common law to account for some doctrines that did not seem to work as well there as in England.
From a certain point of view, you could say that Islamic jurisprudence is similar to the common law: jurists decide questions of law under Sharia, and those decisions bind the faithful. Obviously this is a superficial comparison, and not being an expert in Islamic law, I can't comment further.
As for cases, McCulloch v. Maryland is a very significant US case. In English law, I always liked R v Dudley and Stephens for the proposition that just because you are shipwrecked and fearing death doesn't mean you can kill and cannibalize your shipmate.
>doesn't mean you can kill and cannibalize your shipmate.
Cannibalizing shipmates who were already dead was common practice desu. But yeah, the murder was pretty brutal.
In Canada we have common law, except Quebec has the Quebec Civil Code, because when Britain won the 7 year war and France ceded New France to Britain, the British let the French settlers there keep their language (French), their religion (Catholicism) and their law (Napoleonic Code)
So that's why we're stuck with Quebec.
One big difference between Quebec and other provinces, is that Quebec has a lot of consumer protection statutes, whereas in the rest of Canada consumer protection is based on shady precedents and is often a grey area. Quebec has strict laws about advertising to Children, First Nations and the Elderly, basically vulnerable groups. A lot more trades are regulated as well, such as travel agents and real estate agents.
In Ontario, where I'm from, most codified civil law is about real estate ownership, such as the Land Titles act and Condominium act. There's also the automobile insurance act, but that's based on a precedent. The court made a ruling based on "no fault insurance" and gave the Provincial government 6 months to come up with legislation to solve it.
sorry if I rambled.
I just read through precedent setting cases in Canada and it seems most of them affect the Indian Act and first nations shit
Common law has its shortcomings due to lack of formal codification, hell the E&W law covering mixed bank account trusts is a fucking nightmare where every other generation a more judge comes along and virtually ignores everything the previous gen said to apply their own interpretation. They don't even straight-up deny, they literally say "well there's no evidence pointing to the contrary" EVEN THOUGH THE PREVIOUS JUDGES STRAIGHT UP GAVE THE SAME REASONING FOR THE OPPOSITE ARGUMENT.
However it's the to-go law for International Commercial Law because of freedom to contract/not to contract, and I'm especially talking about E&W common law here. There's a reason why all them arbitration tribunals are in London
*a more serious
*a more senior judge, wtf is wrong with me
Why the fuck do you people like Common Law ? Do you appreciate the fact that judges have the right to interpret laws as they wish, without any restraint, even if they do not represent the will of the people ? Do you enjoy the government of judges ?
t. French law student
I think it has to do with the law being more flexible to change
Scots Law best Law
>Do you appreciate the fact that judges have the right to interpret laws as they wish, without any restraint, even if they do not represent the will of the people ? Do you enjoy the government of judges ?
The judiciary is independent from government. The will of the people is irrelevant to cases that have never happened before
Example here in Canada the case "Rossy v City of Westmount"
Gabriel Rossy was sitting in his car in a parking lot on city property. A tree randomly fell onto his car and killed him
The family sued the city claiming the city should have removed the diseased tree before
The court ruled in favour if the family and the city was liable
Now this precedent is law; cities are liable if trees on city property fall and cause person injury
Now what this has done is forced municipalities to employ arborists to check trees, as well as forced cities to remove diseased trees.
in civil code system how is this issue resolved? The tree damage liability act?
Scots law is similar to how Quebec civil law works it seems
We have both common law and civil code
>that judges have the right to interpret laws as they wish
They can't interpret laws which aren't there. Usually the court just fills in the blanks and does their best to follow legislation in the sense that the people who wrote it intended
Especially for criminal matters the supreme court will often make a judgement on something such as euthanasia for the terminally ill, and then instruct parliament to pass legislation which fits the guidelines in their ruling, and until that legislation is passed the court ruling is law
Most civil matters don't go to parliament though, it's all interpreted through precedents and existing statutes
This
Best of both worlds
Reminder that Common Law was also created by French people.
You can't escape the Frenchness.
>Common Law was also created by French people.
Wasn't it Roman?
It's English, so no and no.
Precedent. Common Law effectively outlines why a given act was criminal, and clearly states what the penalty for doing something will be. The Code Civil tries to cover all possibilities, meaning that novel crimes often go unpunished, and it's reliance on judge's interpretations means two people can commit the same crime and get a different penalty, making it much less suitable for entrepreneurship.
Nah, it developed in the 12th and 13th centuries in England, mostly growing from the assizes of Henry II and the Magna Carta.
Roman law is usually associated with civil law, though that's not entirely true either.
It's medieval "English", remember who was in charge of England at the time?
It was developed in England by French people.
I have to do a couple commercial law papers as part of an accounting degree, I quite like how you can trace the development of law through the various cases like with negligence, also as a NZer it feels comfy we can trace our laws back through to England, lends a sense of weight to it.
>Normans were French
that's civil law, and to a smaller extent
>judges are literally legislating
>anglos think this is acceptable
It derived from Anglo-Saxon roots, not continental ones.
lmao, sure is pure Anglo-Saxon Germanic Viking names all over the Magna Carta.
Magna Carta isn't the basis of common law, although it is the basis of the jury by peers system
It's one of the pillars of common law. The other being the assizes of Henry II (aka Henri d'Anjou), starting with the Assize of Clarendon.
>judges are literally legislating
Juries can too as in Hunt v Sutton (Canada) which held Hunt's employer accountable for providing alcohol at a work party but not providing safe transportation home.
A jury ruled the employer was 25% liable and that is now law.
We afford the courts that power
no wonder in America judges have to be elected
Here in Brazil judges reach their station by winning public contests. You just have to flawlessly know your shit about law.
So it's good because you need a person to die to make a law that is common sense and should already exist? That's your defense?
So, just out of curiosity, does anyone know of any caselaw about people challenging their own accomodations they got under the ADA? Mildly interested, since I have some ADA provisions of my own that I dont' think are strictly necessary, and while I'm not really interested in suing my boss over it, I'm a bit curious as to whether or not I'd have a chance if I did so.
In America, only some (and only state) judges are elected. Most are appointed.
We like little things such as uniformity and predictability. Common law ensures that two people in similar circumstances get similar treatment under the law at trial, because judges are bound by precedent. You don't have that in civil law.
Plus, it provides a check on the legislature, and given how dumb most of them are, that's probably necessary.
one of the few things that are actually good about this country desu famnhor
Choosing your state's attorney via elections, what the actual fuck
What do you think this proves? Show me a non-English basis for any of the precepts of Common Law. Trial by jury? Adversarial prosecutor / defendant arrangement? Circuit judges? Precedent being set by any judge but applied to all of them?
It all goes back to the assizes and the Magna Carta.
Judges in Canada are appointed
>need a person to die to make a law that is common sense and should already exist?
How would one legislate that before it happens? The law doesn't prevent trees from falling it just assigns liability
I think Anglo countries are a lot more litigious than civil law countries
>Plus, it provides a check on the legislature
This
That's why supreme court rulings are so important
I remember reading a couple years ago the supreme court of Mexico ruled that possession of marijuana for personal use should be a right
But that didn't legalise it. In common law countries that court ruling would be law, and marijuana would become legal
That's an example of the type of judicial overreach that is a danger in a common law system.
It's amazing how willing legislatures are to just ignore constitutions to deal with whatever flavor-of-the-month issue pops up, because their interests are solely to respond to voters (and the media) to get reelected. This is why judicial review for constitutionality is so important, otherwise it's just an aspirational document.
>That's an example of the type of judicial overreach
It's the same way black people and women became eligible to vote
Is that judicial overreach?
Bump
This
Post rare law systems
>Common Law
I DO NOT ENTER JOINDER WITH YOU!
THIS IS THUGGERY!
*sound of taser firing*
URWAAAAAAGGH!
>Common Sense
No legislature can conceive of every scenario and possibility, nor, quite frankly, are legislatures mentally or morally equipped to handle every situation.
>Is that judicial overreach?
Everything is judicial overreach when it affects something, someway that you care about, and you don't like the outcome.
It's only judicial over reach when parliament doesn't like it
Normans were French.
They were Norman, not French
No they were Norman
>speak French
>live in France
>have French names
>be Catholic
>intermarry with French for more than 150 years before 1066
>not French
A rose by any other name my dude.
>>have French names
>william
>french
sure as hell isn't Wilhelm
Where do I read more about the law?
Like roman law, common law, specific legislation and theory and shit.
I think it'd be nice to understand more (in general) about such a relevant topic.
It sure as hell isn't Guillmaaaiirree or whatever retarded name the French gave him
Normans were Nordic
Guillaume i think
I can assure you that William never refered to himself as that
>we wuz nords and shit hail black thor
False
He called himself Guillaume le Conquistador
Yeah about that.
>equity
en.wikipedia.org
>So I heard you like special snowflake judicial systems, here have another!
It's a historical artifact dating from the time that the "Court system" and appealing before the king were two completely separate things, with column A having one set of powers and column B having a totally different one.
In America there were constitutional amendments which guaranteed voting rights to those classes. The individual right to vote did not exist in common law at least until the 19th century. Im not sure of its status in England but in America voting rights are in the domain of constitutional law.
Not him, but you do realize there's no hard divide between "constitutional law" and "common law", right? Take Griswald, you've got constitutional common law right there.
Constitutional law has tons of clauses read into it by supreme court rulings such as gay marriage
That wasn't an amendment or legislation, the court read into the constitution a right that wasn't explicitly stated; gay marriage
The Bayeux tapestry also refers to the Normans as "Franci".
Everyone referred to the Normans simply as "the French" until the English started being butthurt at that in the 20th century and rewriting history.
See for some Norman names.
No that's fine, I agree they were essentially French, but that guy didn't call himself Guillawhatever.
>the court read into the constitution a right that wasn't explicitly stated; gay marriage
Incorrect. The argument went, that the ability to marry was a right inherent among all people, and if marriage was a right, by the due process clause, no state or federal government held the power to make regulations which restricted the people's ability to marry. Which incidentally included marrying someone of the same sex.
When the judicial power is correctly understood, it is contrained by precedent or the text of laws, such as the Constitution. The rule of law depends on the judges restraining their authority to matters addressed by current law. The common law is not correctly understood as a instrument for flexibility, but as a stabilizing force. The common law begins with the principle of stare decisis, not with magna carta or the assizes of Henry ii. It is in essence the idea that a single ruling applies generally to all similar cases. New law is created only to deal with new cases and only through application of old common law principles. It is the exact opposite of the modern idea of law developing as a matter of convention. Blackstone when he defines the common law in contrast to statute law says only those laws which are so ancient that no one can find their origin belong to the common law.
It wasn't just due process, it was also equal protection analysis under the 14th amendment. Also, implying a right that isn't explicitly mentioned in the Constitution is very much judge-made law; otherwise, we couldn't overturn prior rulings, because that would be the definitive version of the Constitution. Judges reinterpret it to try and suit different times, same way the common law developed over centuries.
Kennedy was playing extremely loosely with the law. He failed apply doctrines in a way thats rooted in the cases. Nobody knows how the legal mechanisms provided for a right of gay marriage because the opinion is legal nonsense.
>Incorrect.
No that's literally how court rulings "read in" legislation
These cases fall under general civil responsability, as municipalities are moral persons. They have general (jurisprudential) and statuticial sources for their different obligations. Municipal right is a bit of a mess, because Quebec has federal law applied to governing bodies. To add a precision to what user said higher, there is civil law only in the province jusdiriction, or if you prefer, constitutional competence. So because municipalities are the province's creature, they ar under both Common law and procincial civil law.
Well yeah criminal law is federal so any common law there would apply to Quebec
>So because municipalities are the province's creature [creation]
Ohhh this is a good point
Of course, you are absolutely right. But pertaining to the municipalities, I was talking about the whole of administrative law. I should have been more precise.
If I may add something else, this has effects on prescription cases and othe procedural issues like The audite alteram partem set of rules rules in municipal ho are not civil tribunals but administrative ones.
Oh I see what you mean now. Municipalities are treated like an individual entity in the civil code
In common law it's the same I believe. Isn't it true Quebec has a lot of consumer protection laws?
I hate my phone, it is very aggravating trying to type in english and being autocorrected to a fuck up.
Oh yes, the Quebec goverment is much prone to trying to legislate in every commercial realities where there is or may be a situational inequality, from information disclosure to one-sided contractual negotiation such as adhesion contracts (think telecoms and bank). Which is funny because both telecoms and banks are under federal law. Otherwise, the government is prone to activism and general infantilisation of the consumers, which is a often a burden disguised as a blessing. Quebcers in general are very pro-state's regulations and there is more bureaucrats than entrepreneurs. We have a feench expression for nanny state, its gouvernemaman.
You can change the language
>gouvernemaman
Hahaha this is great
Nice, thx user.
Normans were Francophone Norsemen
That isn't quite how it works. It works alongside the common law system. Traditionally..
>court would make a harsh judgement using previously established case law that would end up in an unfair result
>claimant appeals to the king or his representative the chancellor
>court uses system of equity to vary the result and make it more fair
The purpose of common law is to keep civil matters out of the kings hands
Interested in this user's question, even if completely ignorant about particulars.
>ADA
American disability act? In Canada I'm not sure if there is law about that but coincidentally I'm trying to get accommodations to write the LSAT because I have a visual memory deficit
>Quebec has a lot of consumer protection
In civil code yes
How does the common law protect consumers? Consumers need to get fucked over first before law is made?
You do realize that common law countries have civil statutes too, right?
One I can think of in Ontario is a ban on cigarette advertisements and the requirement of cigarette packs to have warning labels
This actually went to the supreme court over freedom of expression and the tobacco companies lost
Recently in Quebec however the tobacco companies were sued for knowingly selling an addictive product which causes harm, under some consumer protection clause in the civil code, and the tobacco companies lost
In Ontario (common law district) a civil claim like that would be totally unprecedented and would set a huge precedent if tobacco companies lost
So, because one particular district doesn't have a particular statute on the books, it means that no common law countries anywhere have statutes?
I've been doing at least a little looking into that user's question about the ADA, and just look at the life cycle of it.
>Congress makes statute
>Cases are litigated on the basis of it.
>Some of them go up to SCOTUS
>SCOTUS makes a number of rulings, either to clarify some terms or to make it in line with other caselaw.
>Congress doesn't like what SCOTUS has done with the act and re-drafts it to be more precise with what they had intended (and more protective of disabled people vis a vis businesses)
I really enjoyed this thread
>So, because one particular district doesn't have a particular statute on the books, it means that no common law countries anywhere have statutes?
I never implied that
I was pointing out that without a statute many civil claims particularly the example I gave, would be difficult or impossible to pursue
When this board first came out I looked forward to law threads