Saturday, October 2, 2010

English Common Law (ECL) 30

The atrophication of melody by music professionals and the financial mess we are in have common methodological elements that we will discuss later in this blog.  Both exhibit "negative quiddity."  To better explain this, further examples are going to be shown.  The next such example deals with English Common Law.

I am a lifelong admirer of English Common Law (ECL). There is something about it that rings with an amazing wisdom. ECL is something unique and profound, a system it can be imagined that Solomon may have devised.  It is so shrewd and deft regarding human nature that my conjecture is that it represents the living continuation of Druidic ethics, which were ironclad for ages but never written down.

For thousands of years around the world, the tribal elders have sat around the fire and arbitrated disputes by gathering evidence and making decisions. English Common Law is a clever system of gathering and organizing these decisions for use in future cases through precedent. Under ECL, a legislature exists to correct mistakes and address issues that have been overlooked or have not been adjudicated under ECL.  Under normal circumstances, the law makes itself through the common sense of judges and the ability to apply precedent.

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                                                Royal Courts of Justice, The Strand, London
The essence of English common law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent (stare decisis) to the facts before them. A decision of the highest appeal court in England and Wales, the Supreme Court of the United Kingdom, is binding on every other court in the hierarchy, and they will follow its directions. For example, there is no statute making murder illegal. It is a common law crime - so although there is no written Act of Parliament making murder illegal, it is illegal by virtue of the constitutional authority of the courts and their previous decisions. Common law can be amended or repealed by Parliament; murder, by way of example, carries a mandatory life sentence today, but had previously allowed the death penalty.

England and Wales are constituent countries of the United Kingdom, which is a member of the European Union. Hence, EU law is a part of English law. The European Union consists mainly of countries which use civil law and so the civil law system is also in England in this form. The European Court of Justice can direct English and Welsh courts on the meaning of areas of law in which the EU has passed legislation.
The oldest law currently in force is the Distress Act 1267, part of the Statute of Marlborough, (52 Hen. 3).[5] Three sections of Magna Carta, originally signed in 1215 and a landmark in the development of English law, are extant, but they date to the reissuing of the law in 1297.

Common law


Since 1189, English law has been described as a common law rather than a civil law system (i.e. there has been no major codification of the law, and judicial precedents are binding as opposed to persuasive). This may have been due to the Norman conquest of England, which introduced a number of legal concepts and institutions from Norman law into the English system. In the early centuries of English common law, the justices and judges were responsible for adapting the Writ system to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law, e.g. the Law Merchant began in the Pie-Powder Courts (a corruption of the French "pieds-poudr├ęs" or "dusty feet", meaning ad hoc marketplace courts). As Parliament developed in strength legislation gradually overtook judicial law making so that, today, judges are only able to innovate in certain very narrowly defined areas. Time before 1189 was defined in 1276 as being time immemorial.

Precedent


One of the major problems in the early centuries was to produce a system that was certain in its operation and predictable in its outcomes. Too many judges were either partial or incompetent, acquiring their positions only by virtue of their rank in society. Thus, a standardised procedure slowly emerged, based on a system termed stare decisis. Thus, the ratio decidendi of each case will bind future cases on the same generic set of facts both horizontally and vertically. The highest appellate court in the UK is the Supreme Court of the United Kingdom and its decisions are binding on every other court in the hierarchy which are obliged to apply its rulings as the law of the land. The Court of Appeal binds the lower courts, and so on.

Criminal law


English criminal law derives its main principles from the common law. The main elements of a crime are the actus reus (doing something which is criminally prohibited) and a mens rea (having the requisite criminal state of mind, usually intention). A prosecutor must show that a person has caused the offensive conduct, or that the culprit had some pre-existing duty to take steps to avoid a criminal consequence. The types of different crimes range from those well known ones like manslaughter, murder, theft and robbery to a plethora of regulatory and statutory offences. It is estimated that in the UK, there are 3,500 classes of criminal offence. Certain defences may exist to crimes, which include self defence, necessity, duress, and in the case of a murder charge, under the Homicide Act 1957, diminished responsibility, provocation and in very rare cases, the survivor of a suicide pact. It has often been suggested that England should codify its criminal law, in an English Criminal Code, however there has been no overwhelming support for this in the past.

http://en.wikipedia.org/wiki/English_Common_Law


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[English Common Law precedents developed a profound influence on constitutional law, administrative law, family law, torts, contracts, property, trusts, labor law, rules of evidence, and other areas such as licensing law and residency. As a poignant example, the development of the rules for hearsay evidence under English Common Law are ingenious (see http://en.wikipedia.org/wiki/Hearsay_in_English_Law ). Hearsay evidence is, wisely, further restricted in its use in the USA.]

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