Talk:Common law

Untitled Archives

1 2 3 4

Canadian criminal law

The Canada section of the article has this sentence: "Criminal law, which is uniform throughout Canada, is based on the common law in all provinces." This is internally-contradictory. Almost by definition, you can't have both "uniform throughout Canada" and "based on common law in all provinces." Does this mean that there is a Canada-wide statute, and the federal and provincial courts have interpretive authority? (Analogous to federal criminal statutes in the U.S.) Or something else? Boundlessly (talk) 18:48, 28 August 2010 (UTC)

I agree with these comments. Part of the reason for the ambiguity is that "common law" can mean the substantive principles of law which evolved in the English system, and it can mean the case-law system of defining the law. This is a tension which runs throughout this article, in my opinion. In any event, I've modified this section of the article accordingly. Mr Serjeant Buzfuz (talk) 14:40, 2 July 2011 (UTC)

The issue was resolved after August 2010, by conversations with Canadian lawyers. If I garbled it, please fix it, but the August 2010 comment is no longer relevant.Boundlessly (talk) 23:56, 9 July 2011 (UTC)

Powers of Canadian federal parliament is not highly relevant to common law. I moved that to footnote.Boundlessly (talk) 00:00, 10 July 2011 (UTC)

Common law as a foundation for commercial economies

In my humble opinion The "Common law as a foundation for commercial economies" doesn't adhere to the Neutral Point of View Policy of Wikipedia. Carel.jonkhout (talk) 04:31, 4 August 2010 (UTC)

Concur. Whomever wrote that clearly hasn't litigated New York contract law, which is an appalling mess compared to California, Washington, Texas or any other large state.--Coolcaesar (talk) 04:15, 6 August 2010 (UTC)

Agree - particularly when London, England is just as often chosen in, you know, the rest of the world. Particularly relating to maritime law. (143.167.143.161 (talk) 11:56, 6 August 2010 (UTC))

I'm a Massachusetts and New York lawyer, and do lots of international contracts. The only time I've *ever* seen a contract with a choice of law clause that picks a jurisdiction with which neither party has strong contacts, the choice of law is New York. But that -- oh, that situation I've seen/negotiated dozens of times. I worked on a Japan/France deal (nobody even in the U.S.!) that picked New York. Lots of U.S. deals with neither party in New York pick New York. I've never seen a California or U.K. choice of law for a contract unless at least one of the parties has its principal place of business (either for the company as a whole or for the subject matter of the contract) in California or U.K.

I fully concur that other fora are preferred for many types of litigation, especially for admiralty and defamation. But litigation is after the fact, the focus of this section is contracts, that is, commercial choices made before the fact. For defamation (which is not generally commercial law and thus not relevant here), London is the choice for pure forum shopping for substantive law (no pesky NY Times v Sullivan problem), not whether it's a deep predictable common law jurisdiction. Forum choice for non-commercial tort litigation doesn't inform about choice of law clauses in international commercial contracts. For admiralty, London is oft-chosen -- but for exactly the reason noted -- admiralty is commercial law, and London is chosen because of the depth of London common law.

The article accurately states the reality that I deal with, and that dozens of other lawyers see, including some London and Paris folks that I know. Are the statements in the article about choice of law clauses in contracts (not litigations) inaccurate? Boundlessly (talk) 20:40, 27 August 2010 (UTC)

Your experience is not normative. The fact you have are a US based lawyer means you will have little visibility of what goes on in the rest of the world. If you've never seen London as choice of jurisdiction for contract, that speaks of your inexperience and little else. The reality you deal with is not necessarily objective reality, it is just yours. London is the world's pre-eminent centre for international litigation. Masterrows (talk) 01:00, 20 December 2011 (UTC)

Masterrows: Thanks for making the point. The reason London is oft-chosen for commercial litigation is because of its depth of common law in most areas of international law. However, the effect of New York is even stronger in pure commercial contracts. Commercial parties choose jurisdictions with rich bodies of commercial law for commercial contracts (that is, agreements before the dispute breaks out), and for commercial litigation. But most often, a litigation plaintiff chooses forum for a reason unrelated to predictability -- often, precisely because the forum is a departure from the norm. Think two of the cases you studied in first year law school, Erie v Tompkins (of four possible bodies of law, three had substantive rules that would have resulted in Tompkins losing, so he chose Pennsylvania federal corut), Keeton v. Hustler Magazine, Inc. (in the other 49 states, the statute of limiations on defamation had run, only New Hampshire's statute of limiations was long enough to permit the case to be brought) -- both were forum shopping cases.

But for commercial contracts, most of the forum-shopping concerns are much attenuated. Commercial contracts choose a body of law that is fair and predictable, because both parties want a leval playing field for all issues, not just the precise issues in the one specific case. That's why this section focuses on prospective contracts, not retrospective litigation.

Take a look at the empirical data in the Eisenberg & Miller paper.

"New York’s dominance is striking. It is the choice of law in approximately 46 percent of contracts. New York’s share rises to over 50 percent if one excludes the merger contracts in which Delaware dominates by being the choice of law in over one-third of the agreements. With respect to all contract types combined, Delaware is a distant second with about 15 percent. After Delaware, no state accounts for even ten percent of the choices of law and only California even exceeds five percent."

Boundlessly (talk) 13:53, 29 January 2012 (UTC)

I added a POV-section tag to the section (was going to add a POV-check|section, but found out there's already a discussion here). What I most object to is that it reeks of "common law is great, other types are bad, for economics". Jalwikip (talk) 08:30, 23 January 2012 (UTC)

Jalwikip: strawman argments aren't helpful. Empirical data is. Take a look at the Eisenberg & Miller paper.Boundlessly (talk) 13:53, 29 January 2012 (UTC)

Downgraded an undiscussed Good Article assessment

I notice that an IP address had added a Good Article assessment to the WikiProject Law tag. As I have not seen any indication that this article has ever undergone a Good Article nomination in the archived talkpages, I will assume it was likely vandalism. I have assessed the article as B, consistent with the other tags. Safiel (talk) 23:39, 24 March 2010 (UTC)

• jyrdku6yfliyf76rly —Preceding unsigned comment added by 99.49.245.21 (talk) 22:27, 11 October 2010 (UTC)

First ethnic & minority rights in England

When was the first ethnic & minority rights (culture education political language rights) declared in England? Don't confuse it with immigration and citizenship laws/acts! Can you write me? Many Thanks! mail: stears333@gmail.com —Preceding unsigned comment added by 84.2.100.11 (talk) 07:08, 19 October 2010 (UTC)

Medieval Islamic law

Having watched this "medieval Islamic law" section evolve for about two years, I am now reasonably convinced (though without reading the underlying articles, e.g. Makdisi, Gaudiosi, etc.) that this section on Islamic influences doesn't belong here.

The argument made in this section seems to be a classic instance of post hoc ergo propter hoc fallacy, "after, therefore because of," speculative at best, and not very instructive.

Looking at the dates, knowing the little I know of Roman law, and so on, it seems that the common law features attributed to Islamic law were either borrowed from Roman law (which is nearly a millenium older than Islamic), or developed independently by parallel evolution - certain legal constructs are such good ideas, and so necessary, that they get invented and reinvented independently in multiple legal cultures, without any derivation. For example, I have no doubt whatsoever that Chinese law has had contracts for millenia, entirely independent of either Roman or Islamic traditions, and little doubt that the Chinese had a professional class of lawyers with training academies, and constructs parallel to trusts (at the very least, parents must have acted as trustees since Neanderthal times). The Hebrew Pentateuch clearly lays out legal reasoning by precedent and analogy, again hundreds of years before there was an Islam to have an Islamic law. The point is that good ideas recur, and mere similarity, without more, is not evidence of derivation (I'm an IP lawyer -- I deal with this all the time)!

I vote to remove this section from this article (the proponents would be encouraged to move the content to a new independent article, with a link from here). This section and its support seem so speculative that it dilutes the rest of the article. Boundlessly (talk) 15:05, 25 November 2010 (UTC)

I concur that the section is nonsense and should be removed. --Coolcaesar (talk) 20:01, 25 November 2010 (UTC)

I also think it should removed. The contributor of the section was the subject of this RfC/U [1], which I would like to draw everyone's attention to. It was additions like these that led to the RfC/U and subsequent cleanup. Athenean (talk) 22:50, 29 November 2010 (UTC)

See WP:Jagged 85 cleanup for an overview. I have no particular knowledge within this field, but text like "...whether English common law was inspired by medieval Islamic law" is exactly the type of POV cherry picking demonstrated for this user, and my feeling is that the section should be removed. It is clear that there has been some speculation on possible Islamic origins of common law, but in the absence of some well accepted and reliable sources, it is reasonable to assume that there is not sufficient evidence of a causal connection to warrant the current section. The "good ideas recur" point by Boundlessly above is precisely correct: it would be amazing if no similarity between two legal systems could be found. Johnuniq (talk) 02:42, 30 November 2010 (UTC)

I found the Makdisi article. The reasoning is very naive. The initial thesis is "the legal institutions of the common law fit within a structural and functional pattern that is unique among western legal systems and certainly different from that of the civil law. The coherence of this pattern strongly suggests the dominating influence of a single preexisting legal tradition rather than a patchwork of influences from multiple legal systems overlaid on a Roman fabric. The only problem is that no one preexisting legal tradition has yet been found to fit the picture. This Article looks beyond the borders of Europe and proposes that the origins of the common law may be found in Islamic Law. "

Oh pifflesnort. This is the same argument creationists use -- "The structure is so organized, there must be a God." Baloney, if the common law structure didn't work, it would have gone extinct long ago by natural selection. If common law had been imported wholesale from Islamic Law, the origins would not be "shrouded in mystery" as Makdisi states, the footprints would be much clearer. As every first year law student will tell you, there is no "structural and functional pattern," the common law is a collection of ideas, with amendments and subsequent repairs as defects are identified, that works well because of evolutionary processes, not part of a preconceived "pattern."

It's gone. Boundlessly (talk) 12:46, 30 November 2010 (UTC)

Thanks, but we have a problem. The material was removed last May, and was re-added in this edit by 99.246.101.166 at 22:33, 21 November 2010. In other words, this article will need indefinite monitoring to avoid efforts by enthusiasts. I noticed this because I went to update Cleanup2 to say this article had been cleaned, when I saw that another editor had already checked the article as being clean last June. Johnuniq (talk) 04:05, 1 December 2010 (UTC)

Is it just me that see's this or are the 'basic fundamentals' being blurred here? Said fundamentals being: The enormous & distinctive differnces existing between that which is called 'legal' and that of what is Our Law? — Preceding unsigned comment added by HayleyMarrie13 (talk • contribs) 04:48, 21 December 2011 (UTC)

Common Law versus Case Law

Common law should not be conflated with case law. They are actually two separate concepts. By popular usage any law that was not created by a statute or regulation is often called common law.

"COMMON LAW. That which derives its force and authority from the universal consent and immemorial practice of the people." Bouvier's Law Dictionary, 1856 Edition.

Case law, or judge-made law, while valuable is a means to establish certainty by setting precedent and describing the way the judge arrived at a decision. CommonLaw1215 (talk) 17:29, 24 December 2010 (UTC)

You have no idea what common law or case law is. Go to law school. --Coolcaesar (talk) 17:33, 24 December 2010 (UTC)

Be polite, Assume good faith, Avoid personal attacks, Be welcoming. You've certainly hit all the guideline points. Since law schools in the United States teach case law, how would one learn about common law in law school? CommonLaw1215 (talk) 18:06, 24 December 2010 (UTC)

Dear user "CommonLaw1215": This is from Black's Law Dictionary:

Case law. "The aggregate of reported cases as forming a body of jurisprudence, or the law of a particular subject as evidenced or formed by the adjudged cases, in distinction to statutes and other sources of law. See Common law." --- Black's Law Dictionary, p. 196 (5th ed. 1979) (bolding added).

Common law. "[ . . . ] the common law comprises the body of those principles and rules of action [ . . . ] which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts [ . . . ] and, in this sense, particularly the ancient unwritten law of England." --- Black's Law Dictionary, p. 250-251 (5th ed. 1979) (bolding added).

"'Common law' consists of those principles [ . . . ] which do not rest for their authority upon any express and positive declaration of the will of the legislature." --- Black's Law Dictionary, p. 251 (5th ed. 1979).

To "CommonLaw1215": There are some nuances, but the terms "case law" and "common law" are often roughly interchangeable as technical legal terms. You seem to be implying that you believe that "since law schools in the United States teach case law", a student in those law schools would not learn about "common law". With all due respect, that would be a nonsensical idea. Famspear (talk) 23:55, 24 December 2010 (UTC)

Famspear, I commend your earnest good faith in trying to explain these basic concepts, but the question "how would one learn about common law in law school?" is so silly that it's obvious trolling. Best to point that out and then ignore the troll. --Coolcaesar (talk) 17:31, 25 December 2010 (UTC)

We had a discussion of the Bouvier's definition a couple years ago, buried in the Talk archive somewhere. It's got three problems. (a) It's too imprecise to mean anything, (b) It's wrong (both underinclusive and overinclusive), and (c) it doesn't conform to any usage today (I can't opine whether it was correct or not in 1853, but it has no relationship to any present-day reality). Boundlessly (talk) 23:14, 6 January 2011 (UTC)

And just to pile on -- I agree with Famspear and Coolcaesar that the opening remarks of CommonLaw1215 are -- oh lets not use that word no matter how applicable it might be, let's say -- uninformed and uninformative. I share their exasperation at the morons that think that somehow God gave them a unique revelation of truth, yet that revelation has no relationship to reality of how parties order their relations under contract, judges decide cases, or legislatures make statutes. If a person's conception of "common law" doesn't conform to those three realities, then that conception is just -- uninformed and uninformative.

The remarks to which Famspear and Coolcaesar are reacting contain their own rebuttal presumption of good faith. Junk from crackpots need not be welcomed. Boundlessly (talk) 02:46, 27 January 2011 (UTC)

Origin of Common Law

I read the discussion under Medieval Islamic Law, but my comments don't really relate to that.

When looking for the origin of law, one can only go back as far as recorded history, possibly the Code of Hamurabi.

The very earliest law that we know of was decreed by kings like Hamurabi. While kings could decree whatever they wanted to, still king-made law generally accepted some principles of right and wrong.

Since Mosaic Law (law of Moses) was the earliest, as far as I can tell, known written law that didn't come from a king, one might consider Mosaic Law the genus of the common law.CommonLaw1215 (talk) 17:54, 24 December 2010 (UTC)

• Uninformed and uninformative. No further comment. Boundlessly (talk) 02:47, 27 January 2011 (UTC)

Section numbering 1-4

Is it necessary to number first section's subsections like this? I think they could be removed, the table of contents already assigns numbered decimal bullets automatically as it is, and it complicates and lengthens using section links unneccessarily. DB (talk) 19:17, 10 April 2011 (UTC)

Yes. The term "common law" has several definitions. Throughout the body of the article, when the difference makes a difference, the article specifies which of the several definitions is being invoked. 02:23, 24 April 2011 (UTC) — Preceding unsigned comment added by Boundlessly (talk • contribs)

Canada

There are two statements in the article about Canada that I'm pretty sure are false, or at least misleading.

Criminal law, which is uniform throughout Canada, is based on the common law as interpreted by the Supreme Court of Canada.

It should at least be noted that criminal law was codified as the Criminal Code, and there are no common law crimes except contempt of court.

The mid-tier Federal Court of Appeal is a single court that sits and hears cases in multiple cities, and thus mid-tier decisions have precedential value throughout Canada (that is, unlike the United States, Canada is not divided into appellate circuits).

The Federal Courts only have jurisdiction over certain areas of law. Most cases would progress from a provincial trial court, to a provincial superior court, to the provincial court of appeal, and finally to the Supreme Court of Canada. --yycguy81 (Talk) 15:24, 27 May 2011 (UTC)

I agree with these comments. Part of the reason for the ambiguity is that "common law" can mean the substantive principles of law which evolved in the English system, and it can mean the case-law system of defining the law. This is a tension which runs throughout this article, in my opinion. In any event, I've modified this section of the article accordingly. Also, I don't think that the comments on Federal Court jurisdiction were all that helpful, so I've just added a link to the Canadian court system article.Mr Serjeant Buzfuz (talk) 14:40, 2 July 2011 (UTC)

Incredibaly biased.

Well this shouldn't come as a surprise, considering that this is the english wiki but it is getting absurd.

The whole part about common law being more clear than civil law is BS and just plainly wrong. Abortion and drugs are the best example. A vague US analogue law, where the final verdict for a substance is done by a court and until a specific case and court decision exists one cannot say with certainty whether a new substance is illegal or not, is impossible in civil law systems. Every substance (and action, in other aspects of law) is, with 100% certainty legal or illegal. And if it is illegal the minimum and maximum punishments are clearly defined. Everyone can look up the law and inform himself on the legality of his actions and the possible risks. — Preceding unsigned comment added by 141.53.210.36 (talk) 19:17, 20 July 2011 (UTC)

The portion of the article you're referring to is specifically addressing the issue of contractual law, where the common law is generally much clearer than civil law because there's such an enormous body of case law in which it's easier to locate closely analogous cases. For example, even though many portions of the UCC are notoriously difficult to understand, one can find decisions in which they were authoritatively interpreted, and in turn, can rely upon those decisions in drafting contracts. In civil law systems, the lack of stare decisis greatly reduces predictability, which is not good for parties to commercial contracts, who want their lawyers to assure them that a particular clause will or will not be enforceable if the deal goes south and everyone hires lawyers and starts suing each other. --Coolcaesar (talk) 12:09, 21 July 2011 (UTC)

Reception of English Law

I've added a section detailing the reception of English law in Canada. I've also deleted the reference to Canada in the comments about reception statutes as a step to decolonization, as that is not accurate. In those Canadian jurisdictions that have reception statutes, they were enacted when colonies first came under British or Canadian control, as I have summarised. Reception statutes were not a step to decolonization in Canada; rather they were part of the initial steps of setting up the legal system in the new colonies.

I also added some headings to the sections on reception in the US, Hong Kong and other British colonies.

I would be interested to see some cites to the section stating that reception statutes were a step towards decolonization in other British colonies, as I'm not sure it's as neat and tidy as that passage suggests.Mr Serjeant Buzfuz (talk) 12:16, 22 July 2011 (UTC)

An admiralty case

In the last quarter of XXth century, during a british navy exercise in the high seas of the Atlantic ocean, a Vertical Take Off and Landing Harrier aircraft lost contact with its fleet; approaching the end of its fuel reserves, the pilot spotted an spanish flagged container merchantship, and, being a top quality professional, he managed to make a Vertical Landing on the ship's deck, so saving the high cost airplane, and his own life. The Sea laws supposedly give the ship who rescues in high seas another ship, a right to a part of the price of the rescued ship as a compensation for saving both property and lives. The british government refused to acknowledge the "landing" of the aircratf on the ship as a "sea rescue", and when the operator of the ship presented the case in the UK based admiralty court, they sentenced that this was not a sea rescue, and refused the ship owner and the captain the monetary compensation they claimed for saving both the pilot and the airplane. This sounds like a prevarication, and the only optimist teaching from this event would be the comment from the captain in introducing the story, when he called the ship owner to let him know what had happened: "You'll wet your pants laughing...".