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Know About Common Law and You’ll Understand Our Legal System.

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When most people hear the term “common law,” they think of marriage or of ambiguous “rights” and “privileges.”

In reality, it’s important that all Americans understand things about common law in order that we might understand how our legal system works.

Common Law as a legal term refers to the law under a legal system of the same name.

This legal system uses the decisions of courts and tribunals (aka “case law”) to define the law and how it is applied.

Often, this is referred to as “precedent,” since the legal decisions of past court cases are called “legal precedent” in the court.

Other legal forms include statutory law and regulatory law. 

In statutory law, the law is defined by a legislature who sets statutes, detailing the law itself.

In regulatory law, an executive government will assign law-making abilities to bureaucratic agencies, who define the laws (or regulations).

The United States uses a combination of these three types of law-making, utilizing the legislature to create the law, the executive to execute and enforce the law, and the judiciary to refine and test the laws against our governing Constitution.

That is the idea of our system of checks and balances; though reality can often be a far cry from the core idea, of course.

The basis for all of this, however, is the Common Law we adopted from Britain, which utilizes courts and juries to decide the law itself, so knowing about common law is important.

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How Common Law Works

In the United States, two basic forms of judicial courts exist: common law courts and equity courts.

While the courthouse and the judge may be the same, the procedures during the case hearing itself will be different depending on which of these two the case is considered to be: about common law or about equity law. 

Common law courts are the courts used to try criminal cases and those cases which affect more than just property.

Equity courts are generally concerned only with property and, thus, can only rule in terms of property (ownership, fines, etc.).

Common law courts come with rights of jury trial while equity courts do not.

In a Common Law court, the legal decision made by the court can be used as precedent to decide future cases and past cases can be used as guidelines to decide the case.

In this way, precedent is often called upon to make points of fact or to decide procedure and possible punishments.

In a Common Law court, the judge is a referee, not a decision maker, the decisions (application of guilt, sentencing, etc.). Remember that.

In Common Law court, the jury has full power to decide not only what the guilt may be, how the guilty should be sentenced, but also whether the law even applies
(jury nullification).

Juries have full powers to throw out the law or question its very legality and constitutionality and even to adjourn a case and throw it out without further hearings.

This, of course, means the judge in the case has little or no power except in keeping order in the court and ensuring that procedures are carried out according to the law and the wishes of the jury.

That, of course, is demeaning to the “high office” of a judge, so Common Law as it should apply rarely does.

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Legislating from the Bench

Many websites and so-called “experts” in the law, usually with a bone to pick about how the law doesn’t reflect what they wish it would, claim that this sort of law-making is “legislation from the bench.”

In reality, all legal systems which are based in law are built to work this way: to legislate from the bench.

The question here is not where the law is being defined, but rather by whom.

In a common law court, the jury has full rights to decide the law and its applicability, as mentioned earlier.

Judges, whether in equity court or common law court, do not have this right or ability.

This hasn’t stopped them, of course, which is why accusations of “legislating from the bench” are so common.

One exception to this common law rule, in the United States, is the Supreme Court.

The United States Supreme Court as well as the Supreme Courts of the individual States can make decisions about the Constitutional application and legality of the law and overturn those found to be illegal. 

This applies to both precedent (case law) and legislative law. It also applies to executive, regulatory law.

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How Common Law is Ignored or Usurped

Three basic things conspire to remove true law from our courts: ignorance, procedural doctoring, and power brokering.

Ignorance is easy to pinpoint, as most Americans are completely unaware of the true powers a jury holds and of the lack of power a judge may hold in a court about law.

If more Americans knew about law, fewer judges would be able to usurp the jury’s powers and take it for themselves.

Procedural doctoring and power brokering often go hand-in-hand as judges, lawyers, and others who have been trained in the law (and know how common law should work) work together to remove the common law power from the jury.

By doing so, they can more easily dictate the law and the precedents it is based upon. 

For instance, if a precedent is not mentioned during a case, it does not apply.

A lawyer may be well aware of a piece of case law that applies to his client’s case, but will ignore it in order to change how the case proceeds. 

Judges, also aware of this, know that they are required to referee and use this as an excuse to ignore the oversight of the lawyers involved.

All of this works together to manipulate common law to their advantage.

This is why more Americans need to learn about common law and how it functions in our system of government.

Civic lessons teach of the Constitution, the powers of the legislature and the executive, but rarely talk about the powers of the courts beyond the Supreme Court itself. 

The Supreme Court is very different from the common courthouse down the street and those left ignorant of how a common law court functions are left powerless to utilize it to its full potential in protecting the rights of themselves and their fellow citizens.

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