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> Common law: some of the laws are based on customs, which means that things are against the law and can be punished because they have been punished by judges i

> Common law: some of the laws are based on customs, which means that things are against the law and can be punished because they have been punished by judges in the past. Can anyone give an example of this?

pjc50 10y ago
https://en.m.wikipedia.org/wiki/English_criminal_law#Common_law_offences https://en.m.wikipedia.org/wiki/English_criminal_law#Common_... Most common law was codified and modernised in the latter half of the 20th century.
a_humean 10y ago
US and UK courts help develop the law through the precedents they set in their judgements. Law is not just a product of the legislative process and statute, but also of case law developed by judges. Common law often leaves a lot of the details of implementation to judges, and judges are also left to interpret and establish the law when an unforeseen case comes to their court that the legislative process did not deliberate over. If a higher court establishes a precedent for punishment then a lower court might cite that precedent as part of their legal reasoning of why they are bound to a particular punishment, and an appeal can be made against that judge if it is found they don't follow precedent. If you read a formal judgement you will usually find references to case law created by previous judges scattered throughout a judge's argument. Edit: As an example maybe look at the recent popular case of Oscar Pistorius in South Africa in which a major contention has been the interpretation of case law by the judge to decide the appropriate category (murder vs manslaughter) and punishment for the killing of Reeva Steenkamp.
- mysterypie 10y ago
  But is there an actual modern-day example? Like, someone was punished for picking strawberries out of season because it's against common law even though there is no legislative law. It's sounds to me like this situation no longer arises -- everything has been written down as a law.
  - a_humean 10y ago
    New precedents are created all the time. Just look at the US supreme court which is a court with the primary responsibility of establishing case law precedents when lower courts disagree on statue and case law. They recently legalised gay marriage (I'd say good outcome based on bad reasoning, but whatever) and made it impossible for the US states and their courts from blocking gay marriage due to the precedent set as the highest court. Lower courts can now prosecute against states and officials that try to block it. The only thing that could override that ruling at this point is a constitutional amendment. I don't think we get many courts creating laws on picking strawberries out of season though. There would need to be an existing legal context in which strawberries picking out of season is an edge case that can be decided by case law.
    - mysterypie 10y ago
      Aha, so that's an actual modern-day example? An official who tries to prevent a gay marriage can be punished under common law even though there is no legislated law against officials trying to prevent gay marriage.
      - a_humean 10y ago
        Yes, there is no explicit statute that says that an official can be punished for preventing gay marriage, but new case law would make this an offence and a lower court might need to establish further new case law to decide what an appropriate punishment might be for the official or state that does try to block it within the legal context of similar violations of law both in statute and case law. Basically they would get fired for not performing their duties as an official.
  - ajdlinux 10y ago
    In many common law jurisdictions (not including my part of Australia any more, but still in many other parts of the Commonwealth), murder is a crime defined by the common law - these days, statutes set what the maximum sentence of a murder conviction can be, but the definition of the crime itself is a common law definition.
cmdkeen 10y ago
Scots law is more useful than the law of England and Wales in regard to common law offences as due to the long period with no separate Parliament it didn't go through the same process that England did of statute law replacing common law. Take the Scottish Breach of the Peace which is very different from the English version. "Where something is done in breach of public order or decorum which might reasonably be expected to lead the lieges being alarmed or upset or tempted to make reprisals at their own hand, the circumstances are such to amount to a breach of the peace". The complex sounding definition is the first thing, common law offences are more descriptive of a course of action than specifically spelling out elements. Over the years cases come along which clarify the boundaries of the offence - for instance requiring a public element, defining who counts as being public (not family members for instance). As a former police officer in Scotland I really like Scots law. It is simple enough that people tend to understand it. It is broad enough to encompass things the legal system may not have encountered before. The UK politically went through a rough time in the 2000s reassessing stalking, Parliament passes a blizzard of legislation trying to define it but didn't need to cover Scotland as it has always been treated as a Breach of the Peace. The big problem is that some cases can have massive unintentional consequences. Two cases that happened in fairly quick succession unintentionally prevented events in your home witnessed only by your family from being a breach. On the one hand that sounds sensible (hence why the court made the ruling) but also invalidated a breach being used to prosecute domestic abuse that didn't go as far as an assault (which again in Scotland is different from England). The Scottish Parliament had to rush through what became known as the "Statutory Breach of Peace" (Section. 38 of the Criminal Justice and Licensing (Scotland) Act 2010) in order to restore the ability to do anything.

pjc50 10y ago

https://en.m.wikipedia.org/wiki/English_criminal_law#Common_law_offences https://en.m.wikipedia.org/wiki/English_criminal_law#Common_... Most common law was codified and modernised in the latter half of the 20th century.

a_humean 10y ago

US and UK courts help develop the law through the precedents they set in their judgements. Law is not just a product of the legislative process and statute, but also of case law developed by judges. Common law often leaves a lot of the details of implementation to judges, and judges are also left to interpret and establish the law when an unforeseen case comes to their court that the legislative process did not deliberate over. If a higher court establishes a precedent for punishment then a lower court might cite that precedent as part of their legal reasoning of why they are bound to a particular punishment, and an appeal can be made against that judge if it is found they don't follow precedent. If you read a formal judgement you will usually find references to case law created by previous judges scattered throughout a judge's argument. Edit: As an example maybe look at the recent popular case of Oscar Pistorius in South Africa in which a major contention has been the interpretation of case law by the judge to decide the appropriate category (murder vs manslaughter) and punishment for the killing of Reeva Steenkamp.

mysterypie 10y ago
But is there an actual modern-day example? Like, someone was punished for picking strawberries out of season because it's against common law even though there is no legislative law. It's sounds to me like this situation no longer arises -- everything has been written down as a law.
- a_humean 10y ago
  New precedents are created all the time. Just look at the US supreme court which is a court with the primary responsibility of establishing case law precedents when lower courts disagree on statue and case law. They recently legalised gay marriage (I'd say good outcome based on bad reasoning, but whatever) and made it impossible for the US states and their courts from blocking gay marriage due to the precedent set as the highest court. Lower courts can now prosecute against states and officials that try to block it. The only thing that could override that ruling at this point is a constitutional amendment. I don't think we get many courts creating laws on picking strawberries out of season though. There would need to be an existing legal context in which strawberries picking out of season is an edge case that can be decided by case law.
  - mysterypie 10y ago
    Aha, so that's an actual modern-day example? An official who tries to prevent a gay marriage can be punished under common law even though there is no legislated law against officials trying to prevent gay marriage.
    - a_humean 10y ago
      Yes, there is no explicit statute that says that an official can be punished for preventing gay marriage, but new case law would make this an offence and a lower court might need to establish further new case law to decide what an appropriate punishment might be for the official or state that does try to block it within the legal context of similar violations of law both in statute and case law. Basically they would get fired for not performing their duties as an official.
- ajdlinux 10y ago
  In many common law jurisdictions (not including my part of Australia any more, but still in many other parts of the Commonwealth), murder is a crime defined by the common law - these days, statutes set what the maximum sentence of a murder conviction can be, but the definition of the crime itself is a common law definition.

cmdkeen 10y ago

Scots law is more useful than the law of England and Wales in regard to common law offences as due to the long period with no separate Parliament it didn't go through the same process that England did of statute law replacing common law. Take the Scottish Breach of the Peace which is very different from the English version. "Where something is done in breach of public order or decorum which might reasonably be expected to lead the lieges being alarmed or upset or tempted to make reprisals at their own hand, the circumstances are such to amount to a breach of the peace". The complex sounding definition is the first thing, common law offences are more descriptive of a course of action than specifically spelling out elements. Over the years cases come along which clarify the boundaries of the offence - for instance requiring a public element, defining who counts as being public (not family members for instance). As a former police officer in Scotland I really like Scots law. It is simple enough that people tend to understand it. It is broad enough to encompass things the legal system may not have encountered before. The UK politically went through a rough time in the 2000s reassessing stalking, Parliament passes a blizzard of legislation trying to define it but didn't need to cover Scotland as it has always been treated as a Breach of the Peace. The big problem is that some cases can have massive unintentional consequences. Two cases that happened in fairly quick succession unintentionally prevented events in your home witnessed only by your family from being a breach. On the one hand that sounds sensible (hence why the court made the ruling) but also invalidated a breach being used to prosecute domestic abuse that didn't go as far as an assault (which again in Scotland is different from England). The Scottish Parliament had to rush through what became known as the "Statutory Breach of Peace" (Section. 38 of the Criminal Justice and Licensing (Scotland) Act 2010) in order to restore the ability to do anything.