Group 16- Common Law
-
Upload
leiya-lansang -
Category
Documents
-
view
215 -
download
0
Transcript of Group 16- Common Law
-
8/14/2019 Group 16- Common Law
1/41
-
8/14/2019 Group 16- Common Law
2/41
What is CommonLaw???
-
8/14/2019 Group 16- Common Law
3/41
Common Law
It is a body of rulings made by judges on the basis ofcommunity customs, beliefs, usages and principles that areobserved as rules of conduct. It is also based on previous courtdecisions. It covers matters such as contracts, ownership ofproperty and the payment of claims for personal injury.
Characteristics of common law:
it is unwritten and flexible, thereby meeting the exigenciesof time.
It is influenced by the laws of the Saxons, Danes, Normans andRomans. The system has been administered by the common lawcourts of England since the Middle Ages. It presently forms anessential part of the legal system of many English speakingcountries, including the United States and Canada.
-
8/14/2019 Group 16- Common Law
4/41
History
ofCommon Law
-
8/14/2019 Group 16- Common Law
5/41
History
The term is of English origin and is used to describe the juridicalprinciples and general rules regulating the possession, use and
inheritance of property and the conduct of individuals.
Sir William Blackstone
"Commentaries upon the Laws of England"
that the common law consists ofrules properly called leges non script,
because their original institution and
authority were not set down in writing as
Acts of Parliament are, but they receive
their binding power and the force of laws
by long immemorial usage, and by their
universal reception throughout the
kingdom
-
8/14/2019 Group 16- Common Law
6/41
History
Common Law as..
"tacito illiterato hominum consensu etmoribus expressum"
expressed in the usage of the people,
and accepted by the tacit unwrittenconsent of men
Aulus Gellius
Common law originally developed under
the inquisitorial system in England fromjudicial decisions that were based in
tradition, custom, and precedent. The form
of reasoning used in common law is
known as case-based reasoning.
-
8/14/2019 Group 16- Common Law
7/41
History As applied in civil cases: a devised as a means of compensating
someone for wrongful acts known as torts, including both intentionaltorts and torts caused by negligence, and as developing the body oflaw recognizing and regulating contracts.
The type of procedure practiced in common law courts is known asthe adversarial system; this is also a development of the common law.
Henry II of England
He institutionalized common law by creating a
unified system of law "common" to the country
through incorporating and elevating local
custom to the national, ending local control
and peculiarities, eliminating arbitraryremedies and reinstating a jury system
citizens sworn on oath to investigate reliable
criminal accusations and civil claims. The jury
reached its verdict through evaluating common
local knowledge.
-
8/14/2019 Group 16- Common Law
8/41
History
He also developed the practice of sending judges from his
own central court to hear the various disputes throughout the
country.
His judges would resolve disputes on an ad hoc basis
according to what they interpreted the customs to be.
The king's judges would then return to London and often
discuss their cases and the decisions they made with the other
judges. These decisions would be recorded and filed.
Henry II of England
-
8/14/2019 Group 16- Common Law
9/41
History
In time, a rule, known as stare decisis (alsocommonly known as precedent) developed, which iswhere a judge would be bound to follow the decisionof an earlier judge; he was required to adopt theearlier judge's interpretation of the law and apply the
same principles promulgated by that earlier judge ifthe two cases had similar facts to one another.
By this system of precedent, decisions 'stuck' andbecame ossified, and so the pre-Norman system of
disparate local customs was replaced by anelaborate and consistent system of law that wascommon throughout the whole country, hence thename, "common law.
-
8/14/2019 Group 16- Common Law
10/41
Interpreting and
Predicting CommonLaw
-
8/14/2019 Group 16- Common Law
11/41
The Common Law
Doctrinal Framework
-
8/14/2019 Group 16- Common Law
12/41
stare decisis
precedents
-
8/14/2019 Group 16- Common Law
13/41
The Common Law DoctrinalFramework
stare decisis
a court will generally follow its prior
decisions and that a court is expected to
follow decisions of the courts to which it issubordinate
precedentsif a court within a similar legal system
has previously considered and resolved aparticular problem, its decision is worthy of
consideration in resolution of future similar
-
8/14/2019 Group 16- Common Law
14/41
mandatory
persuasive
-
8/14/2019 Group 16- Common Law
15/41
Types of Authority for JudicialPrecedents
Mandatory
that which a court should generally
consider itself bound to follow
Persuasive
that which a court should consider andmay be inclined to follow
-
8/14/2019 Group 16- Common Law
16/41
-
8/14/2019 Group 16- Common Law
17/41
-
8/14/2019 Group 16- Common Law
18/41
Factors which Make
Opinion Analysis Difficult
-
8/14/2019 Group 16- Common Law
19/41
Language
Semantic Ambiguitywhen the particular meaning intended is not
clear in a particular context
Syntactic Ambiguitydue to the uncertainties of modification orreference that are unresolved by the context
Internal Contextual Ambiguitysuch as inconsistent statements within an
opinion
External Contextual Ambiguity
such as inconsistent statements withstatements in an opinion of the same court in an
-
8/14/2019 Group 16- Common Law
20/41
Operation of Appellate CourtSystems
the judges are always pressed for time and arealways pressured to reach a majority agreement
the opinion may always have several contributors
Dissenting Opinion - an opinion explaining thereasons for disagreeing, and elaborating on whatdecision the dissenter would have reached
Concurring Opinion - an opinion that agrees withthe decision of the majority, but explains a
different reasoning
there is no opinion of the court
there may not be a decision by the court
-
8/14/2019 Group 16- Common Law
21/41
Opinion Analysis
-
8/14/2019 Group 16- Common Law
22/41
-
8/14/2019 Group 16- Common Law
23/41
Opinion Analysis
Decision a statement of the procedural action taken or
directed with reference to the case before it
describes the substantive result in a case
Issuemust be stated in the affirmative form if the
answer in the substantive decision is yes,otherwise, it must be stated in negative form
the issues before the court may also form ahierarchy - analyzed by asking why until thespecific question that the court appears to
answer is arrived at
-
8/14/2019 Group 16- Common Law
24/41
Opinion Analysis
Reasoning
Precedent justification - justifyingapplication of an existing rule
Policy justification -justifying a result ora new variant rule as it refused to followa precedent or conclude that there is noprecedent
-
8/14/2019 Group 16- Common Law
25/41
Opinion Analysis
Precedent Justification The significant facts are
identical, and theprecedent is applied
The significant facts aresufficiently similar, andthe precedent is applied,but is extended byanalogy, and may befurther explained by policy
justification The significant facts are
not identical or sufficientlysimilar and the precedentis distinguished of limitedand not followed, therebyreasoning out with policy
Policy Justification
relies on social utility,ethical considerations,general standards of
justice, or custom orbusiness practice orexpediency
may also use negative
parade of horriblesreasoning, which relaysthe undesirableconsequences of theother available choices
-
8/14/2019 Group 16- Common Law
26/41
-
8/14/2019 Group 16- Common Law
27/41
Opinion Evaluation
-
8/14/2019 Group 16- Common Law
28/41
Opinion Evaluation
Mandatory Precedents - The point of
evaluation is identification of weaknesses
or strengths relating to the possibility of an
overruling or limiting decision.
Other precedents - identification of
weaknesses or strengths relating to their
persuasiveness as authority.
-
8/14/2019 Group 16- Common Law
29/41
Opinion Evaluation
In evaluating the substance of an opinion,
one may use a two-prolonged approach
based on the two basic types of reasoning
that may be used by courts. Are the courts precedent justifications
adequate? Is the opinion technically valid?
Has the court advanced valid policyjustifications? Has it considered all possible
conflicting policy considerations?
-
8/14/2019 Group 16- Common Law
30/41
In determining what law will probably control the
resolution of a particular problem, one has to
evaluate more than the opinions substance
Consequently, Philippine courts may properlyresort to common law principles in construing
doubtful provisions of a statute, particularly
where such statute is modeled upon Anglo-
American precedents.
-
8/14/2019 Group 16- Common Law
31/41
Some Factors that Affect
Persuasiveness What is the level of the deciding court within
jurisdiction?
When was the case decided?
Was the decision or reasoning divided?
Was the case considered by the whole court? Does the opinion carry a full report of the case?
What was the quality of the arguments presented bycounsel?
How was the decision been subsequently treated bythe deciding court and other courts?
-
8/14/2019 Group 16- Common Law
32/41
Opinion Synthesis
-
8/14/2019 Group 16- Common Law
33/41
Opinion Synthesis
Synthesis is essentially a process of comparingand relating precedents which have common oranalogous facts. Select first the germane mandatory precedents
If there is more than one germane precedent, then one mustcompare the precedent cases and relate the opinions
From this process, one will obtain a view of how thecourts of the particular jurisdiction have dealt with theproblem area
If the synthesis of mandatory precedents does notreveal a clear prediction or if the evaluations suggestweaknesses in the mandatory precedents, one mayhave to repeal the process with respect to germanerelevant persuasive precedents.
-
8/14/2019 Group 16- Common Law
34/41
Opinion Synthesis
Another variety of synthesis :one to trace growth of a particularapproach to a given problem area.
One has to start with the assumption that the opinions are actuallyconsistent. Comparison of these opinions is crucial.
The following questions may be asked in the process of comparingopinions:
Are these decisions truly consistent? If the facts are similar, does the court appear to apply the same
principle or rule? Is the reasoning inconsistent or merely payment variant from
opinion to opinion.
In actual problem solving, ideally, synthesis will be a progressiveprocess which accompanies analysis of individual opinions. As onefinds and analyzes relevant who is vote similarities, distinctions infact patterns, questions presented, decisions, reasoning, andunderlying rules and principles
-
8/14/2019 Group 16- Common Law
35/41
Common Law in the
Philippines
-
8/14/2019 Group 16- Common Law
36/41
-
8/14/2019 Group 16- Common Law
37/41
-
8/14/2019 Group 16- Common Law
38/41
-
8/14/2019 Group 16- Common Law
39/41
-
8/14/2019 Group 16- Common Law
40/41
Civil Law vs Common Law:
Case Law vs JurisprudenceCivil LawStatues and codes are the major
source of law. Lawyers &judges rely on the generalprinciples and apply them to
the facts in a particulardispute, but the facts fromprior, similar cases do notprovide the required authoritynecessary to decide a dispute.
Common LawCase Law is the major source of
law. Cases within a particularjurisdiction and which applythe legal rule(s) to similar sets
of facts are consideredprecedent. The results fromthe application of the rule tothe facts cannot be varied in acurrent dispute without stronggrounds to distinguish the
current dispute from thedecisions published for priordisputes (i.e., case opinions).
-
8/14/2019 Group 16- Common Law
41/41
Civil Law vs Common Law:
The Study of LawCivil LawStudents read and study legal
doctrine (more than or to theexclusion of case opinions).Doctrine is the accumulated
writings of professors andothers learned in the law thatstates / describes what thelaw is. (In the common law,much of this type of analysis ofthe law is considered a
secondary source of law,which helps to explain orunderstand the law, but whichis not itself the law.
Common LawLegal education relies on the
case method or Socraticmethod of study. Studentslearn to discern the law from
one or more cases within ajurisdiction, and then to predictthe outcome of or advocate aposition in a dispute based onthe similarities and differencesbetween the facts of these
precedent cases and thefacts in the current dispute.