JUST 300 Exam 2 Review

JUST 300 Exam 2 Review - The Common Law Tradition •...

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The Common Law Tradition Pre-History of Common Law o Roman Occupation- little influence o Anglo-Saxon Period- held legal traditions to themselves o Norman Conquest- personalized government, if wanted something had to ask king Royal Courts o King and advisors in council o Court of Exchequer- all fiscal matters, gave authority o Court of Common Pleas- involved commoners and their problems o King’s Bench- in name of king, hears cases; exists today Other Developments o From Writ System (king authorizes courts to deal with types of cases; still today) to Statute of Westminster (can’t issue writs) o Magna Carta (rights to privileged) to Statute of Gloucester (justices of peace; developed customary practices) o Influence of ecclesiastical courts and canon law (church courts) o Equity and the Court of Chancery (gatekeeper to king; decided what is right) o Justices of the Peace Act- apply present justice system o War of the Roses o Tudor Monarchs o Stuarts Towards Modern Times Edward Coke English Bill of Rights William Blackstone 19 th and 20 th century reforms The Diffusion of Common Law Useful Distinction o Seeded- elements of tradition brought and left legacy (India) o Settled- brought tradition, grafter, and grew from there (US colonies) o Conquered- imposed legal system over existing one, creating hybrid (South Africa) Legal Structures in the English System The British Government o House of Commons o House of Lords o Prime Minister and Sovereign o Judicial Structure Solicitors and Barristers o Initiate court actions, lower court advocates or legal services; Advocates or legal consultants in any type of court
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Some Elements of the English Common Law System o A preference for oral process (evidence) rather than a written process o An accusatorial (or adversarial) approach rather than an inquisitorial approach In a trial, three functions take place 1. Presenting/gathering evidence in a trial 2. Formally charging of crime 3. Judgment – adjudicating innocence – right/wrong There are also 3 ways of doing this 1. Inquisitorial process (Soviet legal system, some Islamic legal traditions)- one person conducts investigation, gathers evidence, tries, charges/sentences 2. Accusatorial system- prosecutor charges, lawyers present evidence/defend, judge decides guilt/innocence, directs inquiry 3. Adversarial system (police, etc.)- investigate crimes, judge/jurors decide guilt or innocence and charge “Rules” of the Common Law Tradition o Precedent- unlike civil law system, if preceding judgment bound by that decision (within jurisdiction) Stare decisis (most powerful)- let decision stand, unless major reason to overturn, doesn’t have to stand forever ratio decidendi- touches on how you decide, methodological issues, not principle How rules applied, sometimes change over time Obiter dicta- not written but apply as principles, used in common law tradition, acquired status over time
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This note was uploaded on 04/27/2008 for the course JUST 300 taught by Professor Pham during the Spring '08 term at James Madison University.

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JUST 300 Exam 2 Review - The Common Law Tradition •...

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