Essay Title: 

The Common Law is dead. Persistent inroads into Common Law precedent through the statutory instruments of the legislature has reduced its part in the legal system to that of anachronism

March 24, 2016 | Author: | Posted in religion and theology

The Common Law Is Dead : Or Is It

Objective

The focus of this research is the area of what is termed `common law and to address the question of whether persistent inroads into Common Law precedent through the statutory instruments of legislature has reduced the role of common law in the legal system to that of anarchism

Introduction

Oliver Wendell Holmes , Jr . in the work entitled : The Common Law states “The life of the law has not been logic it has been experience (Oliver Wendell Holmes , Jr , 1880 ) `Common Law [banner_entry_middle]

‘ is defined as : the body of unwritten principles originally based upon the usages and customs of the community (Anderson , Fox and Twomey , 1989 ) These rules of `Common Law ‘ .were recognized and enforced by the courts (Ibid ) Anderson , Fox , and Twomey (1989 ) additionally state that : In truth the law is an arbitrary set of rules that we have agreed upon to govern ourselves (1989 ) Within the framework of this democratic legal structure the basis of the law is the rights of the human being (Ibid ) Also within the framework of the democratic legal structure is the right to privacy (Ibid

Law exists in two forms which are laws that are `Constitutional ‘ and the laws that are referred to as `Statutory ‘ laws . Constitutional laws are those governed by the federal or state constitution while the statutory laws are the legislative acts which declare , command or prohibit something . There are other laws in the form of regulatory laws such as the Securities and Exchange Commission (SEC ) Regulations set out by the national and state administrative agencies generally have the force of statute and are therefore part of `the law

I . Death of the Common Law

In a 1918 article in the Yale Law Journal entitled “The Dead Hand of the Common Law ” appeared the work of a Mr . Justice Young of the Supreme Court of New Hampshire . It appears that the Supreme Court Justice was suggesting that common-law was no longer that which determined the direction of law . In the work entitled “Common Law vs . Conquest ” it is stated that in the United States “The forefathers that represented the states (colonies ) at the beginning of this country acted primarily for their interest (Young , 1918 ) The article of Mr . Justice Young was called suggestive ‘ at the time of its publication which was a questioning of the legislative system in the U .S . and whether the common law was losing its place in the democratic society

Oliver Wendell Holmes Jr . states of common law that “The felt necessities of the time , the prevalent moral and political theories institutions of public policy , avowed or unconscious , even the prejudices which judges share with their fellow men , have had a good deal more to do than the syllogism in determining the rules by which men should be governed . The law embodies the story of a nation ‘s development through many centuries , and it cannot be dealt with as if it contained only the axioms and corollaries of… [banner_entry_footer]

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