What is Common Law?
What is common law? In legal terminology, common law is the entire body of federal law developed by courts and similar quasi-jural tribunals under the principle of being expressed in written decisions. The defining feature of common law is that it derives as precedent. That is, certain cases or instances are deemed to have been already decided by the courts when in fact they were not. For example, a rape might be ruled as rape by one court, while in another state the rape might be ruled as something else. The meaning of the phrase “what is common law” is that the entire body of case law developed by the courts can be considered precedent.
The use of judicial precedents in deciding what is common law also raises a host of problems for litigants whose claims are governed by it. One of these problems is evident in the use of what is called “judicial notice.” Judicial notice refers to a requirement that a party that has been a party to an action must disclose relevant facts that help establish its legality. Although litigants are required to disclose their own facts in order to establish their case, a party not party to an action may not withhold information from a court so as to avoid judicial notice.
The problem is most apparent in criminal litigation. Often what is called a “frivolous question” or “for lack of knowledge of the courts” is not properly considered by a court of law. Even if it is considered, the party usually must file a motion challenging the district court’s jurisdiction over the issue, and then the motion is heard by the court. Once there, the courts take the position that the issue is not properly before them and must therefore vacate the order, which is not at all uncommon in a civil law system.
This same principle is also present in civil law cases. In a criminal action, if a party to the action cannot properly establish a fact (the essential legal issue), then it is not reviewable by the courts. For instance, in a drug case, if the government cannot establish that defendant knowingly violated any factual exception to the prescription drug act, then it cannot have standing to bring the case to trial. In other words, the mere claim that the facts a party learns after being subjected to …