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Common law is a type of law that is formulated by the judges, through judicial processes and tribunals. They are laws that are not enacted by means of legislative processes. In this regard, the judges formulate the laws based on their discretion. “The origins of the common law lay in the justice of the king, exercised through his curia Regis, rather than the customary law exercised in the old communal courts of shire” (Smith & Lerner, 2000).
Common laws emerged in England, and they were later adopted by many territories, which were under the governance of England. For example, the commonwealth countries added the English laws into their legal frameworks. “English law prior to the American Revolution is still part of the law of the United States through reception statutes, though it has no superseding jurisdiction” (Walker, 1997). The application of common law is technical. For example, the courts verdicts are obligatory only in a given jurisdiction. Nonetheless, some courts may exhibit more authority within a particular jurisdiction. Case-based reasoning is a model of judgment applied in common law. Adversarial system refers to a kind of procedure applied when common law is practiced.
The organization of courts has remained unique in various countries. Therefore, it is never easy to find two or more countries that exhibit similar judicial structures. This means that various countries might only share some aspects of the judicial processes. In the USA, a given state can formulate its judicial structure according to its own desire and organizational scheme. For instance, a state may have numerous courts with different jurisdictions. Thus, “the organization of state courts does not necessarily resemble the clear-cut, three-tier system found at the federal level” (Posner, 1972). For example, the trial courts are termed district courts in the federal structure, while the appellate tribunals are called circuit courts.
The arrangement of state courts is marred with a lot of confusion, but they remain important. The statutory law is applied less at the federal level, but more the state level. Statutory law also has a wide scope of application. This is because it encompasses both private and public legal issues and policies. Consequently, state courts have a wider scope of jurisdiction than federal courts. The number of disputes and cases they ratify annually also exceed those handled by federal courts.
In America, the colonial administration was mainly managed by an appointed governor that was answerable to the administration of England. Both executive and judicial duties were bestowed on the governor. This meant that an elaborate court structure was not important. The colonial judiciary was comprised of magistrates who occupied junior positions. The colony’s governor selected the magistrates. The county courts were responsible for handling ordinary cases within the colonies. Appeal cases that were derived from junior courts were channeled to the governor who handled them. In this case, the governor had a council, which helped him in handling the appeals. Grand juries also emerged during this timeframe, and they are still significant aspects of the judicial systems exercised by the states.
The legal profession witnessed a considerable transformation from the 18th century. For instance, many lawyers received adequate legal trainings. In this process, the common law that was complicated was embraced, and the colonial court processes were gradually faced off (Holmes, 1987).
After the American Revolution that lasted from 1775 until 1783, the government’s power was redistributed to the legislative and judicial organs. The colonialist that had left the American colony did not support the establishment of an elaborate independent judicial system in their former American colony. “This is because many of them harbored a distrust of lawyers and then common law” (Sampson, 1992). The state legislatures keenly examined the conducts of the judicial officers, and some courts and judges were penalized for making unpopular conclusions. Increasingly, the judiciary was subjected to a lot of criticism as the courts questioned the legality of the legislative actions. Therefore, controversies increased between the legislatures and the judges due to their divergent interests. For example, the legislatures were often willing to deal with policies that protected debtors. On the other hand, the courts supported the interests of creditors. These controversies concerning power struggle between these two institutions were significant. This is because they led to the establishment of an independent judicial body.
Modern State courts
The courts experienced myriad challenges especially from the period of the Civil War until the twentieth century. During this period, there was great industrial advancement and urban areas also developed tremendously. These developments were characterized with numerous legal disputes that culminated into complicated court processes, which dragged on for long durations. Another noteworthy challenge the courts faced was the fact that they lacked the experience and competence to deal with disputes of this nature. This led to a serious backlog of cases in the American courts. Hence, they grappled with the challenge of dealing with a new dimension of cases.
With regard to this challenge, the judicial system adopted a number of strategies. For example, they created more courts in order to clear the backlog of disputes. The second response entailed giving some courts the mandate to handle cases that emerged within a given geographic area. Another decisive step that was meant to improve the judicial efficiency involved the establishment of courts that were specialized in dealing with specific cases. It is from this strategy that special courts such as the juvenile court were formulated. The expansion process of the courts was not effectively planned, and it caused a situation known as court fragmentation. Moreover, several courts ended up having very limited jurisdictions, which to some extent also overlapped.
These weaknesses led to the questioning of the efficiency of the American courts especially in the twentieth century. The court unification was, therefore, a strategy formulated to solve the above mentioned complications. Roscoe Pound was among the major individuals that supported the idea of court unification. Nonetheless, court unification sparked off another wave of criticism from several lawyers, who had familiarized themselves with the existing court procedures. Some judges and court officials were also unreceptive to the court reforms. The practice of dual court system was then adopted to solve this contradictions, and it can be discusses as follows.
Dual Court System
The concept of a dual court system emerged from federalism, which is exercised in the United States. It is referred to as a dual court system because it is composed of the federal courts and other courts established in various states known as state courts. The judiciary is a significant institution of the federal government, and its establishment and duties are based on constitutional guidelines. “Federal courts have exclusive jurisdiction only over certain types of cases, such as cases involving federal laws, controversies between states, and cases involving foreign governments” (Walker J. , 1999). On the other hand, most cases are basically dealt with by state courts. “In both federaal and state trial courts the parties have a right to trial by jury in all criminal and most civil cases” (Marcus, 2009). Depending on the circumstances, the federal courts may practice some similar jurisdictions with the state courts.
The Supreme Court is also an important element of the judiciary, and it derives its guidelines from the constitution. It handles sophisticated hearings that emerge from junior and special courts. “The Congress is mandated to create lower federal courts” (LaPiana, 1994). With regard to this arrangement, the congress has formulated two distinct courts. These are district courts, which have specific functions that are different from those of the circuit courts.
The manner state courts are organized is not static. Although state courts exhibit unique features, some common features can be identified among them. For example, the jurisdiction of the majority of state courts is restricted, and one judge usually presides over minor proceedings of a state court. “There is no federal common law because the federal government functions on the basis of a written constitution, through which the people delegate power to the government” (LaPiana, 1994). Nonetheless, the judges may apply common law in solving some disputes, which cannot be handled effectively through the application of the federal law.
Civil and Criminal Cases
The legal system that is applied in the USA categorizes cases into criminal and civil. Crimes refer to wrongdoings against the state. The state strictly prosecutes such offenses. Civil cases involve legal disputes that arise between persons. For instance, if an individual infringes on the rights of his colleague then he can be sued for a civil offense. Civil cases can be distinguished from criminal cases as follows.
The types of penalties or punishments for these cases are not the same, and this can be used to distinguish them. The prime punishment for a criminal offense in most cases is a jail term. Nonetheless, monetary punishment is also applicable in this case. Both punishments are also applicable in some circumstances. On the other hand, monetary charges or a directive to do something is often applied in punishing an individual sentenced for a civil offense. In most cases, a jury is usually formed to conduct criminal case trials. A civil case is mainly handled by a judge, but it may also be handled by a jury (Spencer, 2011).
The standard of evidence needed for proofing a criminal case is relatively higher than that needed for a civil case. “A defendant in a criminal case is entitled to an attorney, and if he or she cannot afford one, the state must provide an attorney” (Schulhofer, 2001). In a civil case, a defendant makes his own arrangements to get an attorney. The defendant can also choose to defend himself. Criminal law also gives more protection to defendants. In the context of a civil case, such protections are usually absent. “Although criminal and civil cases are treated very differently, many people often fail to recognize that the same conduct can result in both criminal and civil liability” (Marcus, 2009).
The above discussion traces the evolution of common law practices from England to America. Although the Americans adopted the facets of the English law, they have managed to modify them to suit their context. At present, the USA has an efficient judiciary with proper structures and procedures. Currently, “common law legal systems are in widespread use, particularly in England where it originated, and in nations or regions that trace their legal heritage to England as former colonies of the British Empire” (Holmes, 1987).