Magister Ilmu Hukum Universitas Jambi (MH UNJA)

The law is a field that everyone is assumed to know, but the assumption is obviously wrong. The rule of law is so complex that most attorneys just specialize in a particular area since they can't keep track of everything going on. This is particularly do the to the continuing development of something known as common law.

Okay, it is a time to take a trip back to your civics class. How is our government process set up? Well, there are three branches – the legislative, judicial and executive branches. The legislative, Congress, is supposed to make laws. The judicial, the court, is supposed to oversee it. The executive, the President, is supposed to enforce it and guide the country. As you've probably noticed, the lines have become rather blurred when it comes to these duties and tasks.

Common law is the result of some of this blurring. Congress, as you've probably noticed, isn't exactly filled with the best of the best when it comes to intellectual minds. The legislature tends to pass laws that either conflict with other laws its passed or don't address big issues in the area in question. The only way to deal with this is for the courts to interpret the laws and make rulings. These rulings are known as common law because they set forth standards that must be followed even though the courts are not supposed to be making law.

For an example, let's just jump right into a hot button topic – abortion. The Supreme Court of the United States ruled in Roe v. Wade that a right of privacy is inherent in the constitution and that said right is sufficient to rule that a women has the right to control her body. Thus, we know that abortion is legal as a matter of common law. Of course, the current court is much more conservative and will reverse Roe v. Wade probably sooner rather than later, but that is another issue for another article.

Now compare the federal situation to the abortion question as applied in California. The state has its own constitution. The right to privacy is specifically written into the document and there is no room for interpretation. Although not technically written by the legislature in California, the law is “on the books” and there is no need for a court to determine whether the right exists as a matter of common law or not. Given this, the right to privacy will always exist in California unless the state constitution is changed.

So, which set of rules plays a more prominent rule in real life – the laws passed by Congress or the common law issued by courts? It depends on the area of law, but common law is use in a majority of cases in one form or another.

di Senin, Mei 03, 2010 Comments