Common Law

There are two general categories of American law: Civil Law (statutes and other written rules), and Common Law (case decisions or judge-made law). Civil law normally comes from a legislative body such as Congress and is published in the form of statues. Common Law is derived from precedent, that is, deciding a current legal controversy by referring to how similar controversies have been resolved by judges in the past. Another way of looking at Common Law is thinking about how we all learn things from our parents, in other words, benefitting from their good and bad experiences which they share with us.

If you should be among that select few who regularly read this column you may recall a couple of weeks ago we were considering the Common Law/Common Sense guidance set forth by some of my fellow alumni and alumnae of the National Judicial College in Reno, Nevada. I find I have learned more from the wisdom of my fellow judges than any classroom. You probably feel the same way about how you have relied on the good and bad experiences of others to help you repeat or avoid similar situations.

Following are a few more “Common Laws” taken from an article in Case In Point, the NJC 2017-2018 publication concerning, Things Judges Wish They Had Known BEFORE They Took The Bench:

“Part of a judge’s developed skill, especially a rural judge, is having a feel for whether or not a particular case will actually go to trial. This helps immensely with case scheduling, jury summoning and with the possibility of a judge getting a good night’s sleep almost every night. I finally concluded that a lesson could be learned from the occupation of circus ringmaster.”
Hon. Jess B. Clanton, Jr. (Ret.), 12th Judicial District, Oklahoma;

“How much this job would change how I view the world. I had spent 30 years as a police officer prior to being appointed, and I thought I had a good view of the world. This job made me step back and really look at everything-everything I did, everything I posted, everything I said to friends and how I acted in public and around my family. I really wanted people to look at me and respect me for the job I was doing. In doing so, I had to step up and make sure I was worthy.”
Hon. Kevin L Wilson, Justice of the Peace Court, Kent County, Delaware;

“How hard it is to be firm and uphold the values and rules when the person in front of you has been so beaten down by life that it makes it feel like you are kicking a poor wounded animal. … Somewhere in the middle you have to find justice.”
Hon. Jeanette L. Umphress, Municipal Court of Yuma County, Arizona;

“You are only as good as your worst hearing.”
Hon. Samuel A. Thumma, Arizona Court of Appeals, Division One; and,

“Never, NEVER go on the bench with a full bladder!”
Hon. Peter H. Wolf, Superior Court, District of Columbia

During August and September this year, as for several years before, the National Judicial College will be presenting Internet courses to judges from across America. Other members of the NJC faculty and I will discuss with student judges via computer and telephone how to bring more just results in our courts.

The faculty is comprised of volunteer judges and staff in Nevada, Colorado, Indiana, Mississippi and Tennessee. My experience over several years of judging and continuing judicial education by both Internet and brick and mortar classes has led me to the conclusion judges should not concentrate on techniques but rather systems of thought, i.e., legal theory. “How to” knowledge is helpful but “why to” understanding is vital.

Friedrich Karl von Savigny (1779 – 1861) was a German legal philosopher who believed a nation’s legal system arises from the volksgeist or national spirit of a people, that is, law is determined by the unique character of a nation. Or, as put by the American legal philosopher Oliver Wendell Holmes, Jr. (1841 – 1935):

“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 a book of mathematics.”

Common Law is a term used to mean judge made law, law developed through the courts, not the legislature or an executive such as a king.

America’s common law in the years before the Revolution of 1776 arose as an effort by American judges, lawyers and juries to curb the abuses of King George, III, and the British Parliament. The 1735 case of John Peter Zenger (1697 – 1746), a New York printer who published articles about the king and parliament, illustrates the national spirit of the Colonies. Zenger was charged by the Crown with seditious libel but a jury refused to find him guilty because what he published was true.

This American spirit of rebellion permeated the Declaration of Independence and is enshrined in our Constitution that was designed to keep government power in check and protect individual citizens.

Our volksgeist is our sense of a distrust of centralized power and the preservation of individual civil rights. America and her judges need constant reminders of where we came from and who we are. That’s what I plan to both study and teach.

Common Law Is Common Sense

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The American Volksgeist

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