Unlike the legal consolidation of the common law, some statutes replace the common law, for example to create a new cause of action that did not exist at common law or to legislate at common law. One example is wrongful homicide, which allows certain people, usually a spouse, child or estate, to bring an action for damages on behalf of the deceased. There is no such offence in English common law; [70] Therefore, any jurisdiction that does not have wrongful homicide legislation will not allow prosecution for the wrongful death of a loved one. If there is a wrongful killing law, compensation or other relief is limited to the remedy specified in the law (usually a cap on the amount of damages). Courts generally interpret laws that create new grounds of action narrowly—that is, limited to their exact wording—because courts generally recognize the legislature as superior in determining the scope of judicial law, unless such a law violates a provision of « second-order » constitutional law (cf. judicial activism). This principle applies more in areas of commercial law (contracts and otherwise) where predictability is relatively more important, and less so in areas of tort liability, where courts recognize greater responsibility for « justice ». [71] The common law is an unwritten set of rules based on precedent. In unusual cases, where the outcome cannot be determined on the basis of applicable statutes or written legislation, the common law guides the decision-making process. The common law, as it is used today in common law countries, contrasts with ius commune. While ius commune has historically become a safe point of reference in continental European legal systems, in England it was not a reference point at all.
[37] Louisiana`s criminal law is largely based on English common law. The administrative law of Louisiana is generally similar to the administrative law of the U.S. federal government and other U.S. states. Louisiana`s procedural law is generally the same as that of other U.S. states, which in turn is generally based on the federal rules of civil procedure of the United States. In England, judges have established a set of rules to deal with precedents. In the United States, parallel legal systems (awarding monetary damages, with cases heard by a jury at the request of a party) and justice (designing a remedy appropriate to the situation, including an injunction heard by a judge) survived well into the 20th century. U.S. federal courts separate procedural law and fairness: the same judges can hear both types of cases, but a particular case can only be on legal or equitable grounds, and the two types of cases are tried under different procedural rules.
This became problematic when a particular case required both monetary damages and an injunction. In 1937, the new Federal Code of Civil Procedure combined law and equity into a single form of action, civil action. Fed.R.Civ.P. 2. The distinction survives to the extent that matters that were « common law (as opposed to justice) » from 1791 (when the Seventh Amendment was passed) are still subject to each party`s right to request a jury, and « questions of justice » are decided by a judge. [109] Ghana has not abolished the common law system inherited from the British after independence and is now enshrined in the country`s 1992 constitution. Chapter Four of the Ghanaian Constitution, entitled « The Laws of Ghana », contains in Article 11(1) the list of laws applicable in the State. These include (a) the Constitution; (b) Decrees issued by or under the control of the Parliament established by the Constitution; (c) All orders, rules and regulations issued by a person or authority by virtue of a power conferred by the Constitution; (d) applicable law; and (e) the common law. [154] Thus, Ghana`s modern constitution, like previous constitutions, adopted English common law by enshrining it in its provisions. The doctrine of judicial primacy, based on the principle of stare decisis, as applied in England and other pure common law countries, also applies in Ghana. An admission law is a law passed when a former British colony becomes independent, by which the new nation adopts (i.e.
receives) the pre-independence common law, unless it is expressly rejected by the legislature or constitution of the new nation. Admission laws generally regard pre-independence English common law and the resulting precedent as standard law, as it is important to use a comprehensive and predictable law to regulate the conduct of citizens and businesses in a new state. All U.S. states, with the partial exception of Louisiana, have either passed admission laws or passed common law by court notice. [101] Solutions from cases involving interpretations and opinions institutionalized by public jurors and other judicial authorities define the common law. The purpose of the common law is also to standardize the way the courts deal with crimes and to create a standard of interpretation. In the United States, all states practice common law except Louisiana, whose courts also contain elements of the Civil Code of France and Spain. In a federal or state common law jurisdiction, the judge is an arbitrator with more leeway in judgments than in the civil justice system. Here, lawyers are responsible for presenting their client`s case to the judge and jury. For example, the job of a criminal lawyer is to hear witnesses in court and plead the innocence or guilt of the accused. According to Louisiana`s codified system, the Louisiana Civil Code, private law – that is, substantive law between private sector parties – is based on continental European legal principles with some common law influences. These principles ultimately derive from Roman law, conferred by French law and Spanish law, since the current territory of the state intersects with the territory of North America colonized by Spain and France.
Contrary to popular belief, the Louisiana Code is not directly derived from the Code Napoléon, as the latter was published in 1804, a year after the Louisiana Purchase.
