Quill and InkCommon Law

“The common law of England so far as it is not repugnant to, or in conflict with, the constitution or laws of the United States, or the constitution or laws of this state [is binding as long] as it is consistent with and adapted to the natural and physical conditions of this state and the necessities of the people hereof.” So reads 68-3-1 of Utah’s legal code, sealing centuries-old legal tradition to modern application of justice. Common law” denotes the way in which laws are generally interpreted and applied, and is based in court rulings and other legal decisions.  Section 2 of the same chapter reads that “The rule of the common law that a statute in [conflict with] the common law is to be strictly construed does not apply to the Utah Code.”

Example Sentence

Under common law, all citizens, including the highest-ranking officials of the government, are subject to the same set of laws, and the exercise of government power is limited by those laws.

Case Study

Common-law judges rely on their predecessors’ decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies.

Other Important Information

What this means is that the mere disagreement of a narrow reading of written law with common law does not entail the disregard of common law—i.e., legal tradition that must also be taken into account.  The law is and should be predicated upon fairness.  Justice cannot be blind if the same laws do not engender similar treatment of people in similar situations.  Just as a parent wouldn’t (or shouldn’t) dole out punishments and rewards to their children unequally, so the law must be applied equally. For example, 76-5-207.5(1)(d) defines “negligence” as “the failure to exercise that degree of care that reasonable and prudent persons exercise under like or similar circumstances;” yet, in this definition, there is still a great deal of ambiguity.  What constitutes “reasonable” and “prudent” in certain contexts may depend on any number of factors, all of which may be weight differently.  Hence, to see that they are dealt with similarly, lawyers look at prior court cases to find out how similar cases have been treated and support their client’s claim based on favorable judgments for those who faced comparable problems.

Image “Quill and Ink well at the State House” copyright by Kathleen Tyler Conklin.

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