Scottish common law covers matters such as murder and theft and has sources in common law, doctrine and previous court decisions. The legal writings used are called institutional texts and date for the most part from the 17th, 18th and 19th centuries. Examples include Craig, Jus Feudale (1655) and Stair, The Institutions of the Law of Scotland (1681). The common law includes both substantive rules, such as the offence of murder, and procedural rules, such as rules of judicial procedure, which flow from the inherent jurisdiction of the court. In a common law jurisdiction, several steps of research and analysis are required to determine “what the law is” in a given situation. [53] First, the facts must be established. Then you need to find all the relevant laws and cases. Next, it is necessary to extract the principles, analogies and statements of the various courts, which they consider important, in order to determine how the next court is capable of ruling on the facts of the present case. Subsequent decisions and decisions of higher courts or legislators carry more weight than previous and lower court cases. [54] Finally, it incorporates all the lines drawn and the reasons given and determines “what the law is”. Then you apply that law to the facts.

The next authoritative historical treatise on the common law was Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765-1769. The most important sources for the history of common law in the Middle Ages are advocacy scrolls and directories. The Advocacy Rolls, which were the official court records of the Common Pleas and King`s Bench courts, were written in Latin. The scrolls were assembled in packages according to the legal terms: Hilary, Easter, Trinity and Michaelmas or winter, spring, summer and autumn. They are currently deposited in the British National Archives, with whose permission images of the Common Plea Court Scrolls, King`s Bench and Exchequer of Pleas from the 13th to 17th Centuries can be viewed online at the Anglo-American Legal Tradition website (The O`Quinn Law Library at the University of Houston Law Center). [82] [83] The reality from the modern perspective can be seen in practice: under the old “old unwritten universal custom”, (a) the courts could not logically diverge (but did), (b) a new decision that logically had to operate retroactively (but did not), and (c) there was no standard for deciding which English medieval customs should be “law” and which should not. The three tensions are resolved according to the modern view: (a) the common law may differ from country to country, (b) new decisions may (but need not apply) retroactively,[48] and (c) court decisions take effect immediately when they are made, not years later or after they have become “habitual”, and questions about what was “custom” in an “old” era, are simply irrelevant. [8] Unlike the legal codification of the common law, some statutes prevail over 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] If a tort is rooted in the common law, all damages traditionally recognized for that tort may be prosecuted, whether or not those damages are mentioned in the applicable law. For example, a person who suffers bodily injury as a result of another person`s negligence may sue for medical expenses, pain, suffering, loss of earnings or earning capacity, psychological and/or emotional distress, loss of quality of life, disfigurement, etc. These damages do not need to be set by statute because they already exist in the common law tradition. However, without an unlawful death law, most of them expire upon death. Common law rules may be replaced or replaced by statutes that are said to “prevail” or take precedence over the common law. Theft offences, for example, based on the former common law offence of theft, are now governed by the statutes of 1968, 1978, etc.; And the original sentences for murder (but not the crime itself) were replaced by laws such as the Homicide Act 1957. Several decades after independence, English law still exerted an influence on American common law – for example with Byrne v Boadle (1863), who applied the res ipsa loquitur doctrine for the first time. Ghana follows the tradition of English common law,[148] inherited from the British during its colonization. Therefore, Ghana`s laws are largely a modified version of the imported law, which continually adapts to the country`s changing socio-economic and political realities.

[149] The Bond of 1844[150] marked the period when the people of Ghana (then Gold Coast) ceded their independence to the British[151] and gave authority to British justice. Later, the Supreme Court Order of 1876 formally introduced British law, whether common law or statutory law, to the Gold Coast. [152] Section 14[153] of the Regulations formalized the application of the common law tradition in the country. The English Court of Common Pleas dealt with disputes in which the monarch had no interest, that is, between citizens. Examples of common law superseded by a codified statute or rule in the United States include criminal law (since 1812,[68] U.S. federal courts and most, but not all, states have held that criminal law must be enshrined in law if the public is to be fairly informed), commercial law (the Uniform Commercial Code in the early 1960s) and procedures (the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s).