Most Americans, it seems, probably do not understand how the common law works.
You grow up in this country and all you usually remember about politics is that there are 3 branches of government. You get the idea that Congress passes laws, and the Judiciary simply enforces those laws... Then, when you go to law school, you realize that this is only half the picture, if that.
The law is comprised of both statutes (laws passed by the legislature) and common law. To explain what the common law is, we have to go back to William the Conqueror and the invasion of England by the Normans...
At that time, England did not have a unified system of courts. They did have courts, but they were run very differently in different locales, and were usually somewhat susceptible to corruption. They were not particularly objective or "rule-based," so they were probably less than satisfactory in the minds of the citizenry.
Well, into this judicial hodgepodge comes William the Conqueror. He brutally conquered the country and ruthlessly consolidated his rule, yet still had trouble in certain areas. He realized that he needed to create incentives for people to go along with the new government, and one way he came upon to do this was to establish a new set of courts, the Royal Courts. (By the way, this is why much legal jargon comes from Old French.)
These courts had very limited jurisdiction, but to simplify a bit, they began to hear a limited number of cases of direct and indirect trespass, which could have been trespass upon land or upon another person (as in battery). This expanded slowly, and eventually there was a system of courts which adjudicated cases based not only upon statutes (although they were required to follow them), but also upon precedent and general principles of justice.
This continues to this day. Courts create the law when they decide cases, because lower courts are bound to follow appellate or supreme court rulings. This legal precedent can be overridden by statutes passed by the legislature, but courts are still free to interpret these statutes as narrowly or broadly as they deem fitting (although they usually follow certain standards of "statutory construction," meaning statutory interpretation).
Courts also may take into account abstract principles, ethics, morals, the concept of justice, and even precedent outside our judicial system. In fact, since the common law system began in England, countries colonized by England considered the English cases as valid precedent, and still do. I have read cases from the 1800's wherein the judge cites Roman law as the rationale for his holdings. This is rare, of course, but not unheard of.
There are large areas of law still only covered by common law, not by statutes. Sometimes statutes overriding common law are later repealed because they cause problems the common law avoided.
But the most important thing to realize about all this is that the law as stated by the legislature is not really something you can rely on without an understanding of how courts will view it. The real law is the collection of decisions by the courts interpreting a statute, or stating the common law rules, because these are what dictate future decisions.
So how do we know what the law really is then, if we have to look to multiple cases to formulate a complete picture? Some lawyers in the ALI (American Legal Institute) decided to ameliorate this problem by restating the law as created by precedent in "The Restatements." How reliable the restatements are as a matter of law is a much more detailed discussion, but suffice it to say that they are a pretty good guide as to the general rules of law. Not that they're easy to read... ;) We've just spent about a month talking about §71, §90, and §86 of The Restatement (Second) of Contracts, about 1 page of text in total. ;)
I think the Restatement is dangerous in the sense that it is so respected, often, it takes precedent over ACTUAL precedent... for example in our property class, we had a case where, in emminent domain, the holder of a fee determinable subject to a condition subsequent gets all of the gov. money, not the holder of reversion (this was for use of land for a park, and if it ceased to be a park, it went back). Well, the court, because the Restatement simply said that case precedent was not fair, decided to instead split up the money between the possesor and the person with the right of reverter. Crazy huh? And don't get me started on cases that were based on semantics of Restatements that later, in the Second Restatement, were eliminated, meaning that the ALI deamed language, that decided a case, was not right, and if it was all done again, that language being absent, the case would have ended different.
*sigh*
Paul Banks
Mmm. I think I know the case you're referring to. It was Lott park or something...
The Restatements are a very strange thing. Some of them have been enacted as law, and some have not but hold great sway with judges. I would rather believe that the Restatements evolve to describe judges' opinions than the other way around, but it's a two-way street, really. It seems like they're followed much more in contract law than in torts. I really don't know how the Restatement is considered in property law.
But, much of the influence of the Restatements comes from their appeal to reason... It is amazing though how much influence a bunch of lawyers can gain just by doing the work necessary to restate the law in a quasi-readable fashion.
By the way, I'm sure you just were writing off the cuff, but just to be rigorous since I'm learning this stuff myself, a "fee simple determinable" leaves a "possibility of reverter" in the grantor, while a "fee simple subject to condition subsequent" leaves him a "right of entry"... There would not be a "reversion" since there was a condition involved rather than just a duration, as in a life estate...
Posted by: Trevor Hill at September 24, 2003 09:38 AM
Yeah; I was just blowing through the post and did not write it 100% correct, however, if the land is not converted, and the person has either a reversionary interest or a right of reentry, if it is uncontested or pretty obvious, there is no difference in the end result if he wants it. But yeah, your vocab was right... too bad the end of that section tells you that all those terms are void and not used anymore. ;)
Later,
Paul
Posted by: Paul Banks at September 24, 2003 10:14 AM
Thank you.
I have been looking everywhere for a concept at Common Law about my rights to care for my mother under the issue that I hold our family name, and she chose the family name.
She wrote a contract with me for a narrow area. That is to take what ever legal legal action I need or any business transaction that will insure that she can remain in her home of 35 years until she dies.
I believe the Illinois law defines our constitutional right to write the contract, and my right to follow it. But the concept of my family right under Common Law would seem to give it a more accurate interpretation. .
Currently mom has a bank as a legal gurdian of her estate, because she was judged incompetent. But I can show they are not going to protect her wishes to remain in her home. So I intend to take action and invoke the rights of our contract. They will argue that probate court has the control. I will argue the contract can not be voided, because the Illinois Constitution seems to provide that no law can be written which takes away our rights to write and use that contract. This should have precedent over the probate court temporal action.
Thank you
Dr. Ronald W. Cutburth
DrCutburth@cs.com
Posted by: Dr. Ronald W. Cutburth at December 28, 2003 12:44 PM
Dr. Cutberth --
I am not a lawyer, so firstly, please don't take any of my statements as legal advice.
I think you should be clear on one thing though -- just because you have the freedom to contract does not mean that laws can't be passed to limit that freedom in various ways.
There are many things you can't contract for, especially illegal acts. You can't create unconscionable contracts or contracts with minors...
There are also many laws that limit and regulate contracts, and their interaction with the law of wills and testaments may be complex.
So you really need to talk to a lawyer, and that lawyer really needs to know the Illinois law in order to be able to reliably deduce what your legal situation is.
Good luck. :)
Posted by: Trevor Hill at December 31, 2003 04:10 PM
Posted by: Paul Banks at September 24, 2003 09:20 AM