Common Law – A short introduction

Wikipedia provides a good overview of what Common Law is all about

Common law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch.[1]

A “common law system” is a legal system that gives great precedential weight to common law,[2] on the principle that it is unfair to treat similar facts differently on different occasions.[3] The body of precedent is called “common law” and it binds future decisions. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a “matter of first impression“), judges have the authority and duty to make law by creating precedent.[4] Thereafter, the new decision becomes precedent, and will bind future courts. (See below here and here for contrasting systems.)

Now some people may want to believe that Common Law is somehow similar to Natural Law and that Natural Law can somehow be traced back to some form of a deity or deities but such principles cannot form the foundation for our Judicial system.

Although natural law is often conflated with common law, the two are distinct in that natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature, while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of judicial recognition or articulation.

As I had pointed out, at the Federal Level, there is no common law

Before 1938, the federal courts, like almost all other common law courts, decided the law on any issue where the relevant legislature (either the U.S. Congress or state legislature, depending on the issue), had not acted, by looking to courts in the same system, that is, other federal courts, even on issues of state law, and even where there was no express grant of authority from Congress or the Constitution.

In 1938, the U.S. Supreme Court in Erie Railroad Co. v. Tompkins304 U.S. 64, 78 (1938), overruled earlier precedent,[77] and held “There is no federal general common law,” thus confining the federal courts to act only as interpreters of law originating elsewhere.

It is also a common principle that where legislation exists, it will override the common law, which is merely a set of precedents formed over time. In other words, in case of the Federal and State Grand Jury, the ‘common law’ principles have been replaced by statutes which define how such a Grand Jury is to be convened and who convenes such Grand Jury.

As such, the belief that a group of citizens can form a ‘Common Law Grand Jury’ and have any legal status within our Nation is poorly developed and contrary to the laws of our Nation.

It’s simple logic that the musings of a club or group of like minded people has no legal relevance.

“The individuals who have made this presentment were not convened by [the U.S. COURT FOR THE DISTRICT OF COLUMBIA] to sit as a grand jury nor have they been selected at random from a fair cross section of this district.

Any self-styled indictment or presentment issued by such a group has no force under the Constitution or laws of the United States.

As such, leave to file this present is hereby DENIED.

Signed by Judge Royce Lamberth
Tuesday, 2 July 2009

See also here

… grand juries are convened by the court for the district in which they sit. See FED. R. CRIM. P. 6( a)( 1). Grand jurors are also to be selected at random from a fair cross section of the district in which they are convened. 18 U.S.C. § 1861. The individuals who have made this presentment were not convened by this Court to sit as a grand jury nor have they been selected at random from a fair cross section of this district.

Now, one can disagree with the law and accuse the judges of being criminals for failing to accept one’s arguments, but such a position is not going to be one of much relevance.

Stomp your feet, throw a tantrum and hope that the judge will listen… Really….?