Cameron Miranda
Common law is a collection of judge-made rules, definitions, and requirements that have accumulated over the years to form a working body of law. Common law offences are crimes that are not specified in the statutory law of a state but are instead defined by prior judicial decisions. The criminal law of England and the United States derives from traditional English common law, which has its origins in the judicial decisions embodied in reports of decided cases. While some U.S. states have abolished common law crimes, others continue to recognize them. This has led to variations in the definition of crimes, with some states defining crimes mostly or entirely by common law.
| Characteristics | Values |
|---|---|
| Definition | The collection of judge-made rules, tests, definitions, and requirements which have accumulated over the years to form a working body of law |
| Location | Common law is practiced in most English-speaking countries, including England, the United States, India, New Zealand, and some states in the US |
| Crimes | Murder, Robbery, Manslaughter, Rape, Sodomy, Larceny, Arson, Mayhem, Burglary, Assault, Battery, False Imprisonment, Perjury, Intimidation of Jurors, Contempt of Court, Offences tried by Courts Martial |
| Defences | Failure of Proof, Mistakes, Self-Defence, Defence of Property, Defence of Others, Insanity |
| Elements of Crime | Actus Reus (the action must be voluntary), Mens Rea (the mental state), Causation (the action caused the outcome) |
| Penalties | Unlimited fines, unlimited imprisonment |
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What You'll Learn
Common law offences vary across jurisdictions
In England and Wales, there has been a move towards abolishing common law offences and replacing them with offences defined by statute, as common law offences are considered too vague and open to interpretation. However, this process is yet to be completed, so some common law offences remain. Similarly, in India, criminal codes are based on English common law, but other Commonwealth countries have enacted criminal codes that depart from English common law.
The variations in common law across jurisdictions can be attributed to the nature of common law itself, which is a collection of judge-made rules, tests, definitions, and requirements that have evolved over time. As a result, different districts or jurisdictions may have different rules, names, or definitions for the same term, leading to inconsistencies in the application of common law.
While there have been efforts to standardise and codify criminal law, the process is ongoing, and the specific crimes that fall under common law can differ depending on the jurisdiction. Therefore, it is essential to refer to the specific laws and legal precedents within a particular jurisdiction to understand the exact common law offences that are recognised and enforced.
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Common law crimes that have been abolished
Common law is a collection of judge-made rules, definitions, and requirements that have accumulated over the years to form a body of law. While common law crimes still exist in some jurisdictions, many have been abolished or codified into statutory offences.
In New Zealand, for example, the Criminal Code Act of 1893 abolished the ability to be prosecuted at common law for being a party to a criminal offence. This was affirmed by the Crimes Act of 1908 and the Crimes Act of 1961, which maintained the abolition of criminal proceedings at common law, except for contempt of court and offences tried by courts-martial.
Similarly, in the United States, the Supreme Court ruled in United States v. Hudson and Goodwin (1812) that common law offences could not be enforced in federal courts. However, this ruling has not always been strictly followed, as evidenced by the case of Anne Royall, who was found guilty of being a common scold in Washington, D.C., in 1829.
At the state level in the US, the situation varies. Some states, like New Jersey, have abolished common law crimes, while others continue to recognize them. In states that still recognize common law crimes, the elements of many crimes are defined entirely or mostly by common law precedent. For instance, in Michigan, the penalties for murder are defined by statute, but the actual elements of murder are set out in case law.
In England and Wales, there has been a move towards abolishing common law offences and replacing them with offences defined by statute. This is due to the perception that common law offences are too vague and open to interpretation by courts, which could potentially violate the principle of certainty. However, this process of codification is still ongoing, and some common law offences remain in place.
Some common law offences that have been abolished or redefined as statutory offences include defamatory libel, obstruction of justice, and disabling in order to commit an indictable offence.
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Defences against criminal prosecution
Defences in criminal law cases are essential for protecting individual rights and ensuring justice within the legal system. They allow defendants to present reasons for their actions, potentially absolving them from criminal liability.
One of the four major defences is insanity, which argues that a defendant did not understand the nature of their actions or could not control their behaviour. This is often used in serious crimes, such as murder. Intoxication can also be a defence, either involuntary or voluntary, as it can prevent a defendant from understanding right from wrong.
Self-defence is another commonly recognised defence. This defence argues that a defendant was acting to protect themselves or others. To use this defence, a person must prove they were in danger and their actions were necessary. The context surrounding self-defence claims is important, including the social background of those involved and the setting of the incident.
A defendant may also argue that no crime occurred due to consent. For example, in a sexual intercourse case, a defendant may argue that there was consent, and therefore no rape.
A criminal defendant can also assert the defence of abandonment/withdrawal if they initially intended to commit a crime but later changed their mind and withdrew from participation. Additionally, they may argue entrapment, where the government induced them to commit a crime and then attempted to punish them for it.
It is important to note that defences may vary based on jurisdiction, and the burden of proof often lies with the defendant when presenting a defence.
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Common law felonies and misdemeanours
Common law is a collection of judge-made rules, definitions, and requirements that have accumulated over the years to form a working body of law. Under this system, each jurisdiction can interpret and apply the law differently, which can lead to some confusion. Common law offences are generally separated into four categories: felonies, misdemeanours, inchoate offences, and strict liability offences.
There were nine major common law felonies: murder, robbery, manslaughter, rape, sodomy, larceny, arson, mayhem, and burglary. Each of these crimes must meet certain criteria to be considered a felony. The first element, known as actus reus, is the voluntary action taken by the individual. The second element is mens rea, which refers to the individual's intention or knowledge of the act. The third element is causation, which means that the defendant's actions must have directly led to the harmful outcome.
Misdemeanours are less serious crimes that are still punishable by law. Examples of misdemeanours include assault, battery, false imprisonment, perjury, and intimidation of jurors. While the specific definitions of these crimes may vary by jurisdiction, they generally involve unlawful behaviour that disrupts public order or causes harm to others.
In some jurisdictions, common law crimes have been abolished or replaced by statutory offences. For example, in New Zealand, the ability to be prosecuted for a common law offence was abolished by the Criminal Code Act 1893. Similarly, in England and Wales, there have been efforts to abolish common law offences and replace them with precisely defined statutory offences. However, the process is not yet complete, and some common law offences may still be punishable by unlimited fines and imprisonment.
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Common law vs. statutory law
Common law, also known as case law or precedent, refers to the legal principles that have been established by past court decisions. It is a system of law that has evolved over centuries and is based on previous court rulings and judicial interpretations. Common law is often contrasted with statutory law, which is the written law created by legislative bodies.
Common law offences are those that are derived from the traditional English common law of crimes and have their origins in the judicial decisions of past cases. At common law, there were nine major felonies: murder, robbery, manslaughter, rape, sodomy, larceny, arson, mayhem, and burglary. In addition, there were various misdemeanours, such as assault, battery, false imprisonment, perjury, and intimidation of jurors.
However, common law has faced criticism for being unacceptably vague and open to interpretation by courts, which may conflict with the principle of certainty. As a result, there have been efforts to abolish common law crimes and replace them with offences precisely defined by statute. For example, in New Zealand, the ability to be prosecuted for being a party to a common law offence was abolished in 1893. Similarly, in England and Wales, the Law Commission aimed to abolish all remaining common law offences and replace them with statutory offences, although this process has not been completed.
In contrast, statutory law, or statute law, refers to the written laws created and enacted by a legislative body. These laws are typically codified in a centralised body of legislation, such as a constitution or a set of criminal and civil codes. Statutory law provides clear and precise definitions of offences, specifying the elements of the crime and the associated penalties. For instance, while murder is not defined in English law, the penalties for murder in Michigan are laid out in statute.
While common law relies on judicial precedent, statutory law is based on the written word of a statute. Statutory law is often seen as more certain and predictable, as it provides clear rules that are consistently applied. On the other hand, common law is more flexible and can adapt to changing social norms and values through judicial interpretation.
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Frequently asked questions
Common law crimes are a collection of judge-made rules, tests, definitions, and requirements that form a working body of law. Common law crimes are not defined by legislation but by prior judicial decisions.
Common law crimes include nine major felonies: Murder, Robbery, Manslaughter, Rape, Sodomy, Larceny, Arson, Mayhem, and Burglary. There are also various misdemeanours, including assault, battery, false imprisonment, perjury, and intimidation of jurors.
There are several elements to a common law crime. The first is the actus reus, or the voluntary action taken by the individual. The second is mens rea, or the intention to commit the crime. The third is causation, which means the action of the defendant must have clearly caused the outcome.
Common law crimes are recognised in some US states, England, Wales, and some Commonwealth countries such as India. However, common law crimes have been abolished in some states and countries, such as New Zealand and New Jersey.
