Our Common Law Tradition


Fundamentals of Criminal Law

Adam J. McKee, Ph.D.

Jack Brown Ph.D.


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Our Common Law Tradition

Recall from history that what would later become the United States was first colonized by England.  Those early settlers brought with them the English system of laws. Prior to the modern era, England had a system of laws that were established after the Battle of Hastings that unified the country under one crown.  Thus, the laws became common to all of England.   This system of laws held the decisions of judges in very high regard, and the doctrine of precedence, known by the Latin legal phrase stare decisis, was a keystone of the legal process.  The doctrine of precedence dictated that once a judge stated the law in a particular set of circumstances, then the court would follow that rule in all subsequent cases under those similar circumstances.  As literacy became more widespread during the Enlightenment, the statements of the law made by judges were recorded in books called reports.

A major problem with this system was its lack of clarity and organization.  In 1776, Sir William Blackstone published his four-volume treatise on the common law which was called Commentaries on the Laws of England.  The Commentaries proved to be a valuable resource for the independent American States as they transitioned from the common law system of criminal laws to penal codes developed by legislatures.   Thus, while the modern criminal law in the United States is primarily a matter of statute today, those statutes retain much of the old Common Law. The vast majority of States retained the doctrine of precedence, which still regulates how the courts operate. For this reason, a complete understanding of the criminal law requires researching both codes and cases. Modern annotated codes provide references to the applicable case law, making the process relatively painless for lawyers, students, and criminal justice professionals trying to find the law.  

Model Penal Code

The organic growth of the common law over many years meant that it was complex and lacking in uniformity.  The scholars and lawyers of the American Law Institute began an ambitious program to devise a model code that would simplify, organize, and clarify the criminal law in the United States.  The result was a document that brilliantly accomplished this objective, known as the Model Penal Code (MPC). You will see many references to the MPC throughout this text.

https://www.ali.org/publications/show/model-penal-code/

  


Section 1.1 Key Terms

Crime, Felony, Malum In Se, Malum Prohibitum, Misdemeanor, Model Penal Code, Nolo Contendere, Ordinance, Procedural Law, Rule of Law, Statute, Substantive Criminal Law, Tort, Violation


References and Resources

Theories of Criminal Law.  (2013). Stanford Encyclopedia of Philosophy.  

Available:  https://plato.stanford.edu/entries/criminal-law/

The Common Law and Civil Law Traditions.  The Robbins Religious and Civil Law Collection, School of Law (Boalt Hall), University of California at Berkeley.

Available:  https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html

Modification History

File Created:  07/12/2018

Last Modified:  07/12/2018

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License


 

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