U.S. law based on English Common Law

By: GENE VITAMANTI - For The Californian | Sunday, December 30, 2007 7:44 PM PST ∞

A major misconception many Americans have about our history is from whence American law was derived. Many people think that it is derived from the Judeo-Christian Bible. In actuality, American law is a carryover from our colonial days when we were ruled by English Common Law. We broke away from England but continued using that law system, which had been developed and continuously refined for over a thousand years. The Catholic Encyclopedia agrees with this assessment.

A basic axiom to remember is that in the history of the world, as people from different cultures mingle through trade, travel, immigration or war, we pick up pieces of other peoples' culture and religions and incorporate them in our own culture. This evolutionary process is so slow that it is barely noticeable.

Israeli law and religion was derived to some extent from the Egyptians, Babylonians and Assyrians.

Common law is that which is based on custom and usage of the common people as opposed to law imposed from above by a higher source, such as a monarch, dictator or religious leader. It is a slow process that is always adjusting itself to the times.

Our U.S. Constitution sets up an organization for our government and guarantees certain rights to our states and individual rights for our people. In the application of our laws there is lots of wiggle space for our courts to maneuver. The courts must stay within the framework of the law, the precedence set by previous courts and must take into account the merits of each case before making a decision. This decision becomes part of the precedence.

Religion has affected our laws down through the years only in terms of custom and usage. Religions may have certain rules and regulations that are in effect within that religion but not on the rest of the community ---- our Constitution is very clear about this.

The word God does not appear in the Constitution and the word religion appears only once in the main body ---- Article 6, section 3 reads, " ...but no religious test shall ever be required as a qualification to any office or public trust under the United States." The First Amendment clearly establishes freedom to practice any religion you desire. Between these two and our history surrounding the writing of the Constitution, the Supreme Court has ruled that a wall of separation exists between church and state. But this continues to be challenged by some of the most conservative, but not all, religions.

Because we have a federated system, we live under two sets of law: state and federal. State courts manage cases that apply to state laws only and appeals may go up to the state Supreme Court only. When there is a conflict between the two, the federal laws usually take precedence and the federal courts assume jurisdiction. The last appeal can go to the federal Supreme Court, which has the final and ultimate say.

Interestingly, Louisiana is the only state which does not follow English Common Law. They basically follow the Napoleonic Code from the days when they were owned by a France ruled by Napoleon. It was sold to us by Napoleon as part of the Louisiana Purchase.

Gene Vitamanti is a freelance columnist who lives in Murrieta. E-mail genevit1@verizon.net.