Another example of foreign law used to decide US law

[kevin1]

Co. Goobernor says no to child brides

The state Court of Appeals ruled on June 15 that Colorado had no stated minimum age for common-law marriage but said the state has adopted English common law, which makes girls as young as 12 and boys as young as 14 eligible for marriage.

Is it really so hard for our legislators , who dream up laws whether we want them to or not , to just stick to crafting laws based entirely on US standards instead of foreign ones ? [:@]

[Canuck_Buck]

ORIGINAL: kevin1

Co. Goobernor says no to child brides

Is it really so hard for our legislators , who dream up laws whether we want them to or not , to just stick to crafting laws based entirely on US standards instead of foreign ones ? [:@]

I hear ya Kev, it's really stupid butwere they looking at adopting this old age English Common Law because they have nothing else ? I don't follow what happened.

[kevin1]

Briefly , when our colonists came to this country they brought with them the concepts of English Common Law to guide them since they were in fact British subjects . Over two centuries we kicked the Brits out twice and formed a culture of our own , and since our needs were different from those of our former sovereign we began to craft our own laws based largely on our Constitution . The purpose of this was to fully separate ourselves from both England and it's influence , yet now our courts and legislators are increasingly looking outside of those Constitutional guidlines for guidance . Why ? Has the document that has shaped this nation suddenly lost it's meaning ?

[Californiadoctor]

I think English Common Law is the Judiciary's fall back position when an issue is not directly addressed in the U.S. Constitution. I doubt the Constitution says anything about the appropriate age for marriage. What bothers me is not the place (England) where this law originated but the time (14'th century). While it may have been normal for 12 and 14 year olds to marry in Medivel times, it is irresponsible to allow it in our society.

Caldoc

[kevin1]

Exactly my point CDoc , why are we looking elsewhere for guidance ?
Are we not capable of enacting our own standards of conduct based upon our own beliefs and cultural mores ? If I were looking for moral guidance , which certainly applies to marital age , why the hell would I look to such a morally bankrupt place as Europe for the answer ? Hell , the French only just recently quit peeing in their own streets .

[shepdogwv]

our judicial system is based on english common law (where do you think the common law, in the common law marriage came from). While that is certainly too young to in today society to be married there's no reason to get all mad about it. The legislature probably had no previous reason to make a law regarding that, and if it's not regarded anywhere else such as the constitution there's not many options that the court has, since it's not allowed to make laws itself (despite what it does). A lot of how we do things in the US is originally based in English common law, property transfers etc. Just most things have been reestablished by some sort of law here, when the issue came up, as I'm sure this will be taken care of by the legislature now.

[kevin1]

I understand that Shep , my whole point is that we don't need ECL anymore , we're perfectly capable of deciding for ourselves what is appropriate for us based on our own standards , not someone else's .

[bergall]

I agree we should reject all things European in this regard. But in reading the article, it seems there was some sort of legal loophole whereby the legal age for recognition of a 'common-law' marriage was not defined in either the state constitution or in any legislation on record. It goes on to say that "THE STATE" has adopted English common law in defining legality in this area. To me, it seems the court just recognized the State's actions. I am not a lawyer so I do not know how heavily the old system of English Common Law is relied upon, but you can't tell me that there is no precedent in the 49 other states in the Union, where a minimum age for common law marriage is stated ? Are those Colorado Liberals so out of touch they won't even check for precedents in American law upon which to base a decision ?

[wayomic]

Was it stated directly as English Common Law?
And can we be sure they wrote it correctly?

Here is how I understand it.
Since they founding of this country, common law has been used for all legal decissions not directly addressed in regulation or statute.
Common law as it was know, and based on the system in use in the early 1600s (exact date ?), with all later additions to it to be used only as a guide and not set pricipal, was adopted by the framers of the Constitution as the basis of the legal system of this country where it did not contridict the Constitution, or where it was unaddressed by statute or regulation. Non-statutary (common) law is recognised in the US Constitution as essentially inviolatable (sp?) however that as customs and traditions change, must also change.

It makes the major portion of law in serveral contries, especillay those decended from British colonies. IN the US there are either statutary (sp?) laws and common laws. Specifically those areas not specifically addressed by statute. Most all laws in this contry until very recently except some few instances, or more recently the addition of certain criminalstatutes and others,were based on "common law", esapecially contract and tort laws.
It also refers to the use of legal precident,judiciary decisions, decisions of a higher court (asin, a higher courts decision sets precident for all lower courts under it)and the idea of "law common to a nation" as opposed to that of local or regional origin.

This is what they usually mean by the term "common law" or even "English common law". It does not nesc mean that it was based on an "English" law, but on the system of law that was derived from that common history.
(and most, maybe all,non-english European law is Civil Law, not common law based. Everything in the legal system is regulated and prescribed by statute and decided by the legislature. France for example. )


Think I got all of that down. Been a while since I spoke at length about it or had a book open to the subject.

[wayomic]

Went and checked myself online with a law dictionary,

Pretty close.
I missed that common law became the basic law of most statutes due to the Commentarieson the Law of England, circa 1769which became every American lawyers "bible" of study. (including all of those lawyers and educated folks who wrote the Constitution)
Common law is directly referenced in the Bill of Rights itself.
Thatmost statutes of modern law are based directly upon concepts from/in common law. Which is whytoday almost all common law has been directly inacted into statute with modern variations by all States except LA, which is still influenced by Napoleonic Code. The pricipals of common law are so basic thatin somestates theyare applied withoutreference to statute.