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Criticism of the Common Law (Read 8418 times)
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Criticism of the Common Law
Jun 3rd, 2010 at 1:08am
 
The common law strictly requires procedural adherence to it while worrying little about substantive issues that are being contested. It is said of the common law that ignorance of it is no excuse, which is true, however, knowledge of it often is. It is a system where a criminal can literally get away with murder via perjury or through technical interpretations of it. Under common law, the technically "innocent" often go free, while the morally innocent are frequently and severely punished. So harsh is the common law, that the jury system was developed to counter the law's tyranny.  When the Seventh Amendment of the U.S.  Constitution was drafted, it paid particular attention to allowing jury trials for civil disputes over $20 for suits at common law.  And, the Amendment forbids judicial review of facts ascertained by juries.  The Seventh Amendment is a strong pointer to Americans that the common law is putrid, but the import of this purpose for the Amendment is lost on most scholars of American jurisprudence today.

http://xeeatwelve.net/articles/common_law.htm

Ostensibly, the common law is based upon the principal that when things happen repeatedly, they ought to have a consistent treatment.  It provides for remedies for legal wrongs.  That is, if a person steals a loaf of bread, under common law, the owner of that bread should have a remedy against the thief.  Likewise, the state should have a punishment that it can mete out for the wrong.  Over time, and over case after case, a body of law developed to compensate the victim and punish the thief.  This is the common law.

The common law has some very noticeable problems.  First, it is slow to evolve, so it is cumbersome and difficult to change.  Second, it is complex and mysterious.  Third, it encourages perjury and discourages honesty.  Forth, it is strict and unwavering.  It is said of the common law that ignorance of it is no excuse, which is true, however, knowledge of it often is.  Under common law, the technically "innocent" often go free, while the morally innocent are frequently and severely punished.  The common law strictly requires procedural adherence to it while worrying little about substantive issues that are being contested.

There is no room for common sense in the common law.  For example, if a merchant has a caravan parked on the county line, and a thief purloins bread from that carriage, it could be that the thief would get away just because nobody could prove from which county the bread was stolen!  In another area of the law, a person could be deprived of the benefit of a contract because of a strict, common law reading of an agreement, regardless of how unconscionable the strict interpretation of the "agreement" was.  This is the common law.

In the study of many legal systems, I have never uncovered one so stark and strict as the common law, which cares so little for the spirit of the law and so much for the letter of it.  In essence, the common law is a god unto itself that demands its tithes and must be obeyed.  It is painfully slow and unfair by design to extract maximal suffering.  It is a system where a criminal can literally get away with murder via perjury or through technical interpretations of it.  In short, the common law knows not justice it is evil.

In an ironic twist of fate, people turned to the ecclesiastical courts for mercy from the harshness of the common law.  It should be remembered that the clergy was responsible for the inquisitions, so mercy and fairness were not a given in their chambers.  However, the ecclesiastical courts developed several doctrines which are today lumped into the category of equity.  In equity, the chancellor could use common sense and award proper relief for those who could have no justice under the common law.  However, equity is subject to the whims of whoever occupies the bench, and many jurists can be quite cavalier in their rulings.  It often happens that the "equitable" remedy for the common law is much worse than the original ailment.

So harsh is the common law, that the jury system was developed to counter the law's tyranny.  When the Seventh Amendment of the U.S.  Constitution was drafted, it paid particular attention to allowing jury trials for civil disputes over $20 for suits at common law.  And, the Amendment forbids judicial review of facts ascertained by juries.  The Seventh Amendment is a strong pointer to Americans that the common law is putrid, but the import of this purpose for the Amendment is lost on most scholars of American jurisprudence today.

Copyright 2003 by Steffan Stanford

All materials on this page are copyrighted. People are allowed to post any of these articles elsewhere provided they are posted in their entirety with acknowledgment given to the authors and xeeatwelve.net and include notification of the copyright. However, if someone wishes to post a partial article, they are allowed to do so only if they provide a hyperlink to the original article on xeeatwelve.net and give acknowledgment to the authors and notification of the copyright.
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zurich_allan
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Re: Criticism of the Common Law
Reply #1 - Jun 3rd, 2010 at 8:28am
 
And your point is?

My observations are - firstly this is referring to the US, and so not hugely relevant unless you are drawing comparisons with Scots Law for some particular reason. Secondly, it displays a breathtaking ignorance of the common law whilst preaching as fact a number of the utterly biased points that are raised, I could rebut with much better evidence and reasoning many of the complaints raised.
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Liberty Scotland
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Re: Criticism of the Common Law
Reply #2 - Aug 23rd, 2010 at 1:47am
 
Hi P,

I agree with parts of the article - IMHO there are many problems with the 'common law' ...

But, before getting into a discussion about it ...  I would first like to state the following:

1. The common law is the law. QED.

2. Parliamentary Sovereignty was a creation of the common law.

3. Stare decisis or the doctine of precedent was a creation of the common law.

4. The creation of the seniority of primary legislation is a creation of the common law. As such it can be overturned by the common law.

5. In relation to 4. The constitutional adherence to the primary of the constitution in America and Australia (to give two examples) is a creation of Judge made or the common law.

6. What came first the chicken or the egg.

I'm open to entering a discussion on the article posted ...

cheers,

Liberty Scotland.

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