Thoughts on Common Law

[VetLegion]

Comparative law is the topic I'm spending time on lately.

Must say I've always been a fan of English Common Law, perhaps under
the influence of TV, but I'm not so sure lately. I've read Oliver Wendell
Holmes's "Common Law" and found it both a difficult read and underwhelming.

Law is always and everywhere twisted to suit the momentary needs of
the society (often: of the ruling part of the society) and in common law
I hoped to find more... dunno. Authenticity? Perhaps I was half-hoping
that "discovered law" is more "just" than other more top-down approaches.

Of course, given what we know about evolution, one should not expect
too much of legal systems. Yet, I can't help it.

Any other suggestions WRT literature? Thoughts? Who has the better
legal system, Anglo-Saxons or continental Europeans?

[notyoueither]

Twelve good men and true!

[Main_Brain]

Well (Western) European Law has three Bases: Roman Law, Church Law and Code Napoleon, how exactly did common law evolve?

[Zevico]

Judges were appointed by the British king to go around the country and make decisions and the law on his behalf. This occurred for many centuries.

Then a civil war occurred. Post 1701 judges were subject to Parliamentary control.

They still made law occasionally and on a case by case basis, but their laws were subject to being overridden by Parliament. They were beforehand as well, but the occassional stirring of absolute monarchists occasionally threw the matter in doubt. Post 1701, not so.

Eventually it became the rule that the courts had to follow decisions by courts higher up in the hierarchy. One judge was bound by three, three by five & etc. But they are bound only by precedents: if the judges can't agree on why an outcome of a case is reached (the reason) then there is no precedent to follow. If 2 of 3 agree on the outcome for the same reason, there is a precedent; if 3 of 5, the same. Etc.
--

That summary is still the situation today except that it is quite rare for judges to change the common law, particularly because they think it is the job of Parliament to change it.

There is nothing particularly advantageous in creating a whole system of law by attempting to adjudicate between two parties compared to the democratic method. Legislative change is far more preferable as it can take into account popular opinion (and policy developments) that judges simply can't for lack of time, resources and simply because they are judges and not politicians. Nowadays, creating new laws via the common law is a questionable exercise for this very reason. It should still exist, of course, but that's because some of the common law is actually uncertain (assignments of parts of equitable debts, if memory serves, is one such area). It would be better for the legislature to change it but it may not do so, and if a case comes up where the parties encounter a black hole (no clear answer) situation the court may be forced to give an answer. That is better than no law at all, but it is not better than the democratic emthod.

That said, the doctrine of precedent is important and beneficial. It applies not just to common law as a system of law, but also to the interpretation of legislation. It therefore creates certainty in interpretation.

[Bugs ****ing Bunny]

Law is always and everywhere twisted to suit the momentary needs of
the society (often: of the ruling part of the society) and in common law
I hoped to find more... dunno. Authenticity?

It's been around for centuries. When "authenticity" involves suffering not witches to live, or sticking arrows in people for being Welsh, it's an overrated concept.

[Bugs ****ing Bunny]

Well (Western) European Law has three Bases: Roman Law, Church Law and Code Napoleon, how exactly did common law evolve?

Largely by ignoring those three.

[Zevico]

Largely by ignoring those three.

I'm no expert but I've read that roman law and natural law are influences. Code Napoleon is probably not a major influence at all. The development of the common law largely preceded it.
Natural law makes sense as a possible influence, particularly because common law, once created (even today) has retrospective effect (leaving aside one recent English oddity, being either barclays bank v o'brien or royal bank of scotland v etridge. Can't recall which)--as if it were always the law, and the judges just happen to have announced it, rather than define it by their judgements.

Church law is not a major influence per se, but churchmen brought about (in a sense) the english rules and court of equity. They were the ancestors of equity if you will. so there is a degree of influence there.

When "authenticity" involves suffering not witches to live, or sticking arrows in people for being Welsh, it's an overrated concept.

Afaik the crime of witchcraft was known to ecclestiacal law (and its courts), and was made a felony by statute (and thereby heard as a "crime" in courts of common law). It was not a product of judge made law as such.

The common law, as originally conceived, wasn't daisies and sunshine, mind you.

Vet: try reading one of Maitland's essay on the origins of equity. Should be available free online. It also provides a bit of an overview of the common law as well.

In a sense equity is the product (and the greatest success) of the common law.

[Bugs ****ing Bunny]

*Note to self*

Never use flippant humour in threads about legal systems again. They won't understand.

[Zevico]

*Note to self*

Never use flippant humour in threads about legal systems again. They won't understand.

Flippant humour? Curse my literalism!