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Author Topic: Criticism of the Common Law  (Read 2256 times)

Osmantal

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Criticism of the Common Law
« on: June 02, 2010, 08:18:36 PM »
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

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Freak

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Re: Criticism of the Common Law
« Reply #1 on: June 03, 2010, 12:14:13 AM »
I'm a third year attorney. I've argued dozens of motions, aribtration hearings, tried 3 cases and argued 1 appeal. I've also lived in a developing country where the government is horribly corrupt - I could cite examples. Mr. Stanford is a hack and his arguments have no merit (google him). The American common law system works very well - I've seen it's results first hand and they're just - 1000x better than I see in the country I now live.
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mpedede

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Re: Criticism of the Common Law
« Reply #2 on: July 25, 2010, 03:11:00 PM »
Being part filipino kind of tells me that common law works good here in the states. If were in the phillippines, it works and doesnt work. Fear is tool that is used. Its crazy. Every election, someone gets killed. Last year, in one of the provinces, a govenor, who didn't want to let got of his seat, shot pretty much everyone who was associated with his oppenent. Journalists and women were killed. The evidence truck that was going to go to manila, was ambushed. THe judges live in fear as a result. Its not what you know, its who you know there. Last month a politician was killed by someone throwing a grenade in house in broad day light.

mpedede

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Re: Criticism of the Common Law
« Reply #3 on: July 25, 2010, 03:19:07 PM »
If someone steals my car, i am not going to be happy. If i don't turn it in to police, well it shows that i give everything away for free. If something happend to you, hustled you, or stole something from you what are you going to do?

mpedede

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Re: Criticism of the Common Law
« Reply #4 on: July 25, 2010, 03:33:33 PM »
you don't want pshyco paths living on the street. You want them in prison. Thats obvious. You don't want to have an abusive police force. For example, someone who drinks doesn't mean that they are a psychcopath,  they are just doing it to have a good time. If they are doing it to drown a problem thats one thing. But lets say, that you couldn't enjoy a good time. When marcos declared martial law, for while in the phillippines, everyone who wasn't working had to be in the house by a certain time or get punished. See that to me is not freedom.

mpedede

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Re: Criticism of the Common Law
« Reply #5 on: July 25, 2010, 03:39:33 PM »
don't rape murder or steal the basics. The judge is not person i would be worried about, its the prisonors that i would be worried about if got in trouble. The mind games that go on in there is crazy. I worked in jail before.