Common Law vs. Statutory Law

[socialize_me]

I'm very much opposed to judge-made law, or common law, as society cannot function on the whims of the judgement of one, three, or five unelected justices which are so subjective. However, didn't property rights arise from common law?? When should we have common law, or should we have it at ALL?? There's no Constitutionality for judicial precedent to become law, but it's been going on since Day 1.

I think the Supreme Court, the Courts of Appeals, etc. should all interpret the strict language of statutory law--even if it's something like the Patriot Act--because even though I'm glad some parts of the Patriot Act have been struck out as being unconstitutional by federal courts, the means don't justify the ends. What we get when we open the can of worms of the courts to strike down legislation is that it opens the door to the Supreme Court saying the 4th amendment isn't Constitutional, or that gun rights shouldn't be respected.

So, we've gotten a lot out of common law, but should it stop?? If you say it should continue, where do you draw the line at for common law to end??

[Scofield]

The three types of Law the Judiciary has Constitutional privileges to are: Common Law, Equity Law, and Admiralty Law

Statutory Law, as far as I can tell, is illegitimate.

[wizardwatson]

I'm very much opposed to judge-made law, or common law, as society cannot function on the whims of the judgement of one, three, or five unelected justices which are so subjective. However, didn't property rights arise from common law?? When should we have common law, or should we have it at ALL?? There's no Constitutionality for judicial precedent to become law, but it's been going on since Day 1.

I think the Supreme Court, the Courts of Appeals, etc. should all interpret the strict language of statutory law--even if it's something like the Patriot Act--because even though I'm glad some parts of the Patriot Act have been struck out as being unconstitutional by federal courts, the means don't justify the ends. What we get when we open the can of worms of the courts to strike down legislation is that it opens the door to the Supreme Court saying the 4th amendment isn't Constitutional, or that gun rights shouldn't be respected.

So, we've gotten a lot out of common law, but should it stop?? If you say it should continue, where do you draw the line at for common law to end??

You've got it backwards. We need more common law and less statutory law.

"Law" is supposed to be based in "Natural Law" which our judicial system attempts to approximate via the "Common Law" system.

"Statutory Law" grants special privileges to a certain party within a legal preceding that didn't exist before. If you get busted for a victimless crime, there was no victim.

So through the process of statutory law a victim known as the "government" is created, the rights of which you have violated.

Hence John Q. vs. the State of Alabama.

[mczerone]

I don't think I've ever agreed with any idea put forth by the OP.

The common law is the collected decisions of actual disputes throughout history, and those decisions are based on what the Judge in the case can determine the law to be: he doesn't create the law, but merely speaks it. If the party judged to be in the wrong feels the decision was unjust or just wrong, there has always been an appeal procedure, where more respected judges will 'second guess' the lower courts holding of what the law is, and if it was applied correctly.

The common law brings us civil remedies for tortious acts, for breaches of contracts, and for encroachments upon personal and property rights.

Statutory law brings us Criminal penalties devised by the state for such non-crimes as prostitution, practicing witch-craft, possessing plant material, or consensual sexual acts practiced in private. These laws are crafted by legislators that, while nominally representing the people, like to bow to special interests: moral or monetary, to use the law-making apparatus for their own ends without respect to individual's rights or the constitutionality of the laws.

I hope the OP is just the best troll ever, and wants to provoke an oppositional response; otherwise I can't find any issues where he'd agree with anything Ron Paul says.

[Scofield]

I ordered a book exactly about this issue, and I will report back after I have read it.

From what I've gathered from the reviews, it essentially says we have no reason to follow Statues (laws Congress passes) if we asses our rights via UCC 1-308 (formerly 1-207). The judicial system has no jurisdiction to hear cases dealing with "colorful laws" (Statutory laws), if you asses your rights.

Like I said, once I read it, I'll get back to you.

[socialize_me]

You've got it backwards. We need more common law and less statutory law.

"Law" is supposed to be based in "Natural Law" which our judicial system attempts to approximate via the "Common Law" system.

"Statutory Law" grants special privileges to a certain party within a legal preceding that didn't exist before. If you get busted for a victimless crime, there was no victim.

So through the process of statutory law a victim known as the "government" is created, the rights of which you have violated.

Hence John Q. vs. the State of Alabama.

Wow the way you paint common law with this utopian brush is rather disturbing...and a bunch of BS if you ask me. So "statutory law" is bad (why do we even have a legislative branch in the first place??), yet common law isn't. This is interesting because the only difference between common law and statutory law is the fact that ELECTED OFFICIALS decided to pass legislation on behalf of the PEOPLE in statutory law. With common law, you have someone who has been sitting on the bench for 36 years being essentially a legislative dictator.

It doesn't matter if law is determined statutorily or by common law in the courts, because in the end it is LAW. So you prefer the lawmakers to be unelected officials that serve lifetime terms...what's sad is that Hitler was a lifetime ruler, yet he was at least elected to that position. You're putting far too much faith into the justice system and banking on the fact that all judges aren't corrupt or subject to the same temptations that any other human being is.

Probably the dumbest logic I've heard in a long time. Common law = good because ONE person decided it to be law whereas Statutory law = bad because it took a majority of elected officials to determine it.

Dunno about you, but our system of government is a Republican system. I'm very troubled that you are convinced the Judicial branch should possess both legislative AND judicial powers. Every branch of government possesses a little of the other branches...the legislature does have the power to put public officials on trial for impeachment, but that's where it ends. YOU believe the judiciary should possess all legislative powers as it would need to in order to pursue your absolutist view of supporting common law. Disgusting.



The common law is the collected decisions of actual disputes throughout history, and those decisions are based on what the Judge in the case can determine the law to be: he doesn't create the law, but merely speaks it. If the party judged to be in the wrong feels the decision was unjust or just wrong, there has always been an appeal procedure, where more respected judges will 'second guess' the lower courts holding of what the law is, and if it was applied correctly.



Uhm...you should read some quotes by previous Supreme Court justices...you say common law is a "collection of decisions of actual disputes throughout history" and that they are "Based on what the Judge in the case determined the law to be", but you say he doesn't create law. Bullshit!! I can't remember the Supreme Court justice who said this, but he said a ruling by the judiciary that is further upheld as precedent eventually becomes just as lawful as statutory law. So the Judiciary doesn't simply "speak" law, but they write the fucking thing in their opinions!! Don't believe me?? Look at ALL cases ruled by the Supreme Court since Marbury vs. Madison. They determined what law is or isn't, and even went so far as to tell the lawmakers what law is. Funny since Thomas Jefferson is on record saying this:



"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

Don't bother disagreeing with me...my logic comes from Thomas Jefferson, a man who was studied to be a lawyer himself yet never practiced it for a profession.

Who the fuck are you?? Some 15 year old who thinks he has the whole world figured out?? Or are you a 35 year old stubborn-ass internet junkie obsessed with the idiocy of anarchism?? Yeah, unfortunately this forum has its fair share of your kind crawling around. You've found your nook, but you've never done anything outside of criticizing people online and calling them a "troll". Go get laid, seriously.

[Scofield]

Socialize_me, can you point me to the specific enumerated power Congress has which states they can create Law? When I say Law, I am talking about drug laws, prostitution laws, gun laws, education laws, blue laws, and so on and so forth.

Please and thank you.

[socialize_me]

Socialize_me, can you point me to the specific enumerated power Congress has which states they can create Law? When I say Law, I am talking about drug laws, prostitution laws, gun laws, education laws, blue laws, and so on and so forth.

Please and thank you.

Seriously, you guys do realize this is a Ron Paul message board, right? I mean, I'm not here to stir up trouble--just looking for answers and apparently the people who respond to my posts not only do so inconsiderately, but almost as if they are looking for a fight. Rather than explaining something, they have to resort to name calling like mczerone who is nothing more than a [Redacted by Mod].

Look, I'm here because I support Ron Paul's message. I don't believe we should have drug laws or education laws. I believe in the strict readings of the Constitution, but apparently these so-called geniuses like mczerone believe the Judiciary possesses extra-Constitutional powers--like creating law themselves that have the power of statutory laws. In fact, mczerone is so opposed to the Constitution that he recommends statutory law to be abolished and therefore the existence of a legislature is to be none at all.

The Constitution does say this in Article I (in fact, it's the first statement in Article I):

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

So the Legislature DOES have the ability to create law as it should. This statement clearly points out that only the Senate and the House have the power to legislate---meaning judges cannot legislate from the bench or the president from his bully-pulpit you [Redacted by Mod].

[slothman]

How come I always see conservitives decrying "activist"
judges but never liberals?

In any case I don't think judges should directly "make
their own" laws but they should interpret and check
the Constitional of them.
Congress isn't vary good at making legal laws.

[Scofield]

Seriously, you guys do realize this is a Ron Paul message board, right? I mean, I'm not here to stir up trouble--just looking for answers and apparently the people who respond to my posts not only do so inconsiderately, but almost as if they are looking for a fight. Rather than explaining something, they have to resort to name calling like mczerone who is nothing more than a [Redacted by Mod].

Look, I'm here because I support Ron Paul's message. I don't believe we should have drug laws or education laws. I believe in the strict readings of the Constitution, but apparently these so-called geniuses like mczerone believe the Judiciary possesses extra-Constitutional powers--like creating law themselves that have the power of statutory laws. In fact, mczerone is so opposed to the Constitution that he recommends statutory law to be abolished and therefore the existence of a legislature is to be none at all.

The Constitution does say this in Article I (in fact, it's the first statement in Article I):

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

So the Legislature DOES have the ability to create law as it should. This statement clearly points out that only the Senate and the House have the power to legislate---meaning judges cannot legislate from the bench or the president from his bully-pulpit you [Redacted by Mod].

If I sounded condescending in my post(s), I apologize. I am not trying to pick a fight with you, but I do admit my second post was kind of douche-y.

Also, Congress has the powers to make laws which correlate to the powers granted to them (17 enumerations and some other stuff about how how the Congress shall run..ie: members at what not), and most of those enumerations have nothing to do with the majority of the Statute laws Congress has passed in this country's history (mostly in the 20th and 21st centuries).

The judicial branch doesn't make law, they merely provide justice when an individual breaks a Common Law. Common Law is based off of property, so the Judicial branch was supposed to be in charge of being the third party when an individual violates another person's rights.

The judicial branch also has the power of jurisdiction over Equity and Admiralty law, with Equity being with contracts (these are civil cases, not criminal), and Admiralty dealing with the Law of the Sea. The Law of the Sea is the law of the King, much like the current Statutory Law we have in this country. It's not based around property, but the will of the government.

[demolama]

The English system did not have a written constitution. So most of what was found by common law was because there was no written law on the subject. Thus where stare decisis came into play.

The biggest problem we run into is that the United States and the states all have written constitutions and the concept of stare decisis is now used to supersede the written constitutions. Courts routinely uphold wrong court decisions over obvious usurpation of the Constitution.

What part of the Constitution gave the Supreme court final say in unconstitutional matters? They did ... And why do we believe they have that power.... stare decisis.

The other problem is now we view courts decisions as the end all to be all where as in the beginning the courts ruling had no way to be enforced and was nothing more than opinion.

[pacelli]

I hope the OP is just the best troll ever, and wants to provoke an oppositional response; otherwise I can't find any issues where he'd agree with anything Ron Paul says.

That's the whole point. Based on observational data, the model is:

1) Post an innocent question or issue, "Question about...", "Wondering if..."
2) Wait for rational responses.
3) Argue vehemently with any rational response.
4) Use as many of the following words as possible: "BS"/"bullshit", "idiot", "fucking stupid", "most stupid I've ever read", and "fucking kidding me!?".

It is clear to me that this individual has an axe to grind and is not interested in any answers or actual discussion.

[pacelli]

Who the fuck are you?? Some 15 year old who thinks he has the whole world figured out?? Or are you a 35 year old stubborn-ass internet junkie obsessed with the idiocy of anarchism?? Yeah, unfortunately this forum has its fair share of your kind crawling around. You've found your nook, but you've never done anything outside of criticizing people online and calling them a "troll". Go get laid, seriously.

Sorry, I forgot about this one. This fits the model as well.

5) Personally attack, criticize, and belittle people that take the time to reply. Be sure to fling a few insults that apply to you as well.

[mczerone]

As my person has been attacked, and not my argument, I shall only respond to say that I am currently in law school - so I do have some basis for an opinion, and I am married and thus the charge that I need to "get laid" is completely unfounded.

I stand by my statements that, in general, the common law is more liberty-friendly than legislative (statutory) law. And since you brought the case up, Marbury v. Madison explicitly shows why the court can change what laws the legislature passes: The court must view the Constitution as the superior law, and the legislative body has the power of Amendment if it seeks to change the Constitution. I do admit that this tends to give the Supreme Court judges a larger share of power in interpreting the Constitution - but they can't rewrite it.

Another point of defense: you paint anarchy as "idiotic" without so much as a factual charge of how any social institution would be different without a state. At least those here who do expound a theory of anarchy live in the realm of facts and observation, not name-calling and superficial dismissals of ideologies.

Lastly, I merely put forth the alternative suggestion that you may be a 'troll' - and gave a reason why you would fall under that label. You are the "name caller", calling me "nothing more than a douche-bag" and throwing out a quote from Jefferson that is more of a charge that the Executive and Legislature should be more weary of the constitutionality of their acts, not that the Judiciary shouldn't ensure that the Constitution is maintained in spite of the attempts to subvert it by the other branches.

I'd be happy to continue an academic and philosophical discussion of what the role of a court and legislature should be in a free society, but only if we stick to the validity of the ideas. In this vein I do realize that I did overstep these bounds by questioning your motives in posting and considering that you may have been playing the role of Devil's advocate - which I referred to as a troll - but I did not try and paint you with such vulgarities that your later posts included about me (which were also not directed to me, which is very poor forum etiquette).

So, to spark discussion: what authority can or should bind the legislature in creating law to Constitutional bounds?

[LibertyEagle]

Everyone, please do your best to stick to debating the issues civilly and not make the discussions personal.

[socialize_me]

Everyone, please do your best to stick to debating the issues civilly and not make the discussions personal.

I try to. It's just that people like mczerone take offense and call me a "troll" anytime I present an argument that doesn't agree with them. Then they're up in arms when I fire back...typical human nature I guess. It never ceases to amaze me how people can be so rude, but then still ask the question why the person they were being rude to decided to give them a taste of their own medicine.