| | Some friends of mine spent a good portion of their free time - much more than I have - investigating the common law and its alternatives over a period of decades. What I gleaned from discussions with them that might be worthwhile stating for purposes of reference:
The "common law" is literally "the law of the commons." That is to say, there is private property and private contract, neither of which concern the common law until something breaks. When there is a dispute over property or contract that cannot be resolved privately by the parties according to their own agreements, then the option to take the issue before a common law court comes into play, strictly because the issue can no longer be handled privately. It has by default fallen into the commons, where more general principles that go beyond what may have been explicitly incorporated in a contract are the rule.
The contract and/or property title and related private issues do not disappear at this point. They form the local context within which the more general principles apply.
Similarly, when a local common law court renders a decision, it can be challenged and appealed to a court of broader authority and jurisdiction on the grounds that the local decision inappropriately violated still broader concerns.
For example, two farmers might be sharing a stream under a joint access contract and a pair of complementary property titles. Then one of them starts raising pigs and the waste ends up polluting the water upstream of some of the intakes for the other farmer. There is nothing explicitly in the contract that forbids this, and farmer 1 argues that he should have the perfect right to do so. It's HIS PROPERTY, damn it.
Farmer 2 realizes that he will never change his neighbor's mind and files suit in the local common law court. If the court decides in Farmer 1's favor. on the basis of the nature of the contract between them, farmer 2 might then appeal on the basis that there is a broader principle at stake which applies to everyone in the area, all of whom will suffer harm if unchecked pollution destroys the clean water supply.
If the court rules in favor of Farmer 2, on the basis of harm to the property rights of Farmer 1, then Farmer 2 might appeal on grounds that the court inappropriately interfered in a private contract, which spelled out the respective rights and said nothing about any pollution issues.
This may not be the best example, but it's what I could come up with off the top of my head.
One of the myths of the common law, however, according to my friends, who were big common law fans, BTW, is that it was - during the pre-Norman conquest Anglo-Saxon period - of any real level of sophistication by modern legal standards. This myth I think was started by an account by a Mr. Blackstone in his legal commentaries - someone correct me if I'm wrong.
In reality, you were lucky if the local common law judge was even literate. Books and written contracts among the commoners anyway were rare. Juries were generaly made up of very ignorant and superstitious people and outcomes were generally questionable. Nonetheless, having ANY kind of law that allowed people to resolve issues peacefully and get on with their lives is vaster superior to the alternative.
The Common Law itself, if implemented properly, aims unswervingly toward full and complete justice. There are no punishments, no rewards, just equity, returning things to a proper state, and charging whoever was responsible for the damage for the exact costs. Unfortunatley, this structure can also be very time-consuming and accordingly expensive. High transaction costs undermine commerce and general productivity.
Non-state alternatives to the Common Law which my friends investigated included the UCC, among others.
My understanding is that commercial interests created the Uniform Commercial Code, which was intended to bypass the Common Law and the generally even worse - MUCH worse - legislated law bottlenecks by specifically stating how much damages can by demanded, implied duration of contracts and liability issues, etc. By codifying cases in advance, much of the overhead could be avoided, or so it was hoped. Alas, over the decades, the UCC has ended up with many, many volumes of cases and exceptions, trying to fit every possible situation.
Among all the alternatives available, I think that private arbitration generally comes out on top. The process is simpler and much faster and cheaper, and typically yields results as good or better than the positive (legistated) law courts. However, you can't force someone into private arbitration, under any conceivable system of real justice. There has to be some kind of option for appeal - unless they agreed in advance, uncoerced, to accept the arbitration verdict as final.
Thus we get to my solution, which is a universal social contract that spells out the methods of conflict resolution for every signatory. Such a contract could serve as the cornerstone of a universal web of just relationships, with reasonably low and highly objective outcomes. I would suggest that it specify arbitration, at least as option number one, with perhaps an appelate mechanism aimed mostly at misconduct by arbitrators, and perhaps an option to go to a common law court if one of the parties was willing to post the bond to cover the increased court costs.
|
|
Common law is good in the way witchdoctors were once good: some of their discoveries were a primitive form of medicine, and to that extent achieved something. But once a science of medicine is established, you don't return to witchdoctors. Similarly, common law established--by tradition or inertia-- some proper principles (and some dreadful ones). But once a civilization grasps the concept of law, and particularly of a constitution, common law becomes unnecessary and should not be regarded as law. In a free society, anyone can have customs; but that's not law.
