What is Common Law?

 

Common Law is a manifestation of Natural Law, taking that sense of right and wrong and making it tangible, writen law. Conscience turned into man-made law. The word conscience means ‘knowing together’ from the etymological origin of con which is ‘with’ or ‘together’ and science which means ‘what is known or knowledge’. What we can know together is what makes laws, from our inner sense of right and wrong. 

It has been argued that Common Law is common sense put in practice. It is the ‘place’ in which we find common ground, we can settle any disputes. There is a maxim in Common Law which is that one always has to remain in honour, which is a way to stating again the same, respect others in their property, and do not do to others what you do not want to have done to yourself.

The main idea behind Common Law is that no one ought to steal from another man or woman. Why just stealing? Because all crime can be reduced to steal what is proper (the property) of somebody else: their life, their dignity, their truth, their freedom to choose, etc. When one steals from someone else, one is taking what is right from them.

It seems too simplistic to be put in practice, surely ‘life is much more complex’. However, shouldn’t law be easy to understand by the maximum people possible? If it were simple, it follows that we’ll make sure that people would be able to practice it. How is one supposed to follow laws which are too complicated to learn or to practice? There are Law dictionaries of all kinds, and law-makers are supposed to specify which dictionary they are using when making “law”. So how come an English dictionary is not enough? Apparently, there is a foreign language called ‘legalese’ which is not English but certainly looks like it. And because this is the case, ‘legalese’ needs to have its own dictionaries so everyone who wishes to really comprehend, can do so... “let him who wishes to be deceived, be deceived”.

Let’s look at Common Law’s don’ts:

1)     Cause no harm

2)     Cause no loss

3)     Do not breech the peace

4)     Do not use mischief in your promises and agreements

We could argue precisely in this time we find ourselves; how do we know whether our actions have caused somebody else harm? Am I causing harm or loss to others just by breathing next to them? Am I doing it to the community at large?

Well, in Common Law, no amount of possibility can give rise to fact. No victim no crime. A fictional entity is foreclosed against attaining parity with a fact. This is just a fancy way of saying that there needs to be a clear victim for there to be a crime. “Perhaps”, “maybe”, “there is a chance of” … are not facts in law.

This Law is case-law, it is exclusively made by the decisions of the juries and not by the judges. What that effectively means is that each case, judged only through the consciences of 12 randomly selected juries of the community, will re-write or confirm law. If the accused is found guilty, the law stays as it is. If the accused is found not guilty, the law is changed. This is called ‘jury nullification’ and it is the closest mechanism we have to real democracy. Law decided within the community, using their consciences and assuming that it is preferable for the entirety of the community that a guilty man receives no punishment than that an innocent one gets it. 

Ken d'Oudney (2016) asserts that:

"the consciences of a Common Law Jury of twelve form a safer, purer tribunal than those of specially appointed individuals holding permanent offices lucratively remunerated and bound to enforce the government's legislation" 

The judgement returned by the jury is, therefore, based in principle and not in outcome. Forgiveness is preferable to revenge and punishment, and I wonder whether a society like that would be more peaceful and safer than the one we find ourselves in.