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Today’s Lecture:

Common Law, Courts & America

1. Law in Rome

2. The Development of Courts and Common Law

Lecture Organization:

• Class Announcements

• Review & Clarification

• Historical Development of Statutory Law the High Seas

Time

• Bonham’s Case

• The Basis of Legality

• Historical Development of Courts & Common Law in England

• Another Example of the Orthodoxy

Class Announcements

Online Lectures

-- Slight delay. Posted this week

Class Participation

Multiple-Choice Questions

-- There will be a policy change announced today

-- point system for each type of question will be different.

(true false, multiple choice, book or lecture)

-- Please don’t forget to drop comments in the right box

First Quiz Posting

Forgetting Attendance Sheet

-- Looks like next Monday

-- multiple choice questions should be given to me by Thursday at the latest.

-- Let me know when that happens

Class Announcements

Time

Case Briefs

-- One due today; keep watching “course alerts”

Questions?

Review

-- not terribly happy with my organization of the first lecture

Poor organization

Basic goal:

-- develop two basic ideas about the foundation of law in legislatures as opposed to courts

Time

Bonham‘s Case

Facts

• Dr. Bonham wants to be a physician

• To do that, he has to go to the Royal Academy of Physicians (“medical school”)

Question:

What are the facts of the case? (Distinct class

participation)

Question:

What was medicine like in those days?

• “leeches,” “blood letting” (today, “alternative healing?”)

• To be given a license for this, you had to be admitted to the college – something that not all people had the right or opportunity to do

• Bonham bypasses the college and starts doing it himself

Question:

What happens next?

• The college can act as the police and can arrest you and punish you. (The academy polices violators).

Bonham‘s Case

Holding

Question:

How does the case come out?

Maxim: “No man can be his own judge.”

• The college cannot prosecute this matter

“The common law and common reason are one”

(a priori reason dictated the answer)

Quote from Lord Coke:

Lord Coke --

And it appears in our books, that in many cases, the common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void; and, therefore, in 8 E. 3. 30 a. b.”

• Courts have judicial review?

• Parliament cannot violate fundamental justificatory law (fundamental natural law?)

Caveat: No English Revolution yet

Questions:

Was this case correctly decided?

The Basis of Legality

--Bonham’s case raises an interesting question:

• What is the ultimate basis for legality?

• if we theorize statutory law to be non-justificatory, and theorize some other kind of law be justificatory, what happens when the two conflict?

-- thing about the things people have theorized to be “above or beyond” statutory law …

The Statute

God?

St. Thomas Aquinas

A tyrannical law … is not a law, absolutely speaking, but rather a perversion of law ..

“that which is not just seems to be no law at all”

13th century

The Statute

God?

Church (Pope)?

Henry VIII says no

God?

Church (Pope)?

Puritan New England tried that

Congregation?

The Statute

The Statute

Sacred Tradition?

Question:

If a statute violates a sacred tradition, should it be stricken from legality?

The Statute

Correct Reasoning?

Question:

Can this EVER be right?

The Statute

Science?

Question:

What about this one?

Example: Thomas Jefferson and Jay’s Treaty

The Statute

The People?

The Statute

The People?

Polls/Surveys?

Populism

Question:

Is this right? Imagine if statutes could be declared void for reasons of polls or

surveys? Is this good?

Question:

What would be the law of free speech if this were so?

Greatest Good for the Greatest Number?

The Statute

Utility

Question:

Is there anything wrong with this idea?

Question:

What would be the law of free speech?

Question:

Would we have entered World War I? Separated

from England?

Question:

In measuring this, is everyone’s welfare

considered equal? Maybe some people’s happiness is

actually more valuable?

Question:

Let’s say the law required Mike Tyson to go to jail, but

most of us would be happier seeing him box?

Should the law be ignored?

The Statute

The Social Contract?

Question:

What about this one? If a statute violated the polity’s

social contract, would that be a good reason to declare it

null?

Question:

For Gryffindore points, who do you think invented this

one?

Some terminology

-- I need to acquaint you with a way of talking. Pay attention to the way I use these words.


Positivism

-- only the formally enacted rules. (including court precedents)

-- only what the legal text says.

-- e.g., your syllabus

Some terminology


“Natural Law”

-- is a sloppy or poetic way of saying “extra-textual authority”

-- something that justifies BEYOND or OUTSIDE of the formally articulated rules

-- everything that I listed in those red boxes is an example of appealing to “natural law” (extra-textual authority)

-- e.g., your syllabusSemantic Point: Positivism v. Normativism

On the separation of law from politics

-- early thinkers tried to separate “law” from “politics”

-- “law” in a grandiose sense of talking is something that should be above politics, something pure and self-evidently correct

-- often times, you would hear the expression “law of nature,” sacred tradition, “right reason.”

-- In medieval times, this urge was facilitated with appeals to “God’s law.”

-- now that the enlightenment is coming around, the idea of perfection in law is changing.


Notion! … Law and Politics are Separate?

The statutory power The justificatory power

War

Taxes

Police State

Order

divorce

contract

property

equity

Politics “Law”

-- American constitutionalism has an interesting answer to the riddle or search for the basis of legality

-- Let’s examine some of the basic ideas:

American Constitutionalism

Separation of Church and State

-- Get God out of the lawmaking business

-- No more claims for religion being legally above the state

-- No more natural law based upon theology

Popular Sovereignty Over the Statute

-- Tie the statutory power to a ritual involving popular sovereignty

-- If leaders survive the democratic ritual, they can command the statutory power

(Much better than might makes right)

(Much better than divine right)


Codify Fundamental Law

-- Write down all those fundamental things that are the highest form of law

-- Write down the sacred traditions. Write down the principles of “right reason.” Write down the natural truths.

-- Send the written instrument into a democratic ritual, and if it passes, THAT becomes the social contract.


Compare: England

Difference in the constitution and statutory rituals

The Constitution is sort of a “Super Statute”

Question:

For Gryffindore points -- how would America handle

Bonham’s case?

Answer:

The statute cannot be struck for “right reason” or

the common law. It can only be struck if it is

unconstitutional (violates some provision of constitutional text)

Sort of stealing or promoting certain previous examples of “natural law” (the good kind) into a positivistic universe. The sacred fundamentals are now RULES that have the same appearance as the other ones.

-- Congress is allowed to overturn common law decisions

-- the common law is the lowest form of law in the system

-- legislatures overturn common law rules all of the time


American Legal Hierarchy

Legal Hierarchy –

1.Constitutional rules

2.Statutory rules

3.(Administrative regulations)*

4.Common Law

The statutory power The justificatory power

War

Taxes

Police State

Order

Constitution

Common Law

Politics “Law”

Recurring Elections

Lobbying

Structured ConflictEpistemology?

A calculus of some sort?

Hamilton -- Judging is Special?

1. Hamilton Federalist #78: Don’t fear them:

(1) They possess neither the purse nor sword;

(2) They reach their decisions neither by force nor will, but by judgment.

2. Federalist # 47: Madison (quoting Montesquieu) “were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.”

King’s Old Power

SOCIAL

CONTRACT

Popular sovereignty

Q: who is the sovereign in America? A: it’s a riddle.

Elder’s Old Power?

Codified in the Contract; Preserved by the elders?

Political

Marketplace

Epistemology?

Technical craft?

King’s Power

SOCIAL

CONTRACT

Popular sovereignty

Q: who is the sovereign in America? A: it’s a riddle.

Natural Law

Codified in the Contract; Preserved by the elders?

Time

Introduction to Philosophy Terms

1. Philosophy’s Mission

2. Epistemology

3. Justification

4. Paradigm

5. A priori

(a) foundational (starting point)

(b) certainty (something undisputable)

Class Announcements

6. Founding Fathers: Socratic epistemology

(a) Truth is external to the believer (go find it)

(b) Greeks

7. Jurisprudence

8. Natural Law and Positivism

Time

Power of Statute

-- originated with Kings under absolute monarchy

-- slowly, over time, Parliament came to share this power

-- After the English and American revolutions, legislatures came to have this power, with kings/executives having veto power

note on terminology:

-- Legislatures, Parliament, Congress, “political assembly” or “the assembly” (sometimes used interchangeably)

The Historical Development of Statutory Law

Power of Statute

other names for this kind of law:

-- “codified” law (“code books”)

-- statutory law

-- “statutification” (proliferation of statutes)

verbs for who is wielding this power

Legislatures

enacting, passing, legislating

King

proclamation (ing), decree (ing),

pronouncement


-- formal articulation

two important things:

(a) notice of how to comply (expectations clear)

(b) an externalized rule or a standard (“law” is something concrete that sits apart from the intention of the sovereign)

Important Events in the Philosophic History of Statutory Law:

State the Law!

Twelve Tables Code of Hammurabi


Universality?


Statutory Law

Dispensing Power

Slavery

-- certain people were above the law, certain people below it

-- an important innovation will be the idea that lawmakers are subject to it, and that everyone receives it equally


Does it require a basis?


-- fascinating question ..

• does legislation have to be fair?

• does it have to be cogently reasoned?

• does it have to be the best solution possible?

• does it have to be compelling?

• does it have to be empirically justified?

• does it have to be wise?




… answer seems to be “no”

-- whoever has this power gets to COMMAND.

-- there might be some commands that people have theorized are not allowed (violating God’s law? violating fundamental law? violating the constitution?)

-- so long as the command is not one of those, there is no requirement that the statute be properly reasoned, well supported, reasonably necessary, enlightened, consistent with tradition, etc etc etc.




… answer seems to be “no”

No justification is needed for the use of the power

Terminology … statutory law is “non-justificatory”



Who wields this power?

-- early on … Kings, through divine right

-- later on, Kings and Parliaments share it

-- finally, the political assembly has it


-- the enactment of land reform was LEGAL

-- the statutory law allowed for it

-- but, paradoxically, it was also LEGAL in Roman politics/society to enforce the domination of powerful, elite social clans.

-- hence, the public “clubbing”

Important Events in the Politics of Statutory Law:

Roman Land Reform

The Rule of the Will of Powerful Clans

Might Makes Right


-- God’s law as declared through the Pope did not allow for divorce

-- Henry VIII gets rid of the catholic church and starts a new church (Church of England)

-- Quandary in medieval legal thought … where does law come from? Who is the ultimate authority – God or man?

-- “I am the sovereign”

Important Events in the Politics of Statutory Law:

King Henry VIII


Time

Courts as administrators

-- courts tended to be creatures of the sovereign

-- Consider the phrase, “The King’s Court” (King’s courtyard)

The Sovereign

“courts”

Various names:

• Magistrates

• Chambers

• Councils

• procurator

Privileged participants:

• Clergy

• Aristocrats

Historical Development of Courts & Common Law in England

-- Henry I (1100-35); Henry II (1154-89)

-- Basic concern: improve how disputes were being handled in the country

-- make the customs and traditions uniform (“common law”).

Improving the court system in the realm


Magna Curia

Knights and their methodology

Scrolls and Monks

Writ System

Inns of Court


Development of the Court System

--recognized 500 different kinds of actions

-- could issue awards for money damages, try criminal cases

(this is what PA calls its trial court)

-- over time, an elaborate court system developed:

Court of the Common Pleas (1230)

Court of the King’s Bench

-- appellate Court


Development of the Court System

-- tax court (specialized court)

-- Exchequer was the equivalent of the Treasury or perhaps IRS today

(the King could not trust the ordinary judges with his money)

Court of Exchequer Pleas


The common law orthodoxy

-- I had mentioned that the use of authority is always accompanied by a rationalization about why the authority is legitimate

“regime ideology”

-- when the King of England was starting these Courts in medieval times, the rationalization was metaphysical

-- in order to understand the psychology of this rationalization, I put a psychological image in your head:“The Elders” Gandalf Council of Elrond


The common-law orthodoxy

-- This advertisement for “law” was different from what I had mentioned earlier

JUSTIFICATORY

The Elders were claiming to have the right answer

They were the keepers of the sacred traditions and customs of the polity

The right customs, the right way to do it

Also claiming “Right Reason”

Law must be “correct”



One case at a time:

vs. One person pummels another.

One person pummels another in defense.

vs.

vs. One person pummels another to expel him from the land

Common Law of Battery

Other Subjects:

• Crimes

• Procedure

• Divorce

• Torts (injuries)

• Property

• Contracts


• Study the problem? (engineering)

• Appease -- take a poll? (populism)

• Consult interest groups (power structure)

(Not what is being advertised. The Elders can deduce the solution through wisdom, experience and knowledge)


Note that there are other ways to find answers to cases:



Important things to keep in mind:

-- The case results have a rationalization. Unlike statutory law, the lawgiver demonstrates why the law is CORRECT

-- The body of decisions that build up are thought to be a kind of KNOWLEDGE

-- In the early period (through the 1600s), the decisions take the form of MAXIM or PLATITUDE

“genre”



Another thing: Precedent

-- Each decision is called a “precedent.”

-- Note the grammar:

-- The decision PRE-cedes the outcome

-- Theoretically, if the decision was simply made up, contrived, expedient, or is a sort of Band-Aid, it should be called … antecedent?


The development of an ideology about precedent

-- Over time, as common law develops, there begins to develop an ideology about precedent

-- The idea is that setting a “precedent” is an important event

-- precedents shouldn’t be broken

– shortened for a longer Latin phrase that means “to stand by the decision and not to disturb that which is settled.”

Stare Decisis


The Development of Equity

-– people might lose a case because of a technicality

-- (e.g., suing for an injunction instead of damages)

-- the precedent says “no,” so its no.

“Mechanical” jurisprudence “formalism”

Courts of Equity

-– the “keepers of the King’s conscience”

-- staffed by clergy (priest)

-- applied general standards of fairness rather than legalistic formalism – could overrule the common law courts.

Court of Chancery (1474)


The Development of Equity

-– Hence the saying, “I violated the rule for reasons of equity”

(e.g., syllabus example)

Explain the way it is today:

-– Legal and equitable rules were merged into one court system. There is no longer two different court systems (law and equity)

-- there are, however, legal and equitable relief. You just seek both under one house.


Notice how important the ritual of precedent is

-- What distinguishes what Courts do is that they consult their past

Compare: Congress

-- When Ted Kennedy has to decide how to vote, he doesn’t have to consult the reasons for his past moral choices to make the current choice adhere to it.

-- In theory, He can innovate. He can double talk. He can change directions with the power center or the wind.


Notice how important the ritual of precedent is

Compare: Board of Directors

-- Whether they should raise prices or offer stock options isn’t theorized to be based upon what they have done in the past

(e.g., you can only do it if corporate tradition allows it)

-- It is only Courts that appear to be concerned with this way of deciding.

Time

Let’s try an example

vs. Tipping at a restaurant

Question:

Do you have a duty to tip at a restaurant if you can

afford it and if the service was good?

Question:

Why??

Question:

What should the tip amount be?

Question:

How do you know this?

Question:

Let’s imagine one day that the Corner Restaurant begins

confiscating waitress tips without telling the customers. A suit is fled before the elders. How would they

resolve this?

Another Example of the Orthodoxy



vs. Tipping at a bar

Question:

Same issue, only a bar – how would you resolve this

one?




vs.

vs.

Tipping at a bar

Question:

Same issue, only a buffet – how about now?

Tipping at a buffet




vs.

vs.

vs.

Tipping at a bar

Tipping at a buffet

Tipping at Star Bucks

Question:

Same issue, only at Star Bucks

Common Law of Tips



vs. Tipping at Sub Way

Common Law of Tips

vs. Tipping at Giant Eagle

vs. Tipping your professors


Other possible examples

Interference in Football or Hockey

The Strike Zone in Baseball

The proper tax rate?

Giving due process to enemy combatants


Alternative ways to resolve this

Study it? (engineering)

Take a poll? (populism)

Consult interest groups (power structure)


Time

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