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Blupete's Weekly Commentary


February 28th, 1999.

"The Common Law v. Legislation."

Common law is law that comes from the common people, versus, legislation, which, comes from those whom we elect and who are acting on the advise of the "experts." The first evolves slowly and cannot be found written down in any one spot; the latter, written up in lofty statutory language, which the best of our judges are often hard put to understand, comes to us in a moment. The common law has come about at the root levels of our society: it is not law that is imposed upon us from on high. The development of common law was "essentially a private affair concerning millions of people throughout dozens of generations and stretching across several centuries." It is a process that is self adjusting; and which goes on everyday, unnoticed; and, without great expense to the state; and, without fractionalizing society. The common law is a great body of English law which has not ever been (nor could it be) written down in one spot. It is a process which has a single guiding rule, the "golden rule," a negative rule: "Don't do something to someone that you don't want to have visited on yourself, either directly or through the agency of the government." Though it has suffered much at the hands of legislators, common law is yet followed in all major English speaking nations around the world. The common law, for those who have read history, to England, was and is its very force. The greatness of England, certainly in the past, is attributable, I would say fully attributable, to the stabilizing and enriching institution that we have come to know as the "common law." This subject of the common law is a great and wonderful subject: its evolutionary development and its great benefits makes it the most superior law system known in the world.

The common law is as a result of a natural sequence which hardened first into custom and then into law. It did not come about as an act of will, as an act of some group aware only of the instant moment, unaware of the nature and history of man. It came about as a result of a seamless and continual development, through a process which we can hardly even begin to understand; it evolved along with man.

The best that the "social planners" can attempt to do with their freedom stifling and tax raising legislation, is: to codify the common law: an impossible task. But, worse than that, it sets up different standards for different groups? Including, I note, the government itself. In addition, a legislator has to stop and think about what effect or effects the contemplated piece of legislation will have on the operation of other existing laws -- another impossible task. Legislation passed to fix one perceived problem usually creates several more, some of which are very much worse than the original problem to be got at. It was A. V. Dicey, a legal scholar with whom few could compare, who said: "The beneficial effects of state intervention, especially in the form of legislation, are direct, immediate, and so to speak, visible, whilst its evil effects are gradual, indirect and lie out of sight ..."


For more, see blupete's essays,
"The Common Law" and "On Legislation."

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Peter Landry

February, 1999 (2014)