A Few Thoughts On the Common Law

Conceptions & Development of the Common Law

The progressive nature of common law, quite frankly, does not even require a constitution. It developed out of need in medieval England after William’s conquest but the mantle of common law as an actuarial formulated manner of jurisprudential government really took place after the great anarchy over secession and Henry FitzEmpress became Henry II. Henry’s decisions, like long ago Solomon’s, established his “wisdom” by becoming the basis for future decisions (of course unlike Solomon’s decisions which led to revolt, Henry’s decisions were meant to prevent revolt.) And while the next three hundred years remained a stressful back and forth between king and lord, overall, the common law principle of judicial decision making was established by the Plantagenets. This is why we learn the importance of the magna carta. It did not establish the practical rights of any of its provisions as John and his predecessors fought those provisions prodigiously. But because of the common law that had already developed.the magna carta established a legally valid precedent for its provisions that slowly became the basis for common law instead of the kingly whims that developed into civil law. So while I refute the oft taught concept that the charter itself was of much importance in establishing future governance mechanisms, it did establish a sense that the practice of justice itself could be codified by its proclamatory nature of established precedents rather than the civil proclamations of the king. And that is important as the establisher of common law principles not because it actually established an alteration of civil substitution in the civil behavior of the kings. But because the charter was continually fought for and used to force the English kings into continued affirmations of its validity, and because those same kings continuously attempted to renege upon its bindings on his authority, the ensuing struggles included addendums to establish the supremacy of the charter to the authority of the king. Eventually the progressive addendums developed into the English parliament and the manner of governance by common, rather than civil law.

But common law’s roots actually extend to a bastard, who was by civil law standards barred from inheriting the title he indeed did inherit. The Norse invaders began moving into (“invading”) not just England, but also into the Rouen area of France, which would develop into the Duchy of Normandy. Because of this there was a close kinship relationship that would later enable him to claim the English throne But there shouldn’t have been a path for William’s rise in the first place.

.William’s mother was probably a servant of some kind, or the daughter of the king’s tanner. At any rate not only did William’s father, (Robert I of Normandy) not marry his mother, his title claims were further weakened because his mother did marry someone else and had more children by her husband. Despite this, his father died when he was only seven or eight, leaving a new controversy to unravel and the secession of his own father, who had been a second son, and some thought he had killed his elder brother, had created a tense uncertainty to the prospects of the entire Duchy. Upon Robert’s death the principality was being threatened by Alan III of Brittany who had been waging an attack against the duchy. The French king Henry I and the Archbishop Robert, who had not supported William’s father saw a better chance in the child to be managed favorably to themselves and the opportunity to strengthen their own positions against Alan and the rivals within the duchy itself.

As a result William was enabled to succeed and when Edward the Confessor died in England without any legitimate heirs, as first cousin once removed William invaded and became the last conqueror of England from without. But due to all of this, alliances were extremely important and William needed to grant rather unkingly rights to maintain allegiances of the lords who had supported as well as  to the church. So he attempted to rule by forming a council that contained the nobles and the leaders of the church. And in these councils William allowed the results of the meetings to be written down as the rules of governance by which they all agreed they would abide. This set the stage for a governance by precedent rather than by codification. And of course that concept managed to survive the anarchy and the promise of reinstituting the councils tipped the balance into settling the secession question in Henry FitzEmpress favor.

And that is the one promise he more or less kept. Or at least he was shrewd enough to maintain support by seeming to accept council decisions while in reality he allowed disputes between the council members to be settled by kingly fiat. And if that fiat was not accepted…well then hired thugs could take the life of a Becket or anyone who resisted, all in the name of justice, which remained under kingly control, against those who would not accept the established precedents. Of course Henry’s sons lacked Henry’s talent to at least seemingly allow decisions to be established by the legal precedents of justice established by the council and so we return to the long struggle between lords and kings that eventually spilled over into the sphere of other classes of citizenry and today, supposedly, to all citizens.

This is the story of the development of common law justice, and as you can see , because it is based on precedent rather than statute, it is the precedent that must be progressively updated and not the statutes. There has been a lot of discussion of recent on the legitimacy of the current court. Now let’s disabuse ourselves of the idea of the concept of the legitimacy of the court being an argument against unpopular decisions by the court as something that only our currently constituted make-up has ever had thrown at it. When John Roberts complained about people attacking the court’s legitimacy was an unfair attack on unpopular decisions meaning, the court itself, rather than its decisions they issued, were a measurement somehow of its “legitimate” functioning. Well Mr. Roberts, you are surely old enough to remember the attack on the legitimacy of the Berger court over decisions it issued on pornography, free speech, redistricting, bussing, gun control and of course on “privacy” as all being somehow “illegitimate”. And of course before that the Warren court was constantly plagued with arguments of illegitimacy. Even before the election of FDR , Chief Justice Charles Evans Hughes, and the Taft court before him were challenged by working people as illegitimate and Roosevelt felt their meddling so wrong-headily illegitimate he devised a plan to “stack’ the court to create its legitimacy. John Marshall Hatrlan’s obscure arguments against his own court that were frequently populated by dissents that the majority opinions were suffering from legitimate comprehension of the issues at hand. The Taney court is still often considered illegitimate especially in reference to Dred Scott (which was actually, at its time one of the most perfectly legitimate court opinions ever issued both to the unamended constitution as well as to the congressionally mandated legal status of slaves at the time of the decision–no matter what we may feel about the institution of slavery if the Taney court had ruled in other way in Dred Scott it would have broken every principal of common law precedent, legal statute and constitutional mandate). But of course Chisholm v. Georgia was thought so illegitimate that the 11th amendment was called forth to overturn it.

For the first few letters I am going to attempt a totally lay perspective on law.  My focus in these articles will be primarily centered on common law which I believe can lead to reevaluating justice in a continuous manner, and in a manner that leads to greater justice that should in my opinion, always remain contemporary and never retract to the past that might appeal to a utopic idealization of the past.  The primary reason, as I see it, is that if, at any time in the past, such idealized visions had ever been such utopic paradises, then we would not have made adjustments to the past for a better, more just, vision.  But every vision of the past cries out for a continuous progress, both judiciously and societally, because no past society ever managed to be fulfillingly satisfactory in creating what is seen by the society of the past as satisfactorily acceptable justice.  Just as no future will be able to reach a completely fulfilling state, and in which everything would be just, no past society ever achieved such a state.  

We may all long for such a vision either for our future and we can work towards it in ways we hope at this moment, will enhance the best possibilities for a better, or more  fulfilling future.  But to try to demand a better future by obedience to an already discarded past refutes and retards justice because the past did not succeed in creating the justice that had then existed and was refuted as failing to be able to do so.  This is not to say the past has no message it can offer us, but the proponent of a nostalgic absolution from the present fails to recognize why the past failed in being satisfactory and needed to update itself.  It just did not achieve the ideal our reflecting back on certain aspects of it and denying other aspects can never encompass the sum and generally must deny the negative aspects that led to it being disregarded.  This is why the common law justice is progressive.  Progressive in no way (and I will repeat this statement multiple times) has anything  to do with political movements of left or right, which, at least in principle should both be about ways to create something better, but progresses in a way to continuously attempt to take the benefits of the past (conservative) and ally them with the needs of the present (liberal).  Progressive judgment must consider both aspects and cannot be confined by the past nor uncritically examining the role of extreme liberality might untemper society.  In this way common law can progress just in the same way that all evolutionary development does.  We can never return to yesterday, but likewise we must progress into the future understanding the failures and trying to correct those failures to meet the future.  But when the future arrives we must be ready to reevaluate this particular present, that will now be in the past.

A word about “woke”.  First of all, I suppose it probably means the “woke” have recognized some of the non-fulfilling aspects of the past, and to be anti-woke apparently means to suppress the progress away from what had not been satisfactory.  If you think about it thusly it’s very easy to determine anti-woke as not being about favoring the past whatsoever into an ideal that never existed, it is about suppressing the future from any realization that the past was not fulfilling.  I do not think it necessary to contemplate any particular “anti-woke” platforms because the intent is self-obvious.  If the citizenry is “woke” it is a citizenry awoken to justice and politicians who base platforms on anti-wokeness, well they are putting it right out there  that their goal is to eliminate wokeness or any attempt at justice.  If they can eliminate the common law that is progressively reevaluating justice contemporaneously then they can establish uncommon, but not necessarily civil (at least not civil until they are able to rewrite the civil code to eliminate justice and common law), justice, where justice becomes rigid and sponsors only the authority of those in charge.  

It is almost ironically ludicrous that the type of justices appointed by Donald Trump are going to be the very type of proponents against the loose governance and legal bombasties of a man who has always challenged judicial authority.  Even though the whole idea of Trump’s appeal is to tap into the defeated feelings of those who have lost their optimism.  Trump was able to reach such heights of influence with these defeated souls because he himself, despite his projections of success, had throughout his life, felt life had given him no love or respect.  His grandiose visions of glory to compensate for his own feelings of inferiority made his narcissistic delusions appear as a powerful voice to those who believed that justice had shrunk them into inferiority.  Those that had become ripe because the system appeared so totally unjust and their feelings were easily susceptible to follow the bombast. They saw hope in Trump’s projecting himself as a winner who was capable of overcoming the essential non-justice of their lives.  He offered them a promised land of renewed justice by taking away the perceived causes of what had eliminated their own hope.  That those feelings had been misdirected by those very leaders of authority and industry into believing their misery was being caused by “immigrants” and people receiving favors (“entitlements”???) from the government, even though most of them were surviving on some type of government assistance.  But the justices of retraction from common law are never going to favor justice for them, or for Donald Trump who actually challenges strength because of his own weaknesses.  Okay, maybe Thomas has sided with him.  But Thomas has, similarly to Trump, has had a massive defeatist spirit, and has seen his role on the court to payback the system of justice he felt had marginalized his own opportunities.

But, ah!, the stage is set now to eliminate the common law, with the anti-woke attacks of a Ron DeSantis ready to assume the mantle of uncommon jurisprudence and completely destroy the very people who have lost all hope.  A complete vision of utopic anti-hope.  And from this perspective, I would like to present, from a lay perspective,  a few “case studies”.  We will start with a couple of studies that, in my opinion, were horrible interferences with common justice and conclude with a study of a couple of lesser known cases that I find to be perfect examples of how the common law can establish a relationship of contemporaneous reevaluation.