posted on Aug, 25 2012 @ 07:55 PM
I apologize for not being here sooner... this is a topic of special importance to me. But you have already establish a number of different analytical
angles, and I'm afraid I disagree with the precept upon which you have constructed the arguments.
It appears that you are all in agreement about what common law is. Wikipedia notwithstanding, my inclination is to view "common law" from a
somewhat different perspective, technically speaking. I must begin from my beginning, and hope you forgive my going over aspects of this that you may
feel are not pertinent to where you are in the dialog. Ignore me if I'm too tangential.
Common Law is relative. In fact, I must say that common law is only possible to define in terms of a comparison to another existing legal structure
whether it be in coexistence or apparent disharmony.
Jurisprudence systems, as they mature and become more complex, give rise to "common law" (It's almost as if it is a function of 1) the complexity
of a civil law system. along with 2) the cultural diversity of a population.) The need for specificity drives civil law to evolve into ever more
convoluted and derivative constructs as it is required for increasingly distinct applications. Eventually, as laws are crafted to cover different
peoples, entities, circumstances, and social change; it reaches a point where laws are applicable only in certain places, times, etc.
You can only find codified common law in terms of it's historical context. And well, in keeping with my notoriously verbose ways; I offer this for
you to consider:
Roman law is the predominantly influential law in western society (the why and where of this is too tangential even for me to delve into here.) In
the second century, a Roman Jurist is said to have cited Justinian's Digest regarding this matter: "All nations governed by laws and customs use
partly law which is peculiar to themselves and and partly law common to mankind." (ius commune omnium hominum)
"Ius Commune" = Common Law.
The "law peculiar to themselves" is what he explains is "civil law"
Eventually, as laws became more applicable in terms of territoriality, "common law" was usurped in weight by the force of kings and principalities.
Governing became confused with control, and valiant efforts have been made to keep the law from being inhuman. Some really have succeeded... others
not so much.
When we common folks discuss the law we must never forget that much of it is tradition. The inertia that makes institutions stop obeying and start
I see that I have blathered enough. But it will be from this vantage that I will pursue this topic, if you don't mind.