Where can I lay my hands on a copy of the Devil’s Dictionary? Is it a shortcoming on my part that I have never encountered this particular lexicon before? Maybe, maybe not but that would explain why its definition of the Common Law as ‘the whim of judges’ came as such a revelation to me.
Having had the benefit (or otherwise) of a legal education, I have always subscribed to the view that the Common Law was a body of law consisting primarily of judicial decisions based on custom and precendent. I know this cannot be too far wide of the mark because it bears an uncanny resemblance to the definition of the Common Law according to Websters.
You see, Antoine, there is nothing ‘whimsical’ about the process at all. In fact, it developed, from the ground up I might add, in order to preclude whimsy and provide certainty. Your charge that many judges are ‘social justice creeps’ is most certainly true but I would hazard that this is a problem which is generational rather than systemic. Those warming the benches in our Courts now were manning the student barricades in 1968 and they have simply completed their long march through the institutions with their imprimaturs largely intact. This is a problem, granted, but it is a universal problem because for sanctuary from judges we beg the mercy of politicians in parliament and dare I suggest that there might be the odd ‘social justice creep’ in there as well, or should that thought perish? Besides whilst you are free to look up any relevant Statute, what, may I ask, is stopping you from reading law reports for the precedents?
To blame Britain’s litigious culture on the Common Law is rather like blaming the poor performance of the NHS on tax cuts. Rather it is State Law or Statute (or Napoleonic Code) synthesised by politicians and handed down to us like the miserable serfs we are, that has stomped all over so many of the sound, long -established Common Law principles that used to protect us from frivolous or vexatious claims as well as nationalising lawyers and judges alike and rendering them mere amplifiers of state policy.
When a burglar sues a homeowner because he tripped over their carpet, we are rightly outraged but you should blame the Occupiers Liability Act. Similarly, when an entrepreneur is hauled in front of a tribunal and forced to pay a hefty fine for failing to provide adequate childcare facilities or a sufficiently happy work environment it is not the Common Law at work, rather it is the various Employment Acts. And would it be indelicate of me to point out that the phalanx of Anti-Discrimination Acts have given birth to not just a litigious culture but an entire (taxpayer-funded, I might add) grievance industry?
Nobody, to my knowledge, has made the absurd claim that the Common Law would ‘automatically sort everything out’. Nothing will ‘automatically sort everything out’. But I would venture that the Common Law was more organic, more reasonable and better fitted to serve a healthy and prosperous civil society than the instruments of social engineering that have largely replaced it. Was it fallible? Yes. Name me a system that isn’t.
