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List of Common Law rights anybody? I hate emails like this. But now, instead of suffering alone, I can spread the load to all of Samizdata’s readers. That way, even if the problem remains unsolved, it can at least rot out there in the Commons where it belongs.
Dear Mr Micklethwait
I am writing a concise statement of ancient rights as part of a longer publication.
I want to include all the most important Common Law rights: life, liberty, property, family life, fair trial in open court, Habeas Corpus, trial by jury etc.
I cannot find a comprehensive list anywhere. Do you know of one please?
Regards,
Richard Marsden
My irascible Libertarian Alliance colleague Chris Tame is fond of translating such communications until they read more like this:
Dear Mr Tame
Please do all my work for me.
Regards,
Lazy Bastard
But maybe I now have friends and acquaintances who can be a little more constructive and polite than that. I don’t know the answer to Mr Marsden’s question, but maybe one of you clever geezers does.
Any suggestions?
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Part of the problem with the inquiry is that the common law is a moving target, always evolving as cases are decided. He needs to specify a date.
Second, he is asking for the “most important” common law rights. That’s a bit of a value judgment, right there, that makes it impossible to find an “authoritative” list.
Not especially helpful, I know, but you get what you pay for!
I’d throw Jury Nullification into the list…
Inasmuch as the common law is something that is not necessarily written down but is divined by judges based upon precedent (written opinions in prior cases) and experience and which evolves over time as society changes, I am not sure that such a list exists. Nor would I want it to. Fundamentally, the Anglo-American legal system permits persons in this country to do that which is not prohbited. Government employees, on the other hand, may not take an action which is not sanctioned (permitted) either by statute or regulation.
As for a list of common law rights, Mr. Marsden could start with the first ten amendments to the United States Constitution which we colonials usully refer to as our “Bill of Rights.” It is not a complete list of common law rights, but it is a beginning and ones we thought important enough to put down in writing vis-a-vis the new central government we were creating. In order to build support for adoption of the Constituion (drafted in 1787) and to allay some of the fears of those worried that the proposed federal government would have too much power, the proponents had to promise to add a Bill of Rights to the document. It is my understanding that James Madison (considered the “Father of the Constituition”) drafted the proposed amendments. The first United States Congress accepted some and rejected others of Madison’s proposals and sent the various proposed amendments to the States to be ratified or not. The States ratified the ones in the first ten amendments. You will find that Madison borrowed heavily from important English or British sources such as your own Bill of Rights.
Hey, it’s better than the “You’re a racist fuck and I hope your children all die of cancer” letters* I normally get.
*Because I had the temerity to write that since all aid money given to Africa has pretty much ended up in the toilet / in Swiss bank accounts, and the West shouldn’t bother trying to help Africa anymore.
Why not just list the legal rights Britons will have if the EU Constitution is signed? It can’t take more than about 20 seconds. Something like this would be about the sum and total:
1. The right to support and agree with the EU and its institutions as it works to build a more perfect union.
2. The right to remain silent
3. Er …
4. … that’s it.
You have the right to fight for liberty.
That’s it. Everything else must be earned or inherited, and can be taken away.
I like Larry’s zero-based accounting, but I think we can get a little farther than that and look at the rights we have fought for in the past.
I was going to write a lengthy comment here, but then I just decided to post it to my own site. We’ve got two main areas, civil and criminal rights. Ah, just go read it, I can’t summarize.
My conclusion? All that common law really comes down to is “leave me alone, and I’ll return the favor.”
Off topic, but I thought I’d inject a little black humor here while pointing out the positives of a right to self defense:
Jackson homeowner shoots, kills alleged burglar
The humor comes from the dead burglar’s name. It was Stiff. Christopher Stiff.
Mr. Dean is right when he says, “Part of the problem with the inquiry is that the common law is a moving target, always evolving as cases are decided. He needs to specify a date.” Likewise you need to write your constitution down if you want to keep it. As for the the EU Constitution, if it takes a thousand pages to cover all the details, it’s not designed to enhance your freedom.
The point is “Natural Rights” don’t evolve over time, or we’ve missed the point entirely.
The first ten amendments to the US Constitution are a good place to start if you want “a concise statement of ancient rights”.
In addition to being the only place folks still use the English system of measure, increasingly America is the last refuge of what, in olden times, used to be “the rights of Englishmen”.
The common law is absolutly riddled with vaguely defined principles which can be defined as rights. Most are just common sense notions of fair-play, like “a man’s home is his castle”, but some are clear and vitally important, like the right to a jury trial.
But leaving aside the common law which has protected us for so long, I am more and more concerned about the EU’s extremely narrow concept of liberty and individual freedoms.
Legal systems like the ECJ and the ICC are just mutations of civil law and lack the individual protections that we would consider our birthright. For example, the ECJ ruled last year that the EU has the power to make criticisms of its policies illegal in order to “protect the rights of others”. (!?!)
In the same vein, it seems likely that at some point Britain will have to abandon the common law and adopt the French civil law system. If Europe is to be one, it will need to be governed under one law.
Abby worries about “the EU’s extremely narrow concept of liberty and individual freedoms”. What worries me is that it has no concept whatsoever of freedoms, which imply no right of interference for others and do not derive from state or collective authority.
The civil-law conception of rights–granted by authority and importing duties to comply by others–has drowned out liberty from the discussion altogether. The preoccupation is with “balancing” rights, which, like interpreting the will of God in theocratic systems, arrogates to the heirarchy the absolute power.
It’s not just the EU that has this neuropathy. Common-law countries are affected too. Britain has had a bad case for decades.
I heard an interesting story about a hearing held by a committee of the Scottish Parliament that was preparing for the recent change in land law. Many top advocates and law professors were brought in as expert witnesses. One professor was referring to some ancient principle as being under common law. A Labour MSP asked: “Which Act of Parliament had introduced this law?” “No,” replied the professor, “It’s common law.” The MSP repeated her question. Not only had the poor woman – a legislator – never heard of common law, but she flatly, and publicly, refused to believe that there could be such a thing.
To actually answer the question – start with Blackstone’s Commentaries, and go from there. There was an excellent annotated Blackstone published in the 30’s, damned if I can remember the name of the author right now.
llater,
llamas
I think Peter is exaggerating – I suspect we won’t be allowed the second right he lists, either.
Instead, it will be “Comrade Napoleon is always right.”
Not only had the poor woman – a legislator – never heard of common law, but she flatly, and publicly, refused to believe that there could be such a thing.
Can you give a citation for this, please, or at least some more detail so that I can attempt to track it down? (Don’t want to be accused of being a lazy bastard.) I both do and don’t want it to be true.
Tim Haas
I heard it at a talk in the Scotsman building in Edinburgh at an event organised by the Policy Institute earlier this year. Unfortunately, I don’t recall which of the speakers told us about it. It may have been Duncan Hamilton (a former MSP) but there was also a law professor who spoke along with a couple of other people.
There do seem to be some funny ideas about common law going about in Scotland. But then, there probably are everywhere.
Given the large number of debates in the Scottish Parliament about legislation to displace or supplement common law provisions, it seems pretty unlikely that an MSP could remain ignorant of its existence, even if he were (willfully or otherwise) confused as to its nature.
Frankly, I don’t understand your animus toward your correspondent. He did not ask you to create a list for him, or to “do his work” for him. Nothing about his e-mail indicates he’s a “lazy bastard.” He simply seems to recognize that you’re an expert in this topic, and thus might know off the top of your head where such a list exists — a list that he had already searched for in vain.
In essence, he paid you a compliment, and you demeaned him.
But Tholler, it’s the Net!!
Brian didn’t call him a lazy bastard. He said that Chris Tame would have called him a lazy bastard – which no doubt is true 🙂
This comment if for Alfred E. Neuman! I really don’t appreciate you taking the death of my cousin as “black humor”. I could call you a million things, like a white ignorant bastard…but i won’t! As far as his last name being Stiff, if you weren’t such a ignorant ass, you would know that that is a very common last name in the south and in the midwest, Chicago namely! So i would appreciate it if you wolud keep my cousins name off your fuckin’ fingers while you’re typing!
hiscousin
I would recommend that everyone read “What happened to Justice?” and ” Whatever happened to Penny Candy?” by Richard J Maybury. English common law can be summarized into 17 words: Do all your have agreed to do (contract law) Do not encroach on other persons or their property (criminal law). That is it.
Liberty Economic and Social success in 17 words.
Maybury list them as ” 17 words”
Do all you have agreed to do AND do not encroach on other persons or their property.
Adding the “and” makes it 17.
Contract Law and Criminal / Tort law summarized.