An unspoken war on the Common Law

Discuss the difference between Common Law and the Statutory Acts made by the Powers that be, (PTB)

An unspoken war on the Common Law

Postby holy vehm » Tue Mar 26, 2013 10:05 pm

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England’s rights-respecting Common Law is being shunted aside by new forms of
arbitrary, inquisitorial power. It’s time for a fightback.

For centuries, jurists have argued that the English Common Law is the best for liberty. In the fifteenth century, the judge Sir John Fortescue wrote that English law is ‘not only good but the best’ (1), contrasting the public jury trial of the English court with the torture-ridden, summary and secret proceedings on the Continent. In the 1700s, jurist William Blackstone argued that while Continental law fomented ‘arbitrary and despotic power’, the Common Law preserved the liberty of ‘even the meanest subject’ (2).

This wasn’t just national vanity; the French agreed. Montesquieu held England up as the ‘one nation in the world which has political liberty as the supreme object for its constitution’ (3), while Voltaire wrote that ‘the English are the only people on earth who have been able to prescribe limits to the power of kings by resisting them’ (4).

How times have changed. The realm of the Common Law abounds with laments about the loss of ‘fundamental freedoms’ and ‘age-old liberties’. In The Assault on Liberty, barrister and MP Dominic Raab identified a ‘tectonic shift in the relationship between the state and the citizen’, which is ‘inflicting lasting damage on the very bedrock of what it means to be British’. Conservative MP David Davis resigned his Commons seat in protest against the ‘insidious, surreptitious and relentless erosion of fundamental British freedoms’.

Our Common Law cousins in America complain of the same problem. In The Tyranny of Good Intentions, Paul Craig Roberts and Lawrence M Stratton chart the steady ‘erosion of the rights of Englishmen’ on American soil (5). While law once provided protection for the individual against the arbitrary power of the state, they argue, law now furnishes a weapon for the powerful to use as they please. In The Collapse of American Criminal Justice, William J Stuntz says the rule of law has ‘collapsed’: ‘Official discretion rather than legal doctrine or juries’ judgements came to define criminal justice outcomes.’ (6)

Indeed, we have reached the situation where British citizens arguably now find themselves with fewer legal protections than their Continental peers against the arbitrary power of the state, which would have been unthinkable to the likes of Blackstone or Montesquieu. What befell the Common Law?
Bypassing the court

One major shift has been a bypassing of the court, in favour of various forms of summary or concessionary justice. This is an historic change: Blackstone described trial by jury as ‘the glory of English law’, and the public jury trial became the primary form of trial in the twelfth century, a time when Continental Europe was developing an inquisitional system based on the free use of torture. Medieval English courts enjoyed significant popular legitimacy, and people were accustomed to ‘go to the law’ to defend their rights (7).

Yet now, in both Britain and America, the justice system is increasingly geared towards avoiding the court at all costs. In America the impartial jury trial has become a rarity, with some 95 per cent of criminal cases decided in advance by plea bargaining (where the defence agrees to plead guilty, and avoid a trial, in exchange for concessions). As Roberts and Stratton outline, the legal process becomes a stitch-up between defence and prosecution, and the court appearance a mere formality. Innocent defendants may be pressured to settle, and indeed the innocent sometimes ‘roll a lot easier’ than the guilty. Meanwhile, guilty defendants may confess to a more minor offence to avoid more serious charges, which amounts to ‘having people admit to what did not happen in order to avoid charges for what did happen’.
"A ruler who violates the law is illegitimate. He has no right to be obeyed. His commands are mere force and coercion. Rulers who act lawlessly, whose laws are unlawful, are mere criminals".
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