How Common Law Works, In Theory One case at a time: Common Law of Battery One person pummels vs. Other Subjects: another. • Crimes One person vs. pummels another in • Procedure defense. • Divorce One person • Torts (injuries) vs. pummels another to expel him from the • Property land • Contracts How Common Law Works, In Theory The common-law orthodoxy Note that there are other ways to find answers to cases: • Study the problem? (engineering) • Appease -- take a poll? (populism) • Consult interest groups (power structure) (Not what is being advertised. The Elders can deduce the solution through wisdom, experience and knowledge) Common Law Orthodoxy Important things to keep in mind: -- The case results have a rationalization. Unlike statutory law, the lawgiver demonstrates why the law is CORRECT -- The body of decisions that build up are thought to be a kind of KNOWLEDGE -- In the early period (through the 1600s), the decisions take the form of MAXIM or PLATITUDE “genre” Review of Common Law Orthodoxy Battery -- Case #1: someone beats someone up: The Elder’s resolution: “The right to swing one’s fist ends where the other’s nose begins” Basic Idea: maxim or platitude extracted from a preferred cultural tradition by the Great Elders – the keepers of the sacred practices. Review of Common Law Orthodoxy Battery -- Case #2: someone beats someone up who was trying to beat him up: The Elder’s resolution: “He who protects his body is without wrong.” Self defense Review of Common Law Orthodoxy Battery -- Case #3: someone beat s up a trespasser his own property: The Elder’s resolution: “He who owns reality can eject trespassers with force after warning.” Right to expel trespassers Review of Common Law Orthodoxy Advertisement for the Orthodoxy -- Sacred cultural tradition as known and KEPT by “Elders” Literary Image: The Council of Elrond -- The claim is that ALL kinds of disputes could be resolved this way. -- The resolution was “correct” and the collected decisions themselves constituted a kind of “knowledge” Example of the Orthodoxy Let’s try an example vs. Tipping at a restaurant Question: Question: Imagine two cases. Do you have a duty to tip to #1. A person unjustly refuses at a at a restaurant, can leave a tiprestaurant if you and the afford sues if the service waitress it andthe person. was good? #2. An employer confiscates a tip left for the waitress, and the waitress sues. Everyone Votes! 1. Can’t sue for anything. 0 2. Can sue only for 0 confiscating tip 3. Can sue for both situations 0 What is the ruling: 1. tip confiscated 0 2. tip not given 0 0 Example of the Orthodoxy Let’s try an example vs. Tipping at a restaurant vs. Tipping at a bar Question: Same issue, only it happens at a bar – how would you resolve this one? bartender’s right to receive a tip 0 0 0 Example of the Orthodoxy Let’s try an example vs. Tipping at a restaurant vs. Tipping at a bar vs. Tipping at Star Bucks Question: Same issue, only at Star Bucks Example of the Orthodoxy Let’s try an example vs. Tipping at a restaurant Question: vs. Tipping at a bar Same issue, only a buffet – how about now? vs. Tipping at a Starbucks vs. Tipping at a buffet *input prior question buffet tipping? 0 0 0 Example of the Orthodoxy Let’s try an example Common Law of Tips Mention Casuistry vs. Tipping at Sub Way vs. Tipping at Meijers vs. Tipping your professors Example of the Orthodoxy The Critical Issue -– Note that there is one critical issue in all of this … Question: Is there a logic to tipping? Question: That is, can logic sort out all of the acts and practices of Or is this culturally tipping? determined and necessarily peculiar? correct answers to tipping 0 questions? 0 A tipping logic? 0 On Method and Correctness The Point: -– The common law method takes up an issue one case at a time. -- Each case is decided with a principle. -- That principle is further elucidated in subsequent cases -- Until, finally, the principle is formed into a complex rule Casuistry -– Enthymeme: there are “correct answers” or a logic to the matter.
Pages to are hidden for
"howcommlawworks"Please download to view full document