howcommlawworks by Wittgenstein

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									     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.

								
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