(FB 1550075235 Timestamp)
ORIGINATION AND DEVELOPMENT OF THE COMMON LAW
—“Hey Curt, there’s a question I have been wrestling with for a while regarding your work. It’s about discretion versus judge discovery law. In common law I have understood the idea to be, that judges look at previous cases of decisions in similar incidents of parasitism and make informed judgements based on that history. But how are not the original, “inaugural” decisions with no historical precedence not entirely reliant on that said judge’s discretion? … Thanks in advance!”—Alex, your friend.
A number of dependencies require clarification to answer this question:
0 – There is only one law in tort: reciprocity.
1 – The test of property is investment.
2 – The court is reluctant to transfer title (possession) and make itself a participant in a crime – which would harm the law, the people, and the profession.
3 – Because of evolution of our civilization, earlier cases are always more ‘rudimentary’, with law ‘cumulative’ (increasing in complexity with the complexity of the division of knowledge and labor)
4 – Judges are ‘informed’ by prior decisions so that they don’t have to do all the work all over again of being smarter than all other judges in all other matters (they consult the market for judgements).
5 – Because of the competition between judges over time in a multitude of similar cases, the market for decisions tends to resolve on constant judgements. (more than tends, actually) just as markets for goods resolve on prices, just as markets for scientific knowledge resolve on theories.
6 – Original criteria (sovereignty, reciprocity, property etc) developed over time, such that what we understand today (investment, reciprocity, voluntary transfer etc) is the result of the empirically cumulative record of judgements over time rather than design. (See the three books on the law in my reading list which discuss the ‘messy’ evolution of the common law.)
… – Milsom: Natural History of the Common Law.
… – Plucknett: A Concise History Of The Common Law.
… – Hayekâs: The Constitution of Liberty.
7 – The common law evolved because of ancient western indo european (european) sovereignty, truth, duty, and militia (everyone fights) is the principle difference between civilizations, and because the west consists of kinship and shareholder militias federating into armies.
8 – The state began interfering (disintermediating) in the common law in the late middle ages in order to enforce the king’s policy when unifying territory. this is the primary reason for law codes: consolidation of different groups and territories by producing standard weights and measures of justice (conflict resolution).
9 – Under both Roman Law, Divine Right, and Democracy, legislatures have sought to corrupt common law (tort) into a single ‘non logical’ law. Rather than that tort always remains, and all legislation and regulation must maintain the law of torh (reciprocity).
10 – this was exacerbated by the juridical relativists (american) in the 1800’s particularly in response to the suppression of the south after the civil war, and in the 1900’s by the jewish and ne protestant attempt to undermine the constitution in order to bring about socialism.
11 – Worse, the american constitution would require:
(a) An explicit declaration of reciprocity as the basis of all law.
(b) The inviolability of tort and therefore reciprocity.
(c) The binding of the legislature to tor (contract production not law production.)
(d) The requirement that such law be strictly constructed (justified as adherent to tort, and reciprocity)
(e) That any legislation (contract of the commons) pass the court as lawful (in other words, all legislation is immediately subject to suit)
(f) That the court require legislators revise legislation found faulty, rather than ‘creating’ new legislation from the bench (not law). (Legislation must be returned to the legislature who has only so many days before
(g) That the monarchy (or ‘president’ or ‘nobility’ or ‘people’ or whatever) possess rights of veto over any and all legislation.
So, I think I have pretty thoroughly answered the question of the origination and method and means of correction.
I hope this helps.