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Today’s Lecture: Common Law, Courts & America 1. Law in Rome 2. The Development of Courts and Common Law

Lecture Organization: Class Announcements Review & Clarification Historical Development of Statutory Law the High Seas Historical Development of Courts & Common Law in England Another Example of the Orthodoxy Bonham’s Case The Basis of Legality Time

Class Announcements Online Lectures -- Slight delay. Posted this week Class Participation -- Please don’t forget to drop comments in the right box Multiple-Choice Questions -- There will be a policy change announced today -- point system for each type of question will be different. (true false, multiple choice, book or lecture)

Class Announcements First Quiz Posting -- Looks like next Monday -- multiple choice questions should be given to me by Thursday at the latest. Forgetting Attendance Sheet -- Let me know when that happens Case Briefs -- One due today; keep watching “course alerts” Questions? Time

Review and Clarification Poor organization -- not terribly happy with my organization of the first lecture Basic goal: -- develop two basic ideas about the foundation of law in legislatures as opposed to courts Legislatures Courts Time statutes decisions

The Historical Development of Statutory Law Power of Statute -- originated with Kings under absolute monarchy -- slowly, over time, Parliament came to share this power -- After the English and American revolutions, legislatures came to have this power, with kings/executives having veto power note on terminology: -- Legislatures, Parliament, Congress, “political assembly” or “the assembly” (sometimes used interchangeably)

The Historical Development of Statutory Law Power of Statute other names for this kind of law: -- “codified” law (“code books”) -- statutory law -- “statutification” (proliferation of statutes) verbs for who is wielding this power Legislatures King proclamation (ing), decree (ing), pronouncement enacting, passing, legislating

The Historical Development of Statutory Law Important Events in the Philosophic History of Statutory Law: State the Law! Twelve Tables Code of Hammurabi -- formal articulation two important things: notice of how to comply (expectations clear) an externalized rule or a standard (“law” is something concrete that sits apart from the intention of the sovereign)

The Historical Development of Statutory Law Important Events in the Philosophic History of Statutory Law: Universality? Dispensing Power Statutory Law Slavery -- certain people were above the law, certain people below it -- an important innovation will be the idea that lawmakers are subject to it, and that everyone receives it equally

The Historical Development of Statutory Law Important Events in the Philosophic History of Statutory Law: Does it require a basis? -- fascinating question .. does legislation have to be fair? does it have to be cogently reasoned? does it have to be the best solution possible? does it have to be compelling? does it have to be empirically justified? does it have to be wise?

The Historical Development of Statutory Law Important Events in the Philosophic History of Statutory Law: Does it require a basis? … answer seems to be “no” -- whoever has this power gets to COMMAND. -- there might be some commands that people have theorized are not allowed (violating God’s law? violating fundamental law? violating the constitution?) -- so long as the command is not one of those, there is no requirement that the statute be properly reasoned, well supported, reasonably necessary, enlightened, consistent with tradition, etc etcetc.

The Historical Development of Statutory Law Important Events in the Philosophic History of Statutory Law: Does it require a basis? … answer seems to be “no” No justification is needed for the use of the power Terminology … statutory law is “non-justificatory”

The Historical Development of Statutory Law Important Events in the Philosophic History of Statutory Law: Who wields this power? -- early on … Kings, through divine right -- later on, Kings and Parliaments share it -- finally, the political assembly has it

The Historical Development of Statutory Law Important Events in the Politics of Statutory Law: Roman Land Reform -- the enactment of land reform was LEGAL -- the statutory law allowed for it -- but, paradoxically, it was also LEGAL in Roman politics/society to enforce the domination of powerful, elite social clans. -- hence, the public “clubbing” The Rule of the Will of Powerful Clans Might Makes Right

The Historical Development of Statutory Law Important Events in the Politics of Statutory Law: King Henry VIII -- God’s law as declared through the Pope did not allow for divorce -- Henry VIII gets rid of the catholic church and starts a new church (Church of England) -- Quandary in medieval legal thought … where does law come from? Who is the ultimate authority – God or man? -- “I am the sovereign” Time

Historical Development of Courts & Common Law in England Courts as administrators -- courts tended to be creatures of the sovereign -- Consider the phrase, “The King’s Court” (King’s courtyard) Various names: Magistrates Chambers Councils procurator The Sovereign Privileged participants: Clergy Aristocrats “courts”

Historical Development of Courts & Common Law in England Improving the court system in the realm -- Henry I (1100-35); Henry II (1154-89) -- Basic concern: improve how disputes were being handled in the country -- make the customs and traditions uniform (“common law”). Magna Curia Writ System Knights and their methodology Inns of Court Scrolls and Monks

Historical Development of Courts & Common Law in England Development of the Court System -- over time, an elaborate court system developed: Court of the Common Pleas (1230) --recognized 500 different kinds of actions -- could issue awards for money damages, try criminal cases (this is what PA calls its trial court) Court of the King’s Bench -- appellate Court

Historical Development of Courts & Common Law in England Development of the Court System Court of Exchequer Pleas -- tax court (specialized court) -- Exchequer was the equivalent of the Treasury or perhaps IRS today (the King could not trust the ordinary judges with his money)

Historical Development of Courts & Common Law in England The common law orthodoxy -- I had mentioned that the use of authority is always accompanied by a rationalization about why the authority is legitimate “regime ideology” -- when the King of England was starting these Courts in medieval times, the rationalization was metaphysical -- in order to understand the psychology of this rationalization, I put a psychological image in your head: “The Elders” Gandalf Council of Elrond

Historical Development of Courts & Common Law in England The common-law orthodoxy -- This advertisement for “law” was different from what I had mentioned earlier JUSTIFICATORY The Elders were claiming to have the right answer They were the keepers of the sacred traditions and customs of the polity The right customs, the right way to do it Also claiming “Right Reason” Law must be “correct”

Historical Development of Courts & Common Law in England The common-law orthodoxy One case at a time: Common Law of Battery Other Subjects: Crimes Procedure Divorce Torts (injuries) Property Contracts vs. One person pummels another. One person pummels another in defense. vs. One person pummels another to expel him from the land vs.

Historical Development of Courts & Common Law in England 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)

Historical Development of Courts & Common Law in England The 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”

Historical Development of Courts & Common Law in England The common-law orthodoxy Precedent Another thing: -- Each decision is called a “precedent.” -- Note the grammar: -- The decision PRE-cedes the outcome -- Theoretically, if the decision was simply made up, contrived, expedient, or is a sort of Band-Aid, it should be called … antecedent?

Historical Development of Courts & Common Law in England The development of an ideology about precedent -- Over time, as common law develops, there begins to develop an ideology about precedent -- The idea is that setting a “precedent” is an important event -- precedents shouldn’t be broken – shortened for a longer Latin phrase that means “to stand by the decision and not to disturb that which is settled.” Stare Decisis

Historical Development of Courts & Common Law in England The Development of Equity “Mechanical” jurisprudence “formalism” -– people might lose a case because of a technicality -- (e.g., suing for an injunction instead of damages) -- the precedent says “no,” so its no. Court of Chancery (1474) Courts of Equity -– the “keepers of the King’s conscience” -- staffed by clergy (priest) -- applied general standards of fairness rather than legalistic formalism – could overrule the common law courts.

Historical Development of Courts & Common Law in England The Development of Equity -– Hence the saying, “I violated the rule for reasons of equity” (e.g., syllabus example) Explain the way it is today: -– Legal and equitable rules were merged into one court system. There is no longer two different court systems (law and equity) -- there are, however, legal and equitable relief. You just seek both under one house.

Historical Development of Courts & Common Law in England Notice how important the ritual of precedent is -- What distinguishes what Courts do is that they consult their past Compare: Congress -- When Ted Kennedy has to decide how to vote, he doesn’t have to consult the reasons for his past moral choices to make the current choice adhere to it. -- In theory, He can innovate. He can double talk. He can change directions with the power center or the wind.

Historical Development of Courts & Common Law in England Notice how important the ritual of precedent is Compare: Board of Directors -- Whether they should raise prices or offer stock options isn’t theorized to be based upon what they have done in the past (e.g., you can only do it if corporate tradition allows it) -- It is only Courts that appear to be concerned with this way of deciding. Time

Another Example of the Orthodoxy Let’s try an example vs. Tipping at a restaurant Question: Let’s imagine one day that the Corner Restaurant begins confiscating waitress tips without telling the customers. A suit is fled before the elders. How would they resolve this? Question: Do you have a duty to tip at a restaurant if you can afford it and if the service was good? Question: What should the tip amount be? Question: Why?? Question: How do you know this?

Another Example of the Orthodoxy Let’s try an example vs. Tipping at a restaurant vs. Tipping at a bar Question: Same issue, only a bar – how would you resolve this one?

Another Example of the Orthodoxy Let’s try an example vs. Tipping at a restaurant vs. Tipping at a bar vs. Tipping at a buffet Question: Same issue, only a buffet – how about now?

Another Example of the Orthodoxy Let’s try an example Common Law of Tips vs. Tipping at a restaurant vs. Tipping at a bar Question: Same issue, only at Star Bucks vs. Tipping at a buffet vs. Tipping at Star Bucks

Another Example of the Orthodoxy Let’s try an example Common Law of Tips vs. Tipping at Sub Way Tipping at Giant Eagle vs. Tipping your professors vs.

Another Example of the Orthodoxy Other possible examples Interference in Football or Hockey The Strike Zone in Baseball The proper tax rate? Giving due process to enemy combatants

Another Example of the Orthodoxy Alternative ways to resolve this Study it? (engineering) Take a poll? (populism) Consult interest groups (power structure) Time

Bonham‘s Case Facts Dr. Bonham wants to be a physician To do that, he has to go to the Royal Academy of Physicians (“medical school”) “leeches,” “blood letting” (today, “alternative healing?”) To be given a license for this, you had to be admitted to the college – something that not all people had the right or opportunity to do Bonham bypasses the college and starts doing it himself Question: What are the facts of the case? (Distinct class participation) Question: What was medicine like in those days? Question: What happens next? The college can act as the police and can arrest you and punish you. (The academy polices violators).

Bonham‘s Case Holding Lord Coke -- And it appears in our books, that in many cases, the common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void; and, therefore, in 8 E. 3. 30 a. b.” Maxim: “No man can be his own judge.” The college cannot prosecute this matter “The common law and common reason are one” a priori reason dictated the answer Quote from Lord Coke: Question: How does the case come out? Courts have judicial review? Parliament cannot violate fundamental justificatory law (fundamental natural law?) Caveat: No English Revolution yet

The Basis of Legality --Bonham’s case raises an interesting question: what is the basis of law? -- Is it different for statutory law versus judge-made law? On the separation of law from politics -- early thinkers tried to separate “law” from politics -- “law” in a grandiose sense of talking is something that should be above politics

Notion! … Law and Politics are Separate? The statutory power The justificatory power Politics “Law” divorce contract property equity War Taxes Police State Order

The Basis of Legality The American Answer -- American constitutionalism has an interesting answer to this question 1. Separation of Church and State 2. Tie the statutory power to popular sovereignty 3. Legalization of Fundamental Law (Bill of Rights) 4. How America would handle Bonham’s Case: Question: For Gryffindore points -- how would America handle Bonham’s case?

The American Answer No overturning the statute unless it is a Constitutional violation, not a common law violation Today, common law is below a statute But the Constitution is above a statute Bonham would have to show a violation of constitutional text

Politics “Law” The statutory power The justificatory power Recurring Elections Lobbying Structured Conflict Constitution Common Law War Taxes Police State Order Epistemology? A calculus of some sort?

Hamilton -- Judging is Special? 1. Hamilton Federalist #78: Don’t fear them: (1) They possess neither the purse nor sword; (2) They reach their decisions neither by force nor will, but by judgment. 2. Federalist # 47: Madison (quoting Montesquieu) “were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.”

SOCIAL CONTRACT King’s Old Power Political Marketplace Popular sovereignty Q: who is the sovereign in America? A: it’s a riddle. Elder’s Old Power? Epistemology? Technical craft? Codified in the Contract; Preserved by the elders?

SOCIAL CONTRACT King’s Power Popular sovereignty Q: who is the sovereign in America? A: it’s a riddle. Natural Law Codified in the Contract; Preserved by the elders? Time

Introduction to Philosophy Terms 1. Philosophy’s Mission 2. Epistemology 3. Justification 4. Paradigm 5. A priori (a) foundational (starting point) (b) certainty (something undisputable)

Class Announcements 6. Founding Fathers: Socratic epistemology (a) Truth is external to the believer (go find it) (b) Greeks 7. Jurisprudence 8. Natural Law and Positivism Time

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