1w ago

Common law seems so stupid

Instead of making laws like normal a judge from a hundred years ago gets to be the authority unless yet another judge decides to overrule them and become the new authority???

7 comments

It grows out of real cases rather than abstract theorising.
- In civil law they still take into account how a law has previously been applied, they just don't get to declare what is often in effect a new law through their ruling

It sounds like something made up for a YA series.

On the contrary, common law recognizes shit that makes obvious sense without a compulsion to construct an entire legal theory in order to justify a ruling.
For example, common law marriage. If two people act for a lifetime as though they are married, but they never actually got married because they’re isolated in the countryside or whatever — it doesn’t make sense that our legal system should hold fast to legal constructs that are at odds with the practical reality which said constructs are attempting to codify in the first place.
It’s a recognition that social practice is the base, and legal/juridical is the superstructure. Not the other way around. If we conceive of the law as defining reality then we have become idealists.
- No socialist country has used common law. Common law being dialectical and civil law being idealist might be the mind boggling take I've ever seen on this site
  
  I said that inverting base and superstructure is idealism. It is a tautology so it shouldn’t be mind boggling.
  I didn’t say that common law is some utopian system of law, or that it is superior to civil law. I only explained why it exists and why it’s not absurd per se.
  Since it is a question of separation between legislative and judicial power, the common/civil law divide doesn’t really map to a divide between capitalist and socialist law. Depending on implementation and circumstances it can be good or bad, for example common law can be used either as a tool of judicial reaction against a progressive legislature, or as judicial progress in context of a conservative legislature.

i think common law stayed around in anglo countries because they have this weird hangup about being an actual real country. see also the UK not having a constitution, but them still pretending it does. or the city of london existing. or the weird american brainworms (present from the moment of founding) about not having a central state.

7 comments