The Law – Common or Not?

Neil Harding popped by to make a comment on my civil liberties entry last night. I was a bit surprised as this was several days ago and I’ve slept since then. However, what he said, I feel, warrants more of an airing than it will get on an archived entry. Indeed, if Blog-City allowed such a system, I’d turn off comments after a set period anyway. Still, back to the comments:

“”My civil liberties are to do exactly as I wish providing I hurt no one else.”

Unfortunately doing exactly as you wish rarely hurts no-one. The point I was making is that there is nearly always a balance to be had with any action.

This appeal to common law is meaningless guff. Explain why this ‘untouchable principle’ is worthwhile? Just because something was written down hundreds of years ago, doesn’t mean it is worth upholding. This is the same argument religion uses and look at the nonsense that is in the bible.

“A new study suggests the use of handguns in crime rose by 40% in the two years after the weapons were banned.”

The increase in firearm incidents is linked to increased use of replica, paintgun, airgun and other less lethal firearms that are still legal (sorry, Neil, this link doesn’t work), which is a convenient omission for a organisation like the Countryside Alliance (frequently backed by the Daily Mail) that represents the shooting community.”

I’ll admit I was somewhat brusque with my retort – I used the word “rubbish” and I make no apology for doing so. And I don’t use the Daily Mail as a source… Ye gods, the man knows how to wound.

Neil is not alone in rejecting the idea of traditions and concepts that are old. To an extent, I share the logic. When someone tells me that they do something because it is traditional, all too often they are telling me that they haven’t stopped to think it through for themselves. Often the rationale for tradition will be lost in the mists of time and have no relevance – apart from a warm inner glow – in the modern world. If people want to indulge in tradition though, then that’s fine by me – just don’t expect me to follow blindly. I will question and delve, seeking rational answers as to why we are doing things. Doing so does tend to get me a reputation for being an awkward bugger, but I’ve got broad shoulders, I’ll live with it.

When Neil draws a parallel between the Bible and common law, he is drawing a comparison between a constantly evolving method for dispute settlement that has been with us since the time of Henry II, and a book that started as an oral system of story telling several thousand years ago before being consigned to the written word and was finally put into its current format in the fourth century – and hasn’t changed over much since. You can’t really draw a comparison; unless we lived in a Theocracy and our legal system was based upon the law of God. We don’t; it isn’t; so the comparison doesn’t hold up.

There are two systems of law in the UK – Statute Law; passed by act of parliament and common law; the law between men. Common law was a system used in mediaeval England to enable the King or his representatives to settle disputes. Okay, so it is the best part of a thousand years old and is steeped in history and tradition. Does this mean that it is past its sell-by date and should be ditched? Of course not. If it works, and it ain’t broke, why try to fix it or replace it? Just because something is old it doesn’t mean that it is no longer relevant.

The underlying principle of common law is this: We all (every one of us) owe a duty of care not to cause injury to our neighbour. Failure to do so is an actionable tort. There is a parallel in the Hippocratic oath; Do no harm. Is that out of date and should that be ditched too? As a principle it is timeless.

Common law may be old and the precedents set may also be old – but a test case will create a new precedent, so the law is updated. Common law is as fresh today as it was when first conceived by the Angevins. To suggest that it is no longer valid in our current society is wholly wrong headed. I can understand why ZANU Labour might want to ditch its principles – it is far too inconvenient in the control freakish new world that they seek to impose upon us. After all, the awkward squad; those damned free thinkers of the libertarian persuasion rely on it to define their right to do pretty much as they please. And we can’t be having any nonsense like that; it’s far too untidy in the new world order. ZANU Labour requires drones who do as they are told, not people who think for themselves and – godammit, do what they want.

Er, actually, yes we can do pretty much as we please in a common law system providing it hurts no one else and some of us will complain loudly about our liberties being eroded. And so we should. Providing we do not injure our neighbour, that right to do as we please must remain sacrosanct and we must vigorously defend it or we commit future generations to blind subservience to the state – and that really would be appalling.

No one has yet come up with a rational explanation as to why my liberty should be removed. I am waiting, but not holding my breath.