Whatever Happened to Justice Ch 19

Common Law Imperfections

• Common law, despite its merits, wasn't flawless. It was historically riddled with inconsistencies, particularly due to centuries of political interventions.
• American Founders were not entirely supportive of a blind adherence to tradition. They emphasized the importance of reason and experience over unquestioning reverence for the past.
• A significant flaw was the later inclusion of statutes (political laws) to modify common law principles, fundamentally contradicting its original ethos. This stemmed from a belief in majority rule.
• Originating in a period of ignorance and superstition, the common law, especially in its treatment of gender and racial equality, contained profound inequalities.
• Courts of equity were established to mitigate these historical injustices. Their objective was to prioritize principles over precedent.
• Political actors frequently challenged common law principles of non-encroachment, leading to persecution of judges who resisted political mandates.
• The Star Chamber, an oppressive court in medieval England, illustrates the dangers of political interference in justice systems through the use of torture and murder.
• By the 1930s, political laws had effectively overshadowed authentic common law principles.
• Prior to the 1930s, the common law generally functioned effectively. It was largely understood and supported due to alignment with religious beliefs and moral grounding.
• It was a system built on logic, aiming for truth and justice through avoidance of abuse of power.
• Common law predates modern scientific advancements, and historically relied on unscientific practices to determine guilt and innocence (e.g., trial by combat).
• Early common law's methods, such as trial by combat, have been misinterpreted and criticized for being too barbaric, according to some commentators.
• The clergy actively opposed certain common law practices that contrasted with religious principles. Historically, they objected to dueling.

Common Law's Positive Attributes

• Common law, though flawed, was considered the most sophisticated legal framework of its time.
• Common law fundamentally shaped American philosophical tenets and, importantly, the Bill of Rights.
• Its founding principles underpinned the American Revolutionary movement.
• Colonial settlements were explicitly granted rights to common law, including trial by peers.