Genuis Of The Common Law

For the last couple of generations the US has been adding new laws at an exponential rate covering all manner of issues and concerns to some groups.  They range from EPA laws and those vast regulations to the new CFPB with its laws and regulations regarding real estate laws and the mortgages that protect lenders in real estate lending.   Those are only a couple of the examples.    Virtually every State now has a version of the Uniform Commercial Code that regulates all manner of commercial and banking transactions.  Those laws used to be covered under what were known as the law of Bills and Notes.  Indeed only 50 years ago law students took a course called just that.   The real estate laws have been historically a matter exclusively within the purview of the respective States under the recognized “police powers” of the States to regulate their own internal affairs for both criminal law and private property rights and laws of contract interpretation.   Except for Louisiana which had the Napole0nic Code all the States utilized the Common Law from England.   That Common Law and its few companion laws has served us very well for about 500 years and still can if allowed to work as intended.

The Common Law was designed and evolved to be a constantly changing system of judicial interpretation of the laws to meet the every altering facts of modern life.   There were few statutes but there was the precedent of prior case law to guide.  The law was changed slowly as it always should be to make sure the new interpretations fit with the needs of society and the needs of commerce among merchants and individuals.

Unfortunately today if you asked the typical twenty-something they would think that the EPA laws and regulations are the only thing that protects individuals from harm by polluting neighbors be they companies or individuals.  Everyone wants clean air and water to be sure.   The Common Law has provided a remedy for such an issue for centuries.  Two hundred years ago if you had an upstream neighbor, say a plant in the Midlands in England or Connecticut, that was manufacturing dinner ware and their production methods dumped polluted materials into that stream that crossed your property and harmed your cattle and crops you were not without remedy.   You could sue them.  People then as now did not want to be poisoned with bad air or fouled water.  Mostly it would have been a suit for nuisance and it could include damages if they injured you or your property.  The courts even then under the Common Law could issue and injunction against the offender to cease and desist.  The local Sheriff could and would enforce such injunction.  There is really no pollution issue today that couldn’t be remedied by private suit under the Common Law.  Individuals, cities, States, anyone suffering injury, could bring such a suit.  The same remedy would be available for air pollution.   Other than research and gathering of data why do we really need the EPA?   The Common Law has had a well established set of Riparian rights to control and litigate the rights to water and its purity for centuries long before any bureaucrat set to work.

Likewise consumers have for centuries been able to protect themselves from fraudulent activity by business.   There are several different types of fraud that have been recognized by the  Common Law.  The recent brouhaha over alleged mortgage abuse and violations of the Rules of Evidence is another prime example of the relief the Common Law affords the average Joe.  If indeed a borrower was deceived by a crooked lender then the mortgage would be void under the various fraud provisions of the Common Law and the lender would not have been able to prove the validity of the mortgage under the companion Rules of Evidence and thus would have been denied foreclosure.

We have been on a path of abandoning centuries of collected wisdom for passions and expediences of the moment for a perceived wrong without remedy when a remedy is in fact available.    Advice for the future generations, always look with a skeptical eye when some group says we need a sweeping overhaul of some major portion of our laws.  First of all it is usually some interest group behind it and their lawyers looking for work and a special bailiwick for their future careers because they can claim that only they understand the new law which they made zillions pr0moting and then drafting.   Inevitably such new sweeping laws create a new bureaucracy which then of course always sees future issues to resolve and regulate or else they are out of business.  As so much in life follow the money and see who benefits from these new laws in addition to the alleged benefit to the consumer or society in general.

Lord knows we have enough lawyers in the country to bring cases for alleged wrongs.  We are allowing a very tried and true system that still exist to whither away while we create vast new bureaus, agencies and boards with powers that the bureaucrats and the specialists in their domain to seek to constantly expand.    Yes our water and air are cleaner now than 50 years ago but that is NOT because of the EPA.  The same result could have and likely would have been attained by the use of the Common Law.   If you doubt these comments you are invited to research  the Common Law yourself.   That system worked exceedingly well.  Some cases may have turned our badly due to corruption or bad judges but the system was sound.  Today we still have to deal with corrupt bureaucrats or incompetent ones and a system that “we” have very little control over because the average Joe is not in the decision-making loop.  But under the Common Law the average Joe and all his thousands of cases were at the heart of the law-making process and over time it always got it right.

“Every wanton  and causeless restraint of the will of the subject, whether practised by a monarch, a nobility, or a popular assembly, is a degree of tyranny.”  Sir Wm. Blackstone, 18th century judge and commentator on the Common Law.


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