Talk:Common law/Archive 11

This is an archive of past discussions about Common law. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page.

Archive 5

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Archive 9

Archive 10

Archive 11

Multiple Issues Template

Some sections contain no citations.

Some sections need to have their grammar fixed due them only containing run on sentences. Zimm82 (talk) 07:09, 4 June 2019 (UTC)

Without some diagnostic specificity, the tag was unhelpful. If you want to be helpful, identify something with enough specificity that someone can fix it. Asking others to read your mind, or starting a game of hide and seek, doesn't result in forward progress. If you complain about "grammar" it's helpful to write a sentence that has an ascertainable meaning. BostonBowTie (talk) 21:04, 4 June 2019 (UTC)

Islamic/Sharia law is incorrect

Not all those countries labelled islam/sharia law is correct. Their laws might be influenced by Islamic law but they do not strictly follow Sharia. For example, in UAE alcohol is allowed which is a clear violation of islamic law. Should we make this point more clear? — Preceding unsigned comment added by 67.244.8.32 (talk) 19:27, 7 July 2013 (UTC)

This is an article about "common law," so Sharia/Islamic law is relevant only as a contrast. The fine distinctions among different implementations and country-by-country details are not relevant here. (I could easily see that a section could be added to Islamic Law that parallels common law#Common law legal systems in the present day -- but I have no knowledge that would be helpful to that exercise.)

But even a contrast should be correct. I added the words "based on" and the full details are linked at Islamic Law. Does that cover it?

BostonBowTie (talk) 11:55, 2 June 2019 (UTC)

How much, in form and application, would you say sharia law is similar to canon law?

Trumblej1986 (talk) 04:04, 12 June 2019 (UTC)

Wrongful Death tort

The assertion that wrongful death torts have no common law precedents: no citation is provided, but to a non-lawyer such as myself, I find the assertion somewhat lacking. Is there not precedent within ancient law (Law of Moses or Code of Hammurabi, for instance) that would have been applied to medieval or later decisions? Trumblej1986 (talk) 09:14, 11 June 2019 (UTC)

A citation is provided: a wikilink to wrongful death which explains an answer to your question. To condense briefly, at common law, a dead person can't sue. So a person killed in a car accident, medical malpractice, etc. has a cause of action for the injury, and it exists from the time of the injury until death. But the cause of action dies with the injured person. The innovation of the tort of "wrongful death" is that the survivors have a cause of action for their loss. At any rate, that's what they taught us in law school. If you find a better source, I'm happy to learn something new.

The question is malformed in an important respect: Hammurabi and Moses are irrelevant to common law. Common law is law of judges, and the earliest judges whose opinions are embedded in "common law" are from about 1200. Hammurabi and Moses may have influenced common law, but they're not law in themselves.

The way "wrongful death" works isn't that relevant to this article -- this article is about common law as a process, as a source of law, and interaction with statute. Any particular point of law isn't that relevant.

Thank you for the question.

BostonBowTie (talk) 18:16, 12 June 2019 (UTC)

Thank you for that response. I would clarify that my question was intended, not to question whether such ancient codes were considered common law, but whether judges within common law would have looked to such ancient codes for advice, barring any more recent decisions. My understanding of wrongful death tort (and again, I'm not a lawyer) is based on the claims of loss of income/support/etc that the deceased provided to the family. I think you've largely answered my question, and I thank you for that.-Trumblej1986 (talk) 17:34, 13 June 2019 (UTC)

Yeah. Lots of 19th century novels are about the destitution of survivors after an unjust death of a bread-winner. Before "wrongful death," the law just didn't recognize that survivors had an interest that could be compensated by money.

"Whether judges within common law would have looked to such ancient codes for advice." That's the question, isn't it. Before 1900, the answer was quite uniformly "no." Precedent (of the relevant jurisdiction) was a very strong lock-in, and judges considered that they had very little discretion to exercise. Your question -- looking at other jurisdictions, either geographically or temporally -- reflects the key change in thinking in the early 20th century. BostonBowTie (talk) 20:37, 13 June 2019 (UTC)

Thank you very much for that answer. I appreciate it. Trumblej1986 (talk) 00:06, 14 June 2019 (UTC)

Your questions are really important to understanding the subject. Could you take a look at the article, and see whether the ideas we've been discussing are clearly communicated? It should be in the section The common law evolves to meet changing social needs and improved understanding and Decline of Latin maxims and "blind imitation of the past", and adding flexibility to stare decisis. The way you asked the question suggests you recognize the issue pretty clearly (at least now), and you seem to be a very good test subject to ensure that the article explains it in a way that helps the curious nonspecialist. BostonBowTie (talk) 15:59, 14 June 2019 (UTC)

I promise, I'm not ignoring you, I'm actively reading through the sections to answer your request. The first section does a fairly decent job about showing the evolution of the "dangerousness" of objects and the extension of liability beyond the direct party. -Trumblej1986 (talk) 17:31, 15 June 2019 (UTC)\

Thank you. It's been a long time since anyone was obligated to do something on my schedule!

I think there are two points to be made --

1. The common law is "law" because a judge said so, not because of community or commonsense or historical notions.

2. That changed around 1900 -- before 1880, "the law was an ass," and judges had little discretion to look at any source of community norms or commonsense justice, other than statute and other judges. Since 1920, judges have had more discretion to look to more sources of justice. They're still largely confined to look for "law" to apply only in statute and prior decision, but there's more flexibility to at least consider foreign law, "evolving standards of decency," historical notions, intuitive notions of right and wrong, economic incentives and effects, etc.

BostonBowTie (talk) 18:03, 15 June 2019 (UTC)

I'm glad that BBT added a good law review article to support the original proposition, which Trumble was right to ask for. Other Wikipedia articles don't constitute reliable sources for our purposes, per WP:CIRCULAR. White Whirlwind 咨 00:15, 1 November 2019 (UTC)

comparisons with civil law systems

https://qr.ae/pNsZrO

https://www.vistra.com/insights/common-law-vs-civil-law-rough-guide-your-business

--Espoo (talk) 16:44, 30 July 2020 (UTC)

Multiple meanings of the term 'Common Law' and significance of capitalization

The term 'Common Law' has many different meanings. The original meaning is simply the supposed and then-allegedly homogeneous law, oral and written, throughout England prior to the Norman conquest in 1066. The supposed homogeneity of these laws is why it is called "common." When William conquered England, he declared that he didn't want the laws changed. Due to the role of the courts, a role that English(Anglo-Saxon) courts largely had since the Fall of the Western Roman Empire when there were many competing legal codes in England, this gave judges tremendous power to declare what the law was. This power led to the courts often becoming de facto legislators and gradually led to the term "common law" referring to a system where judges rulings set precedent. When "Common Law" is capitalized, the term either refers to the supposed and then-allegedly homogeneous law, oral and written, throughout England prior to the Norman conquest in 1066, or it refers to the concept of a system of judge-made law via precedent. When "common law" is not capitalized, the term refers to a particular system of judge-made law and precedent that differs from the traditional one of Medieval England. For example, one might say that "The Social Security Administration's recent rulings regarding appeals for disabled people are creating a new common law." I think these distinctions should be emphasized. CessnaMan1989 (talk) 19:04, 8 September 2021 (UTC)

If this isn't original research, and there is reputable sources which say this, then I think you should add it in. Be bold! Nauseous Man (talk) 23:08, 8 September 2021 (UTC)

@Nauseous Man: Thanks for the encouragement! My main source would be "The Common Law" by Oliver Wendell Holmes Jr., and the capitalization issues would mainly come from various style manuals that journals use. CessnaMan1989 (talk) 00:07, 9 September 2021 (UTC)

The common law in England emerged gradually during the 12th century, and I strongly doubt that Oliver Wendell Holmes, 1881, can be considered a good source for its 'original meaning', even with caveats such as "supposed and then-allegedly". By all means add some explanation of the different meanings, but referenced to modern not 19th century scholarship. A distinction via capitalization may be made in some style guides, but that's far from usual, and I would say that in the UK at least few modern writers capitalize the words at all. MichaelMaggs (talk) 09:06, 11 September 2021 (UTC)

Distinctions between 'common law' & 'English Common Law'

Tomlin’s popular law dictionary 1838 gives 'common law' as the term used for the law of the kingdom of England, simply “without other laws” as it was generally administered before any known act of Parliament made to alter or qualify it. Blackstone's commentaries divides the municipal law or rule of civil conduct into two kinds the lex non scripta, the unwritten, or common law, and the lex scripta, the written, or statute law. The main article mentions common law as (judicial precedent or judge-made law) where in fact this body of law came about after magna carta forming a system of law called "English Common Law" which is only a type and shadow of 'common law' because it is based on complaints that can only be legally determined rather than the claim of a man in 'common law' under oath that stands as the truth and as law if determined independently of a judge or magistrate before a Jury. — Preceding unsigned comment added by 123.100.40.65 (talk) 13:15, 20 February 2020 (UTC)

Dear 123.100.40.65 -- to the degree your sentences are clear enough to have any meaning, they're wrong, as explained in the article. For example, common law originated about a century before Magna Carta. Common law was always the law made by judges. Common law is written. Even if "Tomlin's popular law dictionary of 1838" might have been a current view in 1838 (which, if your paraphrase is accurate, it wasn't), it's irrelevant after about 1920, except as a historical relic. BostonBowTie (talk) 00:39, 10 March 2020 (UTC)

Dear BostonBowTie -- maybe see a bit of the world before you declare something a "historical relic". 123.100.40.65 is entirely accurate in South Africa, at least. Today, not just 100 years ago. — Preceding unsigned comment added by 105.184.158.58 (talk) 09:02, 18 February 2022 (UTC)

Strong doubts: Lots of claim, lots of sources but hard to follow

The Common Law subject is quite miss-understood. A lot of people claim some rights here, but its not well recognized what its true. Now this page is quite big and heavy to read. Trying to look back at the source is quite hard as well, since there are so many listed. So at first glance, this could very well be a lot of fake claims hidden in too much information. I don't think that's per Wikipedia's recognized quality. In general, I come to wikipedia and I trust the information is near complete and true. Not on this page. — Preceding unsigned comment added by MathieuJobin (talk • contribs) 14:10, 3 January 2022 (UTC)

You are quite right – this article is not remotely adequate. Its current sorry state seems to be the unfortunate end result of a past series of heated arguments between several editors with extremely strong and fixed opinions. Battling editors do tend to multiply dictionary definitions, examples, and sources to support their entrenched positions, with the results that you see. I'd love to see a new group of neutral collaborators working together to improve the article, but the work involved would be substantial. It may well be that legally knowledgeable editors who could take this in hand simply don't want to get involved in lengthy arguments. MichaelMaggs (talk) 23:11, 3 January 2022 (UTC)

@MichaelMaggs: Ding ding ding, we have a winner. White Whirlwind 04:44, 4 January 2022 (UTC)

I agree with all of you that this article is a mess. The larger problem is that WP admins are too reluctant to ban editors who are clearly acting in bad faith. That's why the last round of discussions on cleaning up this article became such a mess. Those editors need to be permanently banned first, then the article needs to be reverted back to the last good version around 2015 or 2016. --Coolcaesar (talk) 06:40, 4 January 2022 (UTC)

I agree as well; I noticed that sections 1.5 and 2 are filled with controversial jurisprudential claims (mostly from an American legal realist direction) presented as consensus. Iowalaw2 (talk) 16:48, 17 January 2023 (UTC)

Dear Iowalaw2: I see you're still a student. You use the word "realist" and "consensus" as if there were some opposition or contrast between them. Law schools still mention the "realist" vs "formalist" contrast that held some currency, oh, 120 years ago. But it was pretty much settled by WWI, and I doubt anyone these days teaches anything other than the "realist" case law approach today. Certainly no lawyer practices under the "formalist" approach -- it's a quick way to lose credibility. Today, in any meaningful, practical sense, "realist" is the "consensus!" DCLawwyer (talk) 18:21, 8 February 2023 (UTC)