Four legal questions (1 Viewer)

[Karl_O]

These are legal questions, so no political (especially historical) discussions please. I ask these questions because I wish to expand my knowlege about English and American law.

a) I understand that "trial by jury" originated in England and is of Anglo-Saxon origin. It is the form of trial system we are familiar with today. Why is there a great regard for "trial by jury"?

b) What makes the Magna Carta significant in the development of English and American law?

c) What is "common" law? Is it simply law created by custom? What makes it different from codified law?

d) Why is there a fear over a "standing" army among the English and eventually among Americans? Anyway, what is a "standing" army?

 

[Mike Voigt]

Karl,
first off, I am not a lawyer. So perhaps I should not answer, but I will anyway So here's my read on these.
a. Trial by jury means a trial by your peers, as opposed to a conviction by a judge or judges solely. It essentially means a decision by people not affiliated with either the accused, the accuser, or the judicial system, thus reasonably impartial.
b. The Magna Charta was one of the first if not the first codification of legal requirements in England. It defined the legal requirements of the King's subjects to the King, and vice versa. This codification, IIRC, started with the nobles. It eventually formed the basis of the codices, etc. nowadays. Since American law is based on English law, and this occurred long before the US was settled by the Brits, it carried over.
c. Common law, vs code law, indicates law developed over the judicial review of certain actions and their results (cases) within the community. It thus is case-based, with existing cases being used in court to debate the result of the current decision. Modifications to the existing legal structure could potentially be issued in each case, as seen fit by the judge (and jury), and thus common law is potentially open to a huge variety of interpretations. This also gives it a certain special capability at assessing the general response to the cases within the population at large, something with which code law struggles a lot more.
Codified law, on the other hand, is based on specific written requirements laws, in paragraphs. These are then used to debate the issue in court, if debate is an issue. Codified law has the advantage that you can read the law yourself much more easily and thus inform yourself of the relevant items more clearly than with case law, where you may have to review a huge amount of data.
Most other European countries use codified law (as does Louisiana); they went the codified route mostly because of the influence of the French under Napoleon. He had this sytem, and pushed it into all the countries he subjugated. While he wasn't around too long, his legal system was widely adopted & remained; most of the countries had some rudimentary (or even quite well developed set of) codes already. IIRC, modifications get argued through special courts, and of course legislative sessions just as ours are also.
d. Not the foggiest clue...
Mike

 

[Michael Reuben]

Modifications to the existing legal structure could potentially be issued in each case, as seen fit by the judge (and jury), and thus common law is potentially open to a huge variety of interpretations.

Not so good. An essential element of a common law system is the rule of "stare decisis" (my Latin is rusty, but I believe it translates as "to stand by a decision"). In practice, it means that future cases must be decided consistently with past cases, at least until such time as an appellate court with appropriate jurisdiction decides to make a change in the common law (and this happens very rarely). It's true that the common law is renowned for its flexibility, but that flexibility has limits.

While the distinction between Anglo-American common law and European "code" law is historically valid, it's less applicable today, because the modern American legal system is dominated by codifications -- except that we call them statutes. For example, 19th century contract law was entirely common-law based. Today, many contract issues are governed by the Uniform Commercial Code, which has been adopted in every state except Louisiana.

M.

 

[Mike Voigt]

Mike - like I said, IANAL. And you is!
I knew there was a strong leaning towards consistency, I didn't realize it was left up to appellate courts only to make decisions like that. This goes up all the way to the Supreme Court, correct? IIRC, the latter's decisions are final unless superceded by a - statute? - from the legislative branch, a.k.a. Congress.
Yeah, we're getting into more and more statutes/codices as time goes on. It's interesting, seems like we want to mix the best of both somehow.
Anyway, this whole area is fascinating to me, but I ain't no expert. More from a historical/sociological perspective than legal, necessarily. And I find it rather funny, from a distance, that of all places, LA has not accepted the UCC, but still is the only state governed by code law. You'd think kindred formats would help, but...
I need to take a class on all this stuff someday. Everything above came from discussions, readings, etc., etc., so while it may represent a reasonably decent summary, I know for a fact there are huge gaps there.
Regards,
Mike

 

[Joseph DeMartino]

Karl:

It is impossible to answer some of your questions without getting into historical (which are not necessarily political) topics.

"Trial by jury" certainly did not originate in Anglo-Saxon law. Both Cicero and Julius Caesar made their early reputations as trail lawyers in ancient Rome, after all, and The Eumenedies of Aeschylus ends with the myth of Athena inaugurating jury trials among the Athenians, replacing the earlier system of private revenge and blood feuds.

A standing army is an army that is permanently in being, as opposed to a militia of armed nobles or citizens that is called up only for a specific crisis. A standing army gives the King (or the civilian government) a great deal of potential power to coerce the citizens, and history is replete with examples of armies being misused in precisely this way. It can also give inordinate power to generals if their troops decide their first loyalty is to the man, rather than to the state. Sulla, Marius, Caesar, and Napoleon are all classic examples of this, while many Third World countries provide more recent instances.

The British Parliamentarians were suspicious of standing armies at the time of the Civil War, but they created a very effective one of their own anyway. Not long afterwards England, like most other nation-states, developed a permanent, standing army based on the mercenary companies of the Middle Ages.

They obviously had such an army at the time of the American Revolution, because that is what they used to occupy the colonies and resist the rebellion. The American Founders and Framers were leery about standing armies because they had been on the receiving end of the occupation, and feared what a strong American Executive might do with such power. (Tyranny and Caesarism were among the biggest fears the Framers had, since most previous Republics had fallen to exactly that - as the French Republic would shortly do.)

The American army consequently remained quite small, with much of its war manpower being supplied by state militias and volunteers or conscripts, until after the Second World War. At the outset of the Civil War the entire American Army consisted of only a few thousand officers and men, nearly all of them posted to forts along the western frontier.

Regards,

Joe

 

[Michael Reuben]

This goes up all the way to the Supreme Court, correct? IIRC, the latter's decisions are final unless superceded by a - statute? - from the legislative branch, a.k.a. Congress.

Yes, that's how it works. As the saying goes, the Supreme Court isn't final because it's infallible; it's infallible because it's final (i.e., there's no court to overrule it). Congress, which is supposed to represent the popular will, is free to ignore all legal precedent and strike out in a new direction. But of course, the courts still have authority to invalidate an act of Congress as unconstitutional (again, a rare occurrence).
BTW, practicing lawyers rarely deal with these issues. You learn it in law school, and the rest of your career is taken up with nitty-gritty details like how to get the clerk downtown to accept your filing before 5pm.
M.

 

[Dennis Nicholls]

The US Constitution even has a clause warning against standing armies and providing for the necessary alternative: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
A good book for you might be A History Of American Law by Lawrence M. Friedman.
Trying to understand a legal system is difficult unless you are willing to bite off a good deal of learning. I couldn't make heads or tails out of the law until I turned 40 and began law school. Now it still doesn't make a lot of sense but I can talk about it at length....
The common law is being replaced by statute in most cases. The federal government enacts statutes when they are permitted to do so by the Constitution. (And of course in many situations where they are NOT permitted... ) In other cases, the states make up their own statutes. In cases where there should be a nationally-consistent set of statutes, but Congress isn't permitted to act, a "shadow government" called the National Conference of Commissioners on Uniform State Laws promulgates Uniform Codes which are then rubber-stamped into law by the various state legislatures other than Louisiana. The UCC started off in 1962 with only three states but by the late 1980's had been adopted in all states except Louisiana.

Admitted 1983; Harvard University, A.B.; Harvard University, J.D.

So Michael, you're one of those bums in Harvard square that Click and Clack talk about?

 

[Michael Reuben]

Haven't set foot in Harvard Square since the mid-80s. I'm surprised that Martindale's still carries a listing for me, since I refuse to pay them anything (which may explain why the location is out of date).

M.

 

[Karl_O]

I thank those people who replied to my question. Now, I have more legal questions pertaining to common law:

a) How is it that "right-of-way" when driving is considered common law?

b) I heard that a husband can beat his wife with an object as long as his thumb, and this is according to common law. I find this strange, but what is its significance? I sometimes see this mentioned in domestic violence materials.

c) A month ago, the High Court of Australia ruled that an Australian mining magnate can sue against an American company in an Australian court for libel, even though the company is located in the United States. I read that the magnate wanted to sue in Australia because the country has libel laws which are liberal than the United States. What is its significance, and would it set precedence to countries that use common law?

d) A strange question: most Internet message forums have rules, such as prohibiting certain discussions, and are written down. Would these rules, even if they are not very specific, work like common law?

 

[Michael Reuben]

Re: your question (d). The rules of internet forums have nothing to do with common law. They're the rules of a private establishment, usually set by the owners, and the overriding principle (in most cases) is that membership is a privilege, not a right, and the forum owners can refuse or revoke membership as they see fit. In practice, of course, most forum administrations try to behave fairly and consistently, but they have no legal obligation to do so.

As for (a) and (b), it might help if you provided some references.

(C) is a very big topic -- several topics, in fact. There have been many articles published about it already, and I suggest you try a Google search.

M.

 

[Joseph DeMartino]

The US Constitution even has a clause ...

Something I specifically did not mention, although it is germane, because it opens the door to a political discussion and I wanted to avoid that.
a) How is it that "right-of-way" when driving is considered common law?
"Right of way" is a very old bit of land use law, pertaining to the necessary and limited access that those who don't own a piece of property must have in order to use property they do own, common land or for some other compelling reason. (So that if you own two plots of land on either side of my plot of land, you would have a "right of way" to cross a designated portion of my field to reach your land - or a river or lake that we both use in common. I couldn't lawfully stop you from doing this. But you wouldn't have the right to wander across my property at will, or just loiter on it. You could only cross in the designated area when actually on your way to and from your own land or the water.) It was applied, by analogy, to precedence of carts and carriages on English roads, and then by extension to motor vehicles.
b) I heard that a husband can beat his wife with an object as long as his thumb
Sounds like an Urban Legend to me. In fact the common law probably recognized a husband's right to "chastise" his wife in a great many ways. An "object as long as his thumb" wouldn't be very useful as a method of chastisement in a society where "switching" with a tree branch or flogging with a whip would be more common punishments. While something of this sort may once have been recognized by the common law, it would obviously have been superceded by both statute and more recent precedent by now, so if you're thinking of hauling off and hitting your wife, don't look to this as a justification.
c) A month ago, the High Court of Australia ruled that an Australian mining magnate can sue against an American company in an Australian court for libel, even though the company is located in the United States.
Right. Under U.S. libel law truth is a defense. Even if something you've printed is insulting or damaging, you would have no recourse at law if it could be shown the information is true. In fact, even incorrectly believing that the information is true is a defense provided you have made reasonable efforts to verify it. You have to have knowingly published something false and defamatory, or have acted with actual malice and reckless disregard for the truth to be found guilty of libel. The case you mention is more complicated than you might think, though, and is apt to have major repercussions no matter which way it is decided.
The libel allegation does not involve a U.S. publication that was printed in Australia or even imported into the country - the plaintiff in this case is a web site based in the U.S. So there is a question of "where" this thing was "published". I seriously doubt an Australian company could sue The Baltimore Sun for an article published only in Baltimore, and which was never seen by the general public in Australia, in an Australian court. In this case the web content may have been intended only for U.S. consumption. Does the fact that it can be accessed from anywhere in the world give Australian courts jurisdiction? This should be interesting.
d) A strange question: most Internet message forums have rules, such as prohibiting certain discussions, and are written down. Would these rules, even if they are not very specific, work like common law?
No, precisely because they are written down, and are not merely based on precedent of common usage, they would be more analogous to statute than to common law.
But since there is no judicial review for this kind of thing, I think viewing them as any kind of "law" is a bit misleading.
Regards,
Joe

 

[Dennis Nicholls]

Joseph, that's not the only citation by the way. Also see Art. I Section 8 para. 12, giving Congress the power to "raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Time than Two years." In other words, no long term funding for a "standing army".
I think that the second "b" refers to a historical oddity that hasn't been the law in any western jurisdiction for many, many years. IIRC this old law was that you could beat your wife with a stick as long as it wasn't larger in diameter than your thumb. This may actually be the etymology of the expression "rule of thumb". There's a lot of discussions of this on line e.g. http://www.urbanlegends.com/language..._of_thumb.html
I think reading the book I referenced would be helpful, as discussing small snippits of law without any background is generally unfruitful.

 

[Joseph DeMartino]

This may actually be the etymology of the expression "rule of thumb".

I don't think so; it has been pretty well (and obviously) established that "rule of thumb" simply means using your thumb as a ruler, as in carpentry. "Rule" and "Ruler" are interchangable in this respect, although today we almost always use "ruler". (The older form survives in "slide-rule") But certainly the idea of using the diameter of the thumb, as opposed to its length, makes more sense in the context given above.
Regards,
Joe

 

[andrew markworthy]

b) I heard that a husband can beat his wife with an object as long as his thumb

With the greatest of respect to Joseph, it's not an urban legend. The ruling under British law was that a man could beat his wife with a cane or similar instrument no *thicker* than the last joint of his thumb [if memory serves me correctly, this ruling was first laid down in a Victorian court]. The law did not actively encourage this, but instead used this as a (if you'll pardon the phrase) rule of thumb in judging cases of cruelty to assess if the husband had used a dangerous weapon on his wife (and no, this isn't the origin of 'rule of thumb'- I've been commissioned to write a dictionary of colloquial English and have been looking up these phrases: rule of thumb probably refers to crude measurement and has been current since the 16th century). I should stress that the thumb rule would no longer be considered valid in a British court!

Magna Carta was not a particularly egalitarian document - however, it was in effect the first formal admission by a monarch that Parliament (in reality, a few rich nobles who bullied everyone else) should have a say in the affairs of state. From this basic principle a lot of later legal and governmental principles are derived.

I think a lot of the question about standing armies has already been answered. However, perhaps the following may be of use. Prior to the 17th century, British monarchs had a lot more power, and one of the few checks people had on the monarch was control over the national finances. If the monarch wanted to raise an army, s/he had to summon Parliament who would approve the raising of funds (typically through taxation and/or loans). If there was a standing army, there would have to be a permanent money-raising scheme as well, and this would obviate the need to summon Parliament. This was one of the prime causes of the English Civil War - Charles felt he could raise money for armies without Parliament's consent, whilst Parliament felt rather differently.

The jury system was originally a safeguard against the local lords making all the decisions. In part it was a way by which the monarch could put a check on the power of the nobles and landowners. The early legal system wasn't quite as barbaric as it may sound - the higher rates of physical punishments such as mutilation, etc, were done simply because there weren't the means to keep all convicted criminals imprisoned for long periods of time, and in the days before a reasonable distribution of wealth, fines would have been meaningless in many cases. Again, horror stories of trial by drowning, etc, were only done when a jury couldn't reach a decision (the people genuinely believed in doing this they were leaving the decision to God).

 

[JayV]

if memory serves me correctly, this ruling was first laid down in a Victorian court

Andrew, do you have a case cite? I've been hearing this for years, so I would love to finally see it in black and white.

-j

 

[Cees Alons]

Andrew,

(Sidenote)

rule of thumb probably refers to crude measurement

Is the "thumb" also an old unit of measurement in England? Because it is (was) in my country - goes back to the Middle Ages or before - just like the "el" (a Dutch "duim" = thumb would be about an inch and the official name in the construction business for a wooden ruler is "duimstok" = thumbstick or thumbruler; the "el" is of course measured from hand to elbow; in Dutch literature the English "inch" is commonly translated with "duim").
The "rule of thumb" in my language is called a "rule of fist" (vuistregel), which has nothing to do with (implied or not) violence: perhaps a reference to the measurement of an "el".

Cees

 

[andrew markworthy]

Jay, the wife-beating thing is cited several times in Victorian writings, and I'd always thought that it originated then (all I needed for my dictionary was that 'rule of thumb' had nothing to do with this, and I left it at that). I'd heard the name 'Judge Francis Buller' cited a few times, and I thought he was a Victorian judge, but it turns out he was active in the 18th century. However, it turns out that rather like the Rev Spooner never said Spoonerisms, he may never have passed the ruling. I found the following reference that may be useful:
http://dynamic.uoregon.edu/~jjf/essays/ruleofthumb.html
Cees - the argument is that the British Imperial measures are based around body parts. The inch is supposed to be the measure of the last section of an average thumb. The foot is supposed to be the length of a human foot, the yard the span of a man's arm, etc. Thus, 'rule of thumb' is a crude measure of an inch (hopeless in my case - the final joint is out by about 50 per cent). Incidentally, 'rule of fist' is a phrase known in some parts of the north of England in the same sense as the Dutch.

 

[Patrick Sun]

So is this where the phrase "he was beaten within an inch of his life" comes from?

 

[Karl_O]

Since I wish to see this thread not venture off-topic, I have a new question:

a) I remembered in an issue of Playboy from the late 1970s that had an article about the history of obscenity from ancient times to the present (late 1970s). One of the items from that article that interest me was the case of a minor English poet from the 17th century who was convinced for obscenity by urinating in a public place while he was intoxicated. The article said the case's significance was it was the first time that common law ruled on obscenity, and it set precedence in English and eventually American obscenity laws. What is the name of this case?

 

[Yee-Ming]

BTW, practicing lawyers rarely deal with these issues. You learn it in law school, and the rest of your career is taken up with nitty-gritty details like how to get the clerk downtown to accept your filing before 5pm.

truer words were never spoken!!!

late to the party, so just two questions: perhaps LA has not adopted the UCC because it already has its own equivalent? and even in a civil (code) law jurisdiction, doesn't case-law still have an important role in showing how to interpret the code? this is after all true of common law countries, where the increasingly large body of statutes is still open to interpretation.