Four legal questions

Discussion in 'Archived Threads 2001-2004' started by Karl_O, Jan 3, 2003.

  1. Karl_O

    Karl_O Stunt Coordinator

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    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?
     
  2. Mike Voigt

    Mike Voigt Supporting Actor

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    Karl,
    first off, I am not a lawyer. So perhaps I should not answer, but I will anyway [​IMG] 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
     
  3. Michael Reuben

    Michael Reuben Studio Mogul

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  4. Mike Voigt

    Mike Voigt Supporting Actor

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    Mike - like I said, IANAL. [​IMG] 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
     
  5. Joseph DeMartino

    Joseph DeMartino Lead Actor

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    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
     
  6. Michael Reuben

    Michael Reuben Studio Mogul

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  7. Dennis Nicholls

    Dennis Nicholls Lead Actor

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    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....[​IMG]
    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... [​IMG] ) 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.
     
  8. Michael Reuben

    Michael Reuben Studio Mogul

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    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.
     
  9. Karl_O

    Karl_O Stunt Coordinator

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    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?
     
  10. Michael Reuben

    Michael Reuben Studio Mogul

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    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.
     
  11. Joseph DeMartino

    Joseph DeMartino Lead Actor

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  12. Dennis Nicholls

    Dennis Nicholls Lead Actor

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    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.
     
  13. Joseph DeMartino

    Joseph DeMartino Lead Actor

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  14. andrew markworthy

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  15. JayV

    JayV Supporting Actor

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  16. Cees Alons

    Cees Alons Moderator
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    Andrew,

    (Sidenote)
     
  17. andrew markworthy

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    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.
     
  18. Patrick Sun

    Patrick Sun Studio Mogul

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

    Karl_O Stunt Coordinator

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    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?
     
  20. Yee-Ming

    Yee-Ming Producer

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