In previous posts of this blog I have given broad
outlines of different kinds of Law in practice today. One of those is Common
Law. The Thesaurus gives “widespread”, “general” and “universal” as synonyms
for Common. As the second part of its name implies, it has to do with rules and
regulations.
There are but two rules/commandments given to Humanity,
which most of us are familiar with and therefore can rightly be called
“Universal Laws”. Those two concern Love, love and respect for our Creator and
love and respect for what He created. Love does no harm to anyone or anything
that was created.
Then there are rules and regulations which communities
of people have adopted by unanimous decision in order to maintain peace amongst
each other and regulate their day to day affairs. The Mosaic Law for instance
was commonly known amongst the Israelites, it was their Common Law.
Authority
vs Tyranny
Common Law, then, is rooted in the Natural Law of love
and care for each other. It is expressed by the people, for the people. It is
activated by the people when they realize the need for a law. Its purpose is
the
protection of
the inherent freedom and autonomy of all the people within a community. It operates on the simple principle of what is
best for the community and every part in
it.
Any legal decision that only serves a certain part of
the community is not rooted in Common Law, not rooted in love. Roman/Civil Law only serves parts of the
community and is therefore diametrically opposed to Common Law.
Jury
vs Judge
Under Common Law the inherent capacity of a sovereign
people to objectively judge right from wrong is represented by a Jury of at
least 12 independent people, who only serve on a temporary basis, judging or
deciding on a specific case or issue. Their unanimous decision is respected and
accepted as final.
Under Roman/Civil Law the decision of one judge can be
repealed by another one, depending on the arguments presented by people trained
to look for loopholes in the confusion of statutes. Thus lies become truth and
truth is no longer truth.
Court
of the people vs Court of Rulers
Though Common Law is used everywhere in everyday life, certain
matters and situations need to be dealt with more formally, before a tribunal
of people in a specific place called a court.
Common Law Courts are courts of the people, where
people are tried by their neighbors, who act as Jury, everyone being equal,
having the same rights, freedoms and sovereignty. In order to prevent chaos at
such a hearing, certain proven rules are followed, just as in the courts of the
rulers.
The big difference is that instead of one state
appointed judge, juries of 12 normal, untrained people act in that capacity on
a temporary basis for the time of trial. This is a better guarantee for a fair trial,
as the Rules of evidence and just procedure have to be followed strictly in
order for the Jury to arrive at just decision.
In the courts of the rulers judges regularly ignore
rules of evidence and just procedure and are allowed to do so by their
statutes. They are even allowed to silence a party in a dispute. Being
appointed by the state in a permanent capacity, they can easily be politically manipulated
and bribed.
Summary
A truly sovereign and free community can only stay
sovereign and free when the people within the community take charge of their
own affairs on every level.
As John Hancock, a founding father of the American
Republic, declared in 1777:
“If we have not Courts that
are established and maintained by the People, rather than by bribable Judges,
then we will have no Republic … Our Constitution and our Nation will rise or
fall according to the independence of our Courts.”
In the next part of this series on Common Law I’ll
discuss its applicability in Namibia.
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