Common law society vs. statutory, state-centered society; which is freer?

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Chattanooga police officers close off a street after having investigated a suspicious package left in a neighborhood, one that proved harmless. (Photo David Tulis)

Chattanooga police officers close off a street after having investigated a suspicious package left in a neighborhood, one that proved harmless. (Photo David Tulis)

By David Tulis / NoogaRadio 92.7

In my pursuit of understanding local economy in the Chattanooga area, I have explored the idea of common law versus statutory systems such as Tennessee code annotated.

A more godly social order, as argued since the 1970s by writers such as R.J. Rushdoony and Gary North, would take on a much more common law-oriented legal framework in which the state is passive, not active and peremptory.

Tune in to the David Tulis show weekdays at 9 a.m.

Tune in to the David Tulis show weekdays at 9 a.m.

An expert on matters of common law vs. statute is Brent Allen Winters, an attorney who does a good bit of radio speaking and writing about this important concept. The excerpts below are from his website, http://commonlawyer.com/.

Mr. Winters gives me an interview today on the question: What would a common law society look like in Chattanooga?

Common law not a list of laws, but way of life

Brent Allen Winters

Brent Allen Winters

Our Constitution arranges the bones forming our government in the language of the common law. Without the common law, our Constitution sleeps — a bone-dry and dispirited skeleton of lifeless words. Keep our common law and it will keep your freedoms.***

Common law is not a list of laws but a way of life and mind, recognizing that man at his best is still only man — at best. Accordingly, it seeks not the scholastic’s utopian fantasy through a code of legal precision but rather the doable-ness of fair play by following due process to uncover the driving reality of facts.  ***

Common law protects relationships. Our common law is understood according to relationships — creditor-debtor, promisor-promisee, trustor-trustee, bailor-bailee, vendor-vendee, husband-wife & etc. Accordingly in common-law trials, the threshold question must be to identify the relationship between the parties: landowner-trespasser, landowner-invitee, leaseholder-landlord, dual agency (partnership) or single agency, bailor-bailee, trustee-beneficiary & etc. By contrast, civil law organizes its codes according to subject — contract law, tort law, property law, family law & etc. Our common law (law of the land) seeks foremost to protect relationships through due process, also called fair play. By contrast, the civil law (law of the city) seeks foremost to justify the will of the state, set forth in commands called legislation (statutes) and regulation. ***

That the quest for facts is the driving force of our common law distinguishing it from the rest of the world’s city (civil) law cannot be over-stressed.Once this question of fact (relationship) is discerned, the law to be applied is clear and all the Jury need to decide are the remaining facts of the case: What happened? How’d it happen? Why’d it happen? When’d it happen? Where’d it happen? Who done it? Who’s at fault? ***

By contrast, the will of the state is the driving force of the civil law. In civil-law countries — these countries now covering almost the entire globe — the controlling question is, what does the state by its code command? In a common-law country such as ours, the troublesome problem confronting the court and jury, says Stryker, is not so much what the law is, as what happened. Did he steal? Did he assault? Did he commit arson? Did he kill, and under what circumstances? ***

Because our Constitution neither requires, nor commands, anything of the people of the United States but only of public employees, office-holders, and other dependents go government, it is neither legislation nor statutes but an excellent expression — in a long tradition of expressions — of the ancient principles of common-law government.***

 

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