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Little Big Man
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English Common Law vs. Roman Civil Law
Dec 30th, 2018 at 3:10pm
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We in the U.S. and forty-nine of its states live under English common law.  Many European countries and the state of Louisiana have laws based on Roman law, (with Louisiana's being indirectly based on Roman law through the French civil law.  Neither is libertarian, of course. 

But one difference in the two is that under Roman civil code-type law, when an action is not specifically outlawed, it is presumed to be legal.  Under Common Law, there is an unwritten and often unspoken, yet very powerful idea that things are legal to do unless the law specifically allows it.  When Texans celebrate that they are "allowed" to carry concealed firearms, they are buying into that.

That last is really interesting to me since the Constitution very specifically "allows" all Americans to carry a concealed firearm, so the fact that we wait hat in hand for our state to pass a law that agrees makes me wonder what good the constitution ever was.

I think maybe Jeff hit it on the head when he said that the new constitution we desperately need should specify that it, and not any precedents from English Common Law, will be guiding.  That would stop a lot of the "yeah, but . . . " attitude toward individual rights on the part of judges and bureaucrats.
  

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Re: English Common Law vs. Roman Civil Law
Reply #1 - Dec 30th, 2018 at 5:09pm
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Little Big Man wrote on Dec 30th, 2018 at 3:10pm:
We in the U.S. and forty-nine of its states live under English common law.  Many European countries and the state of Louisiana have laws based on Roman law, (with Louisiana's being indirectly based on Roman law through the French civil law.  Neither is libertarian, of course. 

But one difference in the two is that under Roman civil code-type law, when an action is not specifically outlawed, it is presumed to be legal.  Under Common Law, there is an unwritten and often unspoken, yet very powerful idea that things are legal to do unless the law specifically allows it.  When Texans celebrate that they are "allowed" to carry concealed firearms, they are buying into that.


This has long irked me but for a different reason.

You can be sued for anything, even if legal. This makes anything you can be sued for, de facto illegal, because you can and probably will be punished for it.

I personally don't care how much shit is illegal, as long as I know what's legal and what's not before I want to do something, and the rule is the same for me as it is for someone else. I think that's a totally reasonable request and something that ought to go in the new constitution.

Little Big Man wrote on Dec 30th, 2018 at 3:10pm:
That last is really interesting to me since the Constitution very specifically "allows" all Americans to carry a concealed firearm, so the fact that we wait hat in hand for our state to pass a law that agrees makes me wonder what good the constitution ever was.


Marijuana is still federally illegal in the states where it's legal. There are just laws that make the Federal laws illegal to enforce.

This is a fustercluck and to me, unacceptable.

Little Big Man wrote on Dec 30th, 2018 at 3:10pm:
I think maybe Jeff hit it on the head when he said that the new constitution we desperately need should specify that it, and not any precedents from English Common Law, will be guiding.  That would stop a lot of the "yeah, but . . . " attitude toward individual rights on the part of judges and bureaucrats.   


There's only one thing that gives a constitution the power it deserves.

"...And if anyone violates any of these rights herein granted to you, you may kill them with total indemnity."
  

This moral relativism of yours is exactly what lets government take this freedom, then that freedom, until we have lost them all.
-SnarkySack
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Jeff
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Re: English Common Law vs. Roman Civil Law
Reply #2 - Dec 30th, 2018 at 5:33pm
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Little Big Man wrote on Dec 30th, 2018 at 3:10pm:
We in the U.S. and forty-nine of its states live under English common law.  Many European countries and the state of Louisiana have laws based on Roman law, (with Louisiana's being indirectly based on Roman law through the French civil law.  Neither is libertarian, of course. 

But one difference in the two is that under Roman civil code-type law, when an action is not specifically outlawed, it is presumed to be legal.  Under Common Law, there is an unwritten and often unspoken, yet very powerful idea that things are legal to do unless the law specifically allows it.  When Texans celebrate that they are "allowed" to carry concealed firearms, they are buying into that.

That last is really interesting to me since the Constitution very specifically "allows" all Americans to carry a concealed firearm, so the fact that we wait hat in hand for our state to pass a law that agrees makes me wonder what good the constitution ever was.

I think maybe Jeff hit it on the head when he said that the new constitution we desperately need should specify that it, and not any precedents from English Common Law, will be guiding.  That would stop a lot of the "yeah, but . . . " attitude toward individual rights on the part of judges and bureaucrats.   
What a lot of crap.

Do you want me to address it point by point?

To start, the common law is very libertarian.




This is nonsense-
and completely the opposite of reality.

"Under Common Law, there is an unwritten and often unspoken, yet very powerful idea that things are legal to do unless the law specifically allows it."

Perhaps you would be kind enough to edit it to reflect something you might have actually intended to say? Thanks..
  
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Re: English Common Law vs. Roman Civil Law
Reply #3 - Dec 30th, 2018 at 5:40pm
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Little Big Man wrote on Dec 30th, 2018 at 3:10pm:
I think maybe Jeff hit it on the head when he said that the new constitution we desperately need should specify that it, and not any precedents from English Common Law, will be guiding.  That would stop a lot of the "yeah, but . . . " attitude toward individual rights on the part of judges and bureaucrats.   
This is imaginary nonsense. I never said any such thing.

Constitutional and statute law are separate and very different things from the common law, but all are not only useful for the maintenance of individual liberty and the protection of individual rights, but, in my opinion, necessary.

The Constitution is superior. That's the only thing you have right.
  
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Re: English Common Law vs. Roman Civil Law
Reply #4 - Dec 30th, 2018 at 10:22pm
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Jeff wrote on Dec 30th, 2018 at 5:33pm:
What a lot of crap.

Do you want me to address it point by point?


Yes, please.

Quote:
To start, the common law is very libertarian.


In what way?

Quote:
"Under Common Law, there is an unwritten and often unspoken, yet very powerful idea that things are legal to do unless the law specifically allows it."

Perhaps you would be kind enough to edit it to reflect something you might have actually intended to say? Thanks..


No, that's exactly what I wanted it to say.

Remember when I brought up the "robot brothels," and how Texans were wondering if that would be legal?  Clearly, in the absence of a law against renting sex toys by the hour, they would be.  But your advice was to find a place where people are ok with them as if every new innovation has to be "ok" to everyone in the place or it's automatically considered illegal.

  

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Re: English Common Law vs. Roman Civil Law
Reply #5 - Dec 31st, 2018 at 6:36am
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Little Big Man wrote on Dec 30th, 2018 at 10:22pm:
In what way?



Here's some history and discussion-

https://www.libertarianism.org/encyclopedia/common-law

Essentially, the common law is a means for settling private disputes in order to protect property rights. It originally operated against the King by taking disputes about rights out of the King's courts.

Of course I'm talking about the common law as it was created and used prior to the Progressive Era, when it was gradually transformed into another tool of government.

From the article-

"...it seems clear that the common law served as one of the pillars on which British liberty rested and played a crucial role in shaping a free society."
  
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Re: English Common Law vs. Roman Civil Law
Reply #6 - Dec 31st, 2018 at 6:40am
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Little Big Man wrote on Dec 30th, 2018 at 10:22pm:
No, that's exactly what I wanted it to say.


"...things are legal to do unless the law specifically allows it."

I'm sure you meant to say that it is erroneous under a theory of general liberty to say that everything is illegal unless the law specifically allows it.

As I've said before, general theories of liberty hold that everything is permitted unless the law specifically forbids it.
  
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Re: English Common Law vs. Roman Civil Law
Reply #7 - Jan 1st, 2019 at 9:12am
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Jeff wrote on Dec 31st, 2018 at 6:40am:
"...things are legal to do unless the law specifically allows it."

I'm sure you meant to say that it is erroneous under a theory of general liberty to say that everything is illegal unless the law specifically allows it.


Yes, thanks for the correction.

Quote:
As I've said before, general theories of liberty hold that everything is permitted unless the law specifically forbids it.


Then, can you explain your comment that I should find "someplace where they think robot brothels are ok?"

  

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Re: English Common Law vs. Roman Civil Law
Reply #8 - Jan 1st, 2019 at 9:55am
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Little Big Man wrote on Jan 1st, 2019 at 9:12am:
Then, can you explain your comment that I should find "someplace where they think robot brothels are ok?"

Local governments aren't necessarily constituted under theories of general liberty. They have considerable power (but not unlimited power) to pass laws and ordinances that the people of the community generally agree will be 'good' for the local community. Some local governments are quite libertarian in their structure and operation, others are rather statist and tyrannical.

There are still counties in the U.S. where alcohol sales are prohibited. There are some large cities that have no zoning laws at all... In short, there is a wide variety in how local governments operate, and they are largely (but not completely) free to do what they choose to do... There's even some town in Kalifornia that's testing out a (non-serious) form of UBI.

This is simply the reality. I know you don't like it. The best options are to either move to a place where the local government is already mostly laissez-faire , or to try to talk your local government into leaving you alone.

If you have a better idea, what is it?
  
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Re: English Common Law vs. Roman Civil Law
Reply #9 - Jan 1st, 2019 at 11:59am
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Jeff wrote on Jan 1st, 2019 at 9:55am:
Local governments aren't necessarily constituted under theories of general liberty. They have considerable power (but not unlimited power) to pass laws and ordinances that the people of the community generally agree will be 'good' for the local community. Some local governments are quite libertarian in their structure and operation, others are rather statist and tyrannical.

There are still counties in the U.S. where alcohol sales are prohibited. There are some large cities that have no zoning laws at all... In short, there is a wide variety in how local governments operate, and they are largely (but not completely) free to do what they choose to do... There's even some town in Kalifornia that's testing out a (non-serious) form of UBI.

This is simply the reality. I know you don't like it.


But you do.

Quote:
The best options are to either move to a place where the local government is already mostly laissez-faire , or to try to talk your local government into leaving you alone.

If you have a better idea, what is it?


Yes.

It's called "freedom."  Under that concept, I don't have to move to a state where robot brothels "have been legalized," only to find out that poker "hasn't been legalized," and then move to a state in which both poker and robot brothels are legal only to find out that it ignores the 2nd amendment and bans carry of firearms for non-law enforcement citizens.

That is seriously the great America you envision?  One in which a supposedly free citizen has to county shop to enjoy the right to be left alone if he isn't interfering with another person's rights?

What good is your strong central government if it doesn't protect my rights?  If the only real justification was to collect taxes and pay our debt to France, couldn't we have gone back to the states having control after we paid it?

  

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