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Common law not so common

Martin Luther, 15th-century leader of the Protestant Reformation

There was a time in the not too distant past when the term egalitarianism was considered as an ideal and even a virtue. The simple definition of egalitarianism is that every person in society regardless of their race, gender, age or class is entitled to the same equal rights. However, in reality, it can go even deeper. For one, people cannot be equal concerning their rights if they don’t know what their rights are. If some persons are ignorant of the law, while others are not, they will not behave similar under any law construct.

One of the principal ideas of constitutionality is to remove men from the subjugation of other men by having a lawbook or a constitution to which they all adhere. Again, that is supposed to be the ideal. But here, too, if persons are ignorant of their constitutional rights, how could society function on an egalitarian basis?

A reminder of that disparity would be during the religious era when only the clergy and those of that class could read. Martin Luther and the Lutheran movement broke a hole into that framework and, believe it or not, it precipitated 100 years of war.

Today, while secularism reigns, the levels and disparities take little discussion to unveil the same class restrictions that religion posed during the Dark Ages, similarly separating people from what is considered the real people or those who truly enjoy the right to be called fully participating humans. Let’s look at law, which over the years has seen representation become a particularised skill. The basis of law is what we call “common law”. Long before there were statutes, there was common law, which gave a basis for arriving at positions on behaviour. Judgments by common people became precedents upon which future rulings were made.

Representations followed a pattern of evolution starting from personal representation, where people state their own grievances. It became a natural phenomenon that some people are better at explaining issues and some just are not, and often can be assisted by someone with better skills at articulation. That was indeed the original aim in representation where the primal subject was to help the litigant who needed assistance.

What happened to that original purpose of self-representation has turned into the practice of profession of skilled artisans whose job became what we know today as lawyers and barristers, whose role it is to understand the law and to be able to represent clients who need that representation. Added to that is what became a fellow of comrades, all in the same art of representation called the Bar Association, where this council of fellows becomes a regulatory and disciplinary body for the fellow artisans in the field of law.

Basic or common law, sometimes also referred to as natural law, builds itself around some basic rules. If you make a promise, you should keep it; if there is a contract between persons, no third party can alter the outcome; and there should be no force or aggression to achieve ends. There may be different formalities on how a society ascertains what constitutes a promise or contract; however, the base needing to be established in any test is not the formality, but whether in fact there was a contract or promise that in good faith should have been carried out.

Similarly, if there is third-party intrusion that causes a different outcome or alters the course of events that cause injury or harm, it is the truth that needs to be established and not whether they followed arbitrary rules, which obfuscate the reality of what happened. The same with aggression, which does not necessarily mean physical violence, but can mean the use of power to achieve a result that ordinarily would not happen. Law can be a simple observation, but is often made complicated by the art of rhetoric and the use of language that lift the subject beyond laymen terminology where they don’t know what the discussion is — often seen as drivel between the lawyer and the bench.

We live in a constitutional era and not the rule of an overlord king or prince who make law as they see fit. The real aim of society should be to become egalitarian. Law and constitutionality should not be privileged learning, but rather basic education taught from childhood and continued throughout the educational life of a citizen. Your rights should not be a mystery or something someone discovers when they face a crisis, then to become informed by a lawyer at tremendous cost. This is not a swipe at the legal profession; it is a challenge for society to break what resembles the medieval clergy with priests and bishops lording over society.

It will be a new day dawning when everyone gains a better appreciation of their rights and roles as members of human society, and we have to make it happen; it will not just come. We need to agitate in order to educate and this needs to begin with our youth.

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Published June 03, 2023 at 8:00 am (Updated June 02, 2023 at 5:12 pm)

Common law not so common

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