Mark Cella On Common Law
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Mark Cella What About Common Law?
Common Law in the USA is the Ghost of English Feudalism. America is Thought to be Based on a Fair Legal System but the Tyranny of Old England Lives on in Our Laws Today.
Common law in the USA is the injustice of the legal system that guards property for the banking mafia. Despite the Founding Fathers having sought a systemic change to get out from under the oppressive reign of the English crown, injustice lives on today.
In the 21st Century, this is still the case. US law in the new millennium is still based on common law from pre-colonial England.
Some of the essence of laws considered to be sacred in the United States actually date back to feudalist England in the 12th Century as is explored by S.F.C. Milsom of Cambridge University in his 2003 book, Historical Foundations of the Common Law and Legal Framework of English Feudalism.
Mark Cella on Common Law
These laws were 'discovered' in feudal courts onward based on arguments and the practical decisions of judges in a trial and error basis. In other words, in the US today, the legal system is based, in part, on what the feudal lords and later the Englishmen convinced judges based on the individual interests of accused and plaintiffs at the time.
This contradicts the idea that the modern legal system is based on the common good or on improving society; it is based on a literal trial and error process that began in the 12th Century with the signing of the Magna Carta, where the basic but limited notion of freedom first appears.
The defense of property and the rights of property as a fundamental principle, outweighed any implicit rights for human beings.
From then onwards, common law in the USA and other laws continued to be developed in a process of expanding the rights of defending individual property and the rights of property holders. Thus, naturally evolving over time into the laws of the modern US capitalist society.
Mark Cella on Common Law
The common law system of judges ruling based on custom, or legal precedent has evolved in the United States. Common Law in the USA has been mingled and mixed with a system of equity law over the past two centuries.
Equity Law also comes from England where it was created by the Crown in order to address matters not covered under existing common law. It seeks equity or justice through a set of principles and codes. Common Law in the US also lives alongside a set of codes and principles that are theoretically aimed at leveling the playing field and protecting the weakest.
However, even in a mixed system, the court's prerogative to stick with custom rather than set precedent in most cases means that common law, which privileges the propertied, usually wins out over laws having to do with moral imperatives and the concept of justice.
This concept, justice, is an abstract concept; yet it is primordial to any society that truly seeks to promote an equality of freedoms.
Mark Cella on Common Law
A series of documents, which on the whole are referred to as the 'Freedom Charter,' laid the basis for the foundation of the United States. These documents, drafted and signed by the founding fathers that led the movement to secede from England, are the Declaration of Independence the US Constitution and the Bill of Rights (the first amendments to the US Constitution).
The first of these documents discussed certain inalienable rights of equality that it considered self-evident. The second document laid out the three branch government and its functions, clearly seeking to place greater power, that of making law in the most representative of those branches, the U.S. Congress.
The third was the judicial system, charged with interpreting the law. The third, and no less important of the documents, provided for a number of basic rights of citizens intended to guarantee against dictatorship and protect citizens from the whims of the State overstepping its power.
Mark Cella What About Common Law?
Common Law in the USA, as in England, has always evolved to meet new circumstances. But a legal system based in custom or in past behavior can also be an obstacle to change and improving society.
The new society that the founding fathers sought to create based on representation, freedom and equality was stillborn on the American Continent. It was held back by a legal system based in the protection of property.
Today, for real change to occur, common law in the USA does not hold the solution. A new legal system based on the future must be created to eliminate the ghost of English feudalism that plagues the American judicial system that only protects the dominant economic order.
Article Source: Articlelogy.com
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