Now yesterday, I laid out just some of the very conservative approaches to constitutional law in the United States. But, those are not the only interpretations, and they do not take into account a very important concept called “common law.” You see, our system of justice is not purely written law based, it is also based on a system of law inherited from England which included the concept of common law. In fact, you really do not believe that the law is the law no matter what, if you think about it. Do you believe that there are certain moral imperatives and certain rights that supersede the written law, regardless of what the written law might say? Then you are a good Englishman. You see, in the United States we do fully not believe that the law is the final arbiter of what is correct. That is why we talk about “standing up for our rights.” That is why the Declaration of Independence talks about certain inalienable rights. We state that we believe that there are certain matters which are outside the purview of the law to either prohibit or to overly limit, do we not?
So, what is common law?
Common law refers to law developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law. This precedential law requires adherence to Common Law rules such as, “One cannot be a judge in one’s own cause” (see Dr. Bonham’s Case), and rights are reciprocal to obligations.
Common law in the time of Edward Coke was understood to be a collection of rules/maxims that had preexisted the introduction of Christianity to the British Isles (See Thomas Jefferson’s letter to Thomas Cooper). Judicial decision in keeping with these maxims of common law applied and expounded on these rules which in turn created and refined by judicial opinions: a decision in a currently pending legal case depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent by applying the maxims of common law to the case.
The body of precedent is called “common law” and it binds future decisions. In future cases, when parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will decide as a “matter of first impression”. Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.
Please notice that common law goes back to before the entrance of Christianity to England. Notice that Thomas Jefferson cited it. And notice that term “stare decisis.” You should recognize it since it was cited by Judge Roberts during his confirmation hearings and cited by Judge Sotomayor and has been cited by other candidates to the Supreme Court. It is a common law term and an open acknowledgment by our judges that the USA runs not simply on written law, but also on common law. In the USA, a lower court judge is expected to follow BOTH the written law and the common law. Please notice, in both the English and American systems of law, judges interpret the law not simply according to what is written but also according to previous canons of interpretation. Furthermore, it might surprise you that:
. . . in England and Wales and in most states of the United States, the basic law of contracts, torts and property do not exist in statute, but only in common law (though there may be isolated modifications enacted by statute). In almost all areas of the law (even those where there is a statutory framework, such as contracts for the sale of goods, or the criminal law), legislature-enacted statutes generally give only terse statements of general principle, and the fine boundaries and definitions exist only in the common law . . .
In other words, there are entire areas of law in the United States where the only law is that of common law, that is of tradition and judge generated law with no written law in existence! Did you know that? Where you aware that we are NOT simply a country of legislature passed laws? Have you ever wondered why the USA Constitution is written so generally? Have you even wondered why there are so many legislature passed laws that are so open to interpretation? Well, it is because our legal tradition is that we write laws with a broad paintbrush precisely so that judges have some freedom in interpreting the law. That is, we try to avoid writing too many laws by writing our laws broadly and giving judges the authority to apply them to the actual situation. In other words, the less freedom you want judges to have the more laws you will have to write and the more detailed those laws will have to be.
But more than that, the principle of common law says that a judge has a duty to judge. He/she may not say, per se, that there is no law that precisely covers a situation. He/she may say that the law cited by the prosecutor or the plaintiff does not apply, but that is actually very rare. But, even that is to make a judgment. He/she is duty bound to judge and he/she must decide what is the applicable law in a situation and where there is no exact law, he/she must decide how to apply legal principles to the case in question. He/she has a duty to judge.
OK, so what does all this have to do with the Bible, interpretation, Eastern Orthodoxy and Anglicanism?
===MORE TO COME===
Man, where are you? It has been so long.