Philadelphia Reflections

The musings of a physician who has served the community for over six decades

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Robert H. Bork (1 of 1) 5 blogs
"The life of the law has not been logic. It has been experience. "--Oliver Wendell Holmes, Jr.

The Law

We have had judges and case law (also called common law) continuously since Roman times, longer than any government has survived. By contrast, "statutory "law usually responds more suddenly to the changing natures of rulers, often seeing military law or anything resembling it, as a temporary expedient for the survival of the state. The two forms of law are frequently suspicious of each other, so if both forms of law coexist, they often link through a Constitution defining their boundaries. Common law usually evolves slowly and coherently, whereas statutory law has less patience with traditions, and becomes based on some variant of force imposed by unrelated kings, emperors, tribunes or legislatures, often resisted by local citizens through compromise or rebellion. Much depends on whether or not there are long periods of stability between episodes of war. English common law traces back to the Norman Conquest of 1066, gaining its present form after notable negotiations with King Arthur, Charlemagne, and Francis Bacon, among many others. It seeks "fundamental" truths, eventually founded on the customs of the people defined in that same Constitution. The first written Constitution of any nation was the American one, And it was the only one to last two hundred years, even though several hundred Constitutions have been tried by numerous other attempted democracies. Generally speaking, constitutions define the boundaries of statutory law but also contain a Bill of Rights. The latter is politely worded to define limits to how a simple majority may learn the will of the public, or beyond which statutory authorities may not go without special forms of extra permission. The heart of American common law lies in the first ten amendments to the Constitution, written by James Madison, and called the Bill of Rights. It might well be stated that it protects minorities from majorities, avoiding armed rebellion, but even hinting at that recourse in the Second Amendment. Madison was chairman of the designated committee of the first Congress, extracting ten of the hundred proposals the committee received from fellow members. This degree of mistrust was certainly a clear sign of coming dissatisfaction with any form of government whatever, by a people who mostly hoped to be left alone.

 

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