“The common sense of the common Law”

Is it common sense and could it be applied in a libertonia?

Concept breakout – is there a “Common sense?” Commonly accepted or ‘reasonable ideas’ Sense (reason) that is generally believed to

be sound (valid). One problem : Common sense is said to be

'uncommon' Are there

Areas of common agreement between people? Areas of social issues that are largely

uncontroversial?

Concept breakout – what is “Common law” Commonly accepted law -Law than derives

(emerges) from sensible behavior and is generally believed to be just.

One problem : law are rules coercively enforced. Law that is said to be 'found' by judges (a dispute

resolution service provider) in the 'common' morality (generally accepted social norms) and fixed by the rule of 'precedence', and not 'made' (imposed by a parliament). The distinction is however rather subtle.

Common law systems or traditions: Roman common law, Roman-Dutch common law, English common law.

Concept breakout - Language, illusions, semantics the problems of statist speak

‘Government’ ‘State’ ‘Community’ Rules Laws

Scientific & the tyranny of nature Legal & the tyranny of man

Ethics – rules of the self Manners – self enforcing or low risk breach rules

Concept breakout – Value virtue and risk Human action Solipsism and certainty Evolution – Leon’s ‘rustle in the grass’ Risk Selfish gene Social rules (law?) as social risk

management Risk cost Minarchy and Anarchy

Concept breakout – the “Libertarian Standard” Human relationships should

be consensual exclude coercion

Individual Liberty General liberty - the maximum liberty for the

greatest number

Concept breakout - Appling the standard – flavours of libertarianism Anarchy - no coercive government Minarchy – no coercive or limited coercive

government Privity – individual private government Corporative – Private government as service

Concept breakout – example of a statist legal system based on common law Common Law

Roman Roman Dutch English

Legislation Parliament Provincial

Legislation Bye-Laws

Case Law Custom

South African Law

The Constitution

Custom

Common Law

JudicialPrecedent

Legislation

PersuasiveSources

Concept breakout – Branches of law in a statist based common law system International /

National Procedure / Substantive Public / Private

Persons Things Obligations

Quick survey of kinds of rules dealt with under common law Private international law (conflict of law)

Domicile Lex loci sitae Lex loci contractus

Evidence and rules of natural justice A fair procedure (the manner in which disputes are

resolved To confront your accuser To be allowed to defend yourself (audi alteram partem) To know the case you have to meet (a corollary) To not be subject to bias

Quick survey of kinds of rules dealt with under common law Law of persons

Status of persons (factors – age, sex, mental capacity)

Legal Capacity (contract, to sue, to commit wrongs)

Parent & child (Custody, authority & responsibility)

Quick survey of kinds of rules dealt with under common law Law of things

Ownership & its components & protection Possession and its protection (social risk) Classification of things and contextual rules

(movables, immovable and immaterial things) Things and security Unfair competition (analogues of defamation,

name theft, impersonation)

Quick survey of kinds of rules dealt with under common law Law of obligations Obligations are voluntarily assumed coercive relationships (at

least generally) Delict (implied obligations)

negligent or intentional causing of damage to person (physical, mental and reputation), and property

Contract Agreements subject to coercion

Good Samaritan Estopple & fraud

You can contract out of (delict) or refuse to assume (contract and good Samaritan)

You can not contract out of estopple or fraud – but then you can behave yourself and avoid this problem

Quick survey of kinds of rules dealt with under common law Contract

Certain agreements between Competent parties that are Lawful, Possible and contracted with the Intention of being bound coercively) that Meet legal formalities

Agreements Define Expectations

The Managing Expectations Process

AskAlign

Fulfil

Clarify Expectations

Control Expectations

Meet or ExceedExpectations

Purchase & Sale

Essentialia Merx Pretium Transfer of Possession

Risk Indemnities

Naturalia Warranty Against

Ejectment Latent Defects

(voetstoots) Actio Rehibitoria Actio Quanti Minoris Manufacturers Liability

Letting & Hiring - Things

Essentials Thing or property Use or enjoyment Period Rent (price

Naturalia Landlord

Delivery use Usable condition and

maintain

Naturalia (cont) Undisturbed possession Compensate for

improvements Pay taxes Tenant

Pay rent Use for purpose Return undamaged

Letting& Hiring – Services (employment) and work (independent contractor) Essentials

Specified work Period Remuneration Authority /

Independence Naturalia Employer

Accept employee into services

Provide work

Naturalia (cont) Pay remuneration Pay quantum meruit Safe working conditions

Employee Tender services Reasonable care Refrain from misconduct

Can these rules be made applicable in a minarchy or anarchy Yes but… Depends on constitutional issues Minarchy

Voluntary tax Constitution for a term of years - renewable Statist coercion and monopoly on instruments of coercion Law making capacity limited by a ‘libertarian’ bill of rights including

sever constrains ton regulating property, money and commerce. Anarchy

Institutions all voluntary and a result of ‘individual action’ An internal (local) private ‘international’ law Anarchical nation - If the concept ‘nation’ can be applied to an

anarchy Lawyers, courts, [defence agencies] would need need to clean it out

– adapt it the existing common law to take out statist elements