The Common Law - Framing - Moral foundations

[Zenaan Harkness]

An extract from the Annotated Constitution of the Commonwealth of
Australia, at §326.8(2).8 (Annotation 326, paragraph 8):

"Chancellor Kent does not regard the total denial of a common law
jurisdiction in criminal cases as based upon satisfactory principles;
and he cites with approval Du Ponceau’s opinion in favour of the
distinction drawn by the Court below in United States v. Coolidge
(§326.8(2).5).  Du Ponceau maintains “that we have not, under our
Federal Government, any common law considered as a source of
jurisdiction; while on the other hand, the common law, considered merely
as the means or instrument of exercising the jurisdiction, conferred by
the Constitution and laws of the Union, does exist, and forms a safe and
beneficial system of national jurisprudence.  The courts cannot derive
their right to act from the common law.  They must look for that right
to the Constitution and law of the United States.  But when the general
jurisdiction and authority is given, as in cases of admiralty and
maritime jurisdiction, the rules of action under that jurisdiction, if
not prescribed by statute, may and must be taken from the common law,
when they are applicable, because they are necessary to give effect to
the jurisdiction.”  (Kent, Comm. i. 339.)
"


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Now it is true that mainstream jurisprudence has fallen heavily in
rulings over the last century or more upon the principle that the common
law is no more than those precedents established in "democratic system"
courts of "law", i.e. that common law is nothing more than the sum of
judge-made law (precedents).

This is classic conservative framing (a troll tool no less).

When one reads and thinks a little deeper, there is another, more
fundamental, principle which we must remind ourselves of:

Notwithstanding the usurpation of the term "common law" as that of the
law which can be understood by the common man and also abides by the
common man's sense of right and wrong and what is commonly understood in
a community to be actions within the boundaries of its mores, customs
and morality,

these "common man" standards, this definition of the common law as
"those practices and customs of the community since time immemorial", is
fundamental to fixing some of the problems with our "democratic" legal
system.

"Itellectuals" typically love to frame every debate in terms which
accord with their naturally conservative positions.

That is only ok to the extent that such conservative positions lead to
conversations, foundations and principles which are supportive of
"common man" morality and the "time immemorial" customs of "the
community".


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Key principle for every human who appears in a "court of law":

There is nothing before the court (not even laws) except that which is
brought before the court.

"The court" is synonmous with "the judge" or "the magistrate".

The human who presides over a court proceeding, carries with them
presumptions, such as:
 - s/he who appears, consents to the jurisdiction

 - the jurisdiction of the court is presumed

 - any challenge to the jurisdiction of the court must be avoided at all
   costs (this is big in Australia, particularly the lower courts - it's
   hard to get up on a jurisdictional challenge if you don't have your
   wits about you)

(so these assumptions, presumption of jurisdiction, etc, -are- with the
court, or part of the court if not challenged - unfortunately the courts
are neither unbiased, nor free from being beholden to unlawful (and most
challengingly, unspoken) authorities)


So, unlawful/immoral jurisdictions, to be successfully challenged by an
individual human, require a fair dose of rebutting all presumptions of
jurisdiction, besides bringing before the court one's challenge to the
jurisdiction.


The only jurisdictions which one is morally obliged to submit to, are
those jurisdictions which are not repugnant, i.e. those jurisdictions
which accord full satisfaction to common morality and what might be
termed the common law.

Is it any wonder that "the common law" is a term which has been under
attack for a very long time?


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Framing the conversation.

It is the duty of those with conscience, knowledge of good and evil, to
bring forth communication which upholds good and denounces evil.

This requires challenging and "shooting down" those framings which
directly undermine intended discussion on morality, as well as
endeavouring to support and encourage communication which has moral
foundations.


All unspoken presumptions framing default support for the status quo
(e.g. "the western regime"), particularly when used to set aside
questions of what is right and what is wrong, are antithetical or
opposed to the stability of our society, since with no foundation of
right and wrong, with no support in the system for those who act from
conscience, the system has become corrupted, most likely beyond repair.


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Good luck fellow humans.