That's not true. You are missing the whole process. A law must first be passed through the house of commons. Politicians in the house of commons are appointed by the population and are there to represent the population. They consult with the population itself in his constituency and then changes the law according to the needs of the population. The bill then passes to the Senate, where it is approved and then the judges apply it. As you can see, the laws in this system are not created out of thin air. They are based on the needs of the people, unlike common law, that relies n the needs of the judges...
But THAT's not true. judges rule on individual cases. The next judge decides whether the rule makes sense in the next case. If it does, he applies that prior rule, if there is some difference in the new case that makes the prior rule a bad one , the judge "distinguishes" the new case and invents a rule that applies to it.
Every application of every precedential rule has ample chance to be tailored to the facts of the specific case. The most a legislature ever has is a vague sense of a particular problem, and no understanding of the multiplicity of "individual cases" that exist in the real world.
Also, this is not "common law" even the Napoleonic Code systems endorse the use of precedent. Using precedent is a completely different animal that "common law" which has to do with the source of legislative authority (and which vests some of that authority in courts and not just the legislature).
As for "the process" the legislature may well consult its constituents, if by "constituents" you mean "lobbyists" and "major campaign donors." Also, they frequently consult with "their asses" from which they pull many of the rules that they enact into law.
Wrong. A case appears in a constituency. If a controversial decision is made based on existing law, the population may ask the politician to change the law to better suit the needs of the population.
If the population dislikes a statute, they can have it changed by the legislature.
If the population dislikes a particular court decision, they can ask the legislature to overrule it (at least in the U.S.). The only time that is at all tricky is when the court decision is constitutional in nature, and even then "the people" can try to organize to have the Constitution amended.
Precedent related to either common law principles or to statutory interpretation, yields to new statutes (especially when targeted at a particular court decision). That's always been the way it has worked.
Again, statutory law is based on actual concrete facts.
Where is this polity you are describing? Please find me the specific facts that led to the enactment of the Civil Rights Act of 1964. You can't, because there was no "single case" that led to it, there were hundreds (or thousands) of incidents. Is the Civil Rights Act the "best" law for each and every case of discrimination that has ever or could ever arise? No. It was a series of rules designed around anecdotal evidence of *prior* discrimination, on the hopes that those cases, taken as a sort of fuzzy aggregate, would be similar to *new* cases that arose in the future.
Statutes do not generally apply retroactively. When the legislature passes a law, even in the rare instance where there is a single case involved, and the legislature "knows" the facts, the statute doesn't normally apply to
that case it applies to the future, whose facts are always unknown. (Though, really how can they "know" these facts? Did they allow both sides to submit evidence and prepare arguments? Did a finder of fact help guide them? No??? A court, with its rules of evidence and a full opportunity for both sides to make their case regardless of politics is far better equipped to discern facts in a particular case or controversy than a legislature.)
You compltely missed the point. There's no logic in the existence of property. However, considering the existence of property, property law is based on logical considerations given its existence. For instance, it is logical that a property is yours if you have control over it.
You think so?
Yes, because you now hae control over it. Altough, if the previous owner can be identified you can be nice and return it, but that doesn't change that you now have control over the object.
Buzz! Wrong answer but thanks for playing. Found property (usually by
statute, which you claim to <3) typically belongs to its previous owner unless it has been purposefully "abandoned." In NYC, the police conduct stings in the subway, where they leave backpacks out in the open and unattended. Passersby pick them up and, if they do not turn them into the police, the police arrest them, based on statutes. The NY State legislature saw that people were walking off with "property" and passed rules exactly contrary to your intuition. I guess that means they are wrong.
Still the "it's yours until you abandon it" rule is pretty common. The old saw "possession is 9/10ths of the law," is
not in fact the law that legislatures recognize.
Yes, because the property cannot be controlled by the last person who controlled it before. If you put the bill on the table, that bill won't do anything on its own. Only the person who has control over it can do something with it. If you claim that the bill belongs to the last person and you somehow find a way to return it to the last person, then that bill was actually yours because it was you who made the decision to return it and it was you who exerted the action on that object.
Again, legislatures seem to have failed you on that. "Control" is not the defining attribute of property. Control is, interestingly a strong factor in certain aspects of the *common law* of property (like in the case of "adverse possession") but you claim to hate common law.
As I said before, property law is based on logic, from the point of view of the already existing system of property. Not having "property" is also logical. One can argue that such sytem would be more beneficial. That doesn't mean that having property is illogical. You seem to have a very black and white way of thinking. "it's either logical or illogical". That's not how it works.
Actually, that choice is not binary, there are three options. Some things flow from logic. Some things are refuted by logic. Some things are neither. I already said that, when I stated that property law does not flow from the font of Reason. No where did I say "property is illogical."
Property law, though, is not based on "logic" there may be subcomponents of it that are based on logic, but the exact rules are not. Case in point, see your argument from control. Somehow, if you think that flows from logic, the legislatures got it wrong, and the courts and their precedents are, in fact, closer to your thinking.
That makes no sense. It's like saying that language provides zero certainty because it is logical. What you just said is exactly the reason I don't agree with common law in the first place. In the system I speak of, the law is set and the judges can only follow it- they cannot change it whenever they feel like doing that.
Your analogy is inscrutable. If a judge has no precedent on which to rely, to what does he look? Logic? As noted, logic doesn't compel him to apply *any* particular rule to the case of the found bill. You seem to think that logic demands that he who controls the bill "owns it" but no legislature I know of agrees with you on that, so either you are illogical, they are all illogical, or the rule of control you cite falls outside the realm of logic or illogic.
Most laws (common law, statutory law and civil law) suggest that you own a thing until you (i) knowingly abandon it or (ii) for public policy and ease of administration reasons, the state otherwise sees fit to strip you of your property (though the later usually requires that you misuse the property in some criminal way, that you demonstrate that you have "all but" abandoned it, or the inquiry into who owns the property has to be so highly debatable, that it's not worth any one's time). Hence, if I accidentally drop my wallet, it doesn't become property of the guy who finds it. On the other hand, if I purposefully throw in in the garbage and the guy behind me fishes it out, then I have abandoned it and it can become his property. Similarly, if you were to steal $100 from me, it's still mine, notwithstanding that you the thief may now control it.
My point is that if the state is going to enforce bilateral promises (contracts), there's really no reason for it not to enforce one-sided promises too. That's not to say they are logically compelled to enforce unilateral promises, but it would not be illogical either. The entire question of whether to enforce promises, contractual or otherwise, cannot be answered using logic without a lot of assumptions being made.
Again, you are completely dismissing an entire political system.
So are you. Also, hyperbole much? "Completely dismissing"? Seriously? Get a grip.
I acknowledge that the civil law system
works...BUT I do dispute that it works as well as the common law.
Take a look at the two financial capitals of the world right now, London and New York, where contracts and property law are considered to be so good that people will select NY or U.K law to apply to their business deals even in cases where they have little contact with those jurisdictions.
Both of those are common law legal systems. Nobody goes out of their way to select French law as governing for their agreements or disputes. yet I see people selecting NY and U.K. law all the time. In fact, I have seen people annoyed when they *had to* apply civil law to their business dealings. In large part that is because common law is considered more nuanced (and hence more likely to respond to the individual details of a given case or controversy) and more predictable than civil law counterparts.
People have no problem changing jurisdictions when the law suits them better elsewhere. Delaware wasn't always the preferred State in which to incorporate, it just changed it's laws and so people started changing their companies' states of organization to Delaware to take advantage of the perceived "better" laws.
