Should criminal common law be brought back?

[Benjamin Frank]

From wiki:
Common law crimes no longer exist at the federal level, because of the U.S. Supreme Court's decision in United States v. Hudson and Goodwin, 11 U.S. 32 (1812). The validity of common law crimes varies at the state level. Although most states have abolished common law crimes, some have enacted "reception" statutes recognizing common law crimes when no similar statutory crime exists.

For years I didn't know this in Canada (where common law crimes have also been abolished) or the United States. I think it was ultimately the fault of a high school law class I took from a teacher who failed the bar exam, but I for years would tell people "when Parliament/Congress passes a law, its not like common law on this doesn't already exist. The purpose of Parliament/Congress passing a law is to alter the already existing common law."

Well, I could not have been more wrong!

I regard criminal common law as consistent with the 'administrative state.'
The benefits are:
1.Expert (in law) judges make new laws subject to alterations by Congress (and higher courts), and not ignorant and craven politicians.

2.Criminal Common Law is flexible in that it allows the already existing legal principles and precedent to be adapted to new situations. With criminal common law, nobody would say "the law is years behind changes in technology and needs to catch up."

To be sure, the judges themselves may be years behind understanding changes brought by technology, but that problem exists even without criminal common law, and ignorant and craven politicians have no better understanding.

Also, unlike in Canada, most criminal law in the U.S is at the state level (though 'the most serious crimes' are federal), so that Supreme Court ruling would not block the reinstatement of 'judge made law.' (Of course, then you'd have a problem with craven if not ignorant elected judges, which is an absurdity in its own right.)

[Antonio the Sixth]

Common law is an abomination. Judges should enforce laws enacted by the democratic representatives of the people, not make law based on their own whims and vague social conventions. This is unacceptable in any area of law, but takes on a uniquely perverse character when you're talking about actual crimes that can get people in jail or killed. This English barbarism should be stamped out.

[Benjamin Frank]

Common law is an abomination. Judges should enforce laws enacted by the democratic representatives of the people, not make law based on their own whims and vague social conventions. This is unacceptable in any area of law, but takes on a uniquely perverse character when you're talking about actual crimes that can get people in jail or killed. This English barbarism should be stamped out.

1.So instead you have democratic representatives passing laws based on whims and vague social conventions (which I'd argue is the reality.) This is why I refer to politicians as 'craven and ignorant.'

2.I disagree that most judges did that in practice. I think they mostly adopted already established legal principles and precedents to new situations.

[Antonio the Sixth]

1.So instead you have democratic representatives passing laws based on whims and vague social conventions (which I'd argue is the reality.) This is why I refer to politicians as 'craven and ignorant.'

That's called democracy. No one else can make this decision but the people or their legitimate representatives (which is not what a judge is).

2.I disagree that most judges did that in practice. I think they mostly adopted already established legal principles and precedents to new situations.

The question is whether they're interpreting the law or making it. The former is within their purview, the latter isn't.

[Benjamin Frank]

1.So instead you have democratic representatives passing laws based on whims and vague social conventions (which I'd argue is the reality.) This is why I refer to politicians as 'craven and ignorant.'

That's called democracy. No one else can make this decision but the people or their legitimate representatives (which is not what a judge is).

2.I disagree that most judges did that in practice. I think they mostly adopted already established legal principles and precedents to new situations.

The question is whether they're interpreting the law or making it. The former is within their purview, the latter isn't.

1.Demcracy/mob rule

2.Interpreting existing legal principles and precedents to make new law.

[Antonio the Sixth]

Nice thought-terminating cliché. I think we're done here.

[Benjamin Frank]

Nice thought-terminating cliché. I think we're done here.

That's fine, that's up to you. But, if you're going to argue on the basis of high minded notions of 'fanfare for the common 'man'' I don't think you should be surprised to receive a response in kind.

[Donerail]

Common law is an abomination. Judges should enforce laws enacted by the democratic representatives of the people, not make law based on their own whims and vague social conventions. This is unacceptable in any area of law, but takes on a uniquely perverse character when you're talking about actual crimes that can get people in jail or killed. This English barbarism should be stamped out.

The final decision in a criminal case is made democratically — by unanimous vote of a fair cross-section of the community who have heard all of the evidence in the case. Hard to get any more democratic than that.

At any rate, the idea that judges should simply "enforce laws" is a nice sentiment, but utterly detached from how criminal law works in practice. The chiropractors and car dealership owners who gather in the state capital a few months a year to make the law, perhaps unsurprisingly, usually produce statutes that are vague, overbroad, and contradictory ("It is illegal to exceed the speed limit," for instance). If you enforced it — a prosecutor's job, not the judge's — everyone would be a criminal.

The real criminal law is made by prosecutors, who decide what will be charged, and by jurors and judges, who check unreasonable charging decisions that run afoul of "vague social conventions." You couldn't, for example, actually get a conviction for going 2 mph over the limit – it's absurd. In that respect the criminal law already functions like a common law system.

That's called democracy. No one else can make this decision but the people or their legitimate representatives (which is not what a judge is).

?? Bizarre take. "The people" in the purest sense are reflected in the jury and, in most states, by the judge, who is an elected official with his own popular mandate.

[Benjamin Frank]

This article expands on the two benefits I mentioned as well as providing a much better legal understanding than I gave (and added to by Donerail)

https://tqdlaw.com/5-advantages-of-common-law-legal-systems/

Common law refers to the law made by judges and not the parliament. It’s basically that law that develops organically in due course and is based on the accepted shared values and customs of society.

As judges consider both criminal and civil matters, they make informed decisions, develop precedents, and deliver rulings. When all these things are taken together, they constitute common law. Some civil laws like negligence and torts began as common law. Common law systems come with many advantages, five of which are listed below.

For instance:

Specificity
The common law clarifies, expands on, and implements legislation. Acts of parliament wording are often generic and broad, providing only general information on the law. The focus is not on how the law should work in certain specific situations. Judges play a role in common laws by examining specific facts in each case, administering the law in line with findings, and interpreting relevant legislation.

Speed and Efficiency
Common law is more flexible, faster, and responsive than parliamentary law. Often, common law reacts and responds rapidly to community expectation, changing social values and so on.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I think having common law for civil purposes but not criminal purposes works just fine. I'll never understand how civil-law-only countries can possibly fit every imaginable set of facts into an allegedly-comprehensive civil code, but I would tend to agree with Antonio that anything that someone can be jailed or, in the US, killed for should be as clearly grounded in actual statutes as possible.

[Antonio the Sixth]

The final decision in a criminal case is made democratically — by unanimous vote of a fair cross-section of the community who have heard all of the evidence in the case. Hard to get any more democratic than that.

Jury trials are certainly a democratic guarantee (and they're a thing in civil law too!) but the idea that they can be a substitute for the supremacy of democratically enacted legislation is a deeply dangerous one. While juries are to some extent representative of their community, they aren't representative of the entire citizenry, and they are called upon to make a decision on a unique instance rather than to establish general principles for society to live by. Bad things happen when you start conflating the two, whether it be blatant double standards or conversely people being bound by decisions made in a completely different situation.

At any rate, the idea that judges should simply "enforce laws" is a nice sentiment, but utterly detached from how criminal law works in practice. The chiropractors and car dealership owners who gather in the state capital a few months a year to make the law, perhaps unsurprisingly, usually produce statutes that are vague, overbroad, and contradictory ("It is illegal to exceed the speed limit," for instance). If you enforced it — a prosecutor's job, not the judge's — everyone would be a criminal.

The real criminal law is made by prosecutors, who decide what will be charged, and by jurors and judges, who check unreasonable charging decisions that run afoul of "vague social conventions." You couldn't, for example, actually get a conviction for going 2 mph over the limit – it's absurd. In that respect the criminal law already functions like a common law system.

Then this is a problem with the political system, and should be fixed at the political level. Not all countries are plagued with vague, overbroad and contradictory statutes - or at least, some significantly less than others. The solution isn't to offload the burden on a different profession which was never meant for that purpose.

?? Bizarre take. "The people" in the purest sense are reflected in the jury and, in most states, by the judge, who is an elected official with his own popular mandate.

Speaking of which, don't get me started on this other (uniquely American) abomination. Judges should absolutely not be elected in any sane system. The impartiality required of a judge is fundamentally incompatible with the popular elections, and the idea that this makes law more democratic is a fanciful delusion.

[Donerail]

Then this is a problem with the political system, and should be fixed at the political level. Not all countries are plagued with vague, overbroad and contradictory statutes - or at least, some significantly less than others. The solution isn't to offload the burden on a different profession which was never meant for that purpose.

I applaud your quest to eliminate ambiguity in the English language. Good luck!

But I think you're missing the point. Even the most detailed statute is ultimately subject to prosecutorial discretion as to whether to bring charges, and juries retain their power to nullify. That's made easier by the way statutes are written, but there is a "common law" tradition that governs these things that more precise drafting cannot erase. You cannot remove that element without fundamentally restructuring how the criminal justice process works.

Speaking of which, don't get me started on this other (uniquely American) abomination. Judges should absolutely not be elected in any sane system. The impartiality required of a judge is fundamentally incompatible with the popular elections, and the idea that this makes law more democratic is a fanciful delusion.

That's called democracy. No one else can make this decision but the people or their legitimate representative.

[I spent the winter writing songs about getting better]

Common law is an abomination. Judges should enforce laws enacted by the democratic representatives of the people, not make law based on their own whims and vague social conventions. This is unacceptable in any area of law, but takes on a uniquely perverse character when you're talking about actual crimes that can get people in jail or killed. This English barbarism should be stamped out.

The final decision in a criminal case is made democratically — by unanimous vote of a fair cross-section of the community who have heard all of the evidence in the case. Hard to get any more democratic than that.

At any rate, the idea that judges should simply "enforce laws" is a nice sentiment, but utterly detached from how criminal law works in practice. The chiropractors and car dealership owners who gather in the state capital a few months a year to make the law, perhaps unsurprisingly, usually produce statutes that are vague, overbroad, and contradictory ("It is illegal to exceed the speed limit," for instance). If you enforced it — a prosecutor's job, not the judge's — everyone would be a criminal.

The real criminal law is made by prosecutors, who decide what will be charged, and by jurors and judges, who check unreasonable charging decisions that run afoul of "vague social conventions." You couldn't, for example, actually get a conviction for going 2 mph over the limit – it's absurd. In that respect the criminal law already functions like a common law system.

That's called democracy. No one else can make this decision but the people or their legitimate representatives (which is not what a judge is).

?? Bizarre take. "The people" in the purest sense are reflected in the jury and, in most states, by the judge, who is an elected official with his own popular mandate.

Do people actually get "convicted" for speeding tickets? I thought a citation would be different.

Regardless prosecutorial discretion is too often not invoked and it seems thar prosecutors often have an Inks-esque mindset toward enforcing the literal letter of the law without any other considerations. See the quotes here from prosecutors over charging a grandmother who bought a box too many of cold medicine for her grandkids that included ingredients used in making meth which she very obviously wasn't doing:

"I don't want to go there again," [Vermillion County Prosecutor Nina] Alexander told the Tribune-Star, recalling how the manufacture and abuse of methamphetamine ravaged the tiny county and its families.

While the law was written with the intent of stopping people from purchasing large quantities of drugs to make methamphetamine, the law does not say the purchase must be made with the intent to make meth.

"The law does not make this distinction," Alexander said…

Just as with any law, the public has the responsibility to know what is legal and what is not, and ignorance of the law is no excuse, the prosecutor said.

"I'm simply enforcing the law as it was written," Alexander said…

It is up to customers to pay attention to their purchase amounts, and to check medication labels, Alexander said.

"If you take these products, you ought to know what's in them," she said.

Or ones who insist on prosecuting and registering as sex offenders teenagers for sexting their own photos. Etc.

[Mister Mets]

Then this is a problem with the political system, and should be fixed at the political level. Not all countries are plagued with vague, overbroad and contradictory statutes - or at least, some significantly less than others. The solution isn't to offload the burden on a different profession which was never meant for that purpose.

I applaud your quest to eliminate ambiguity in the English language. Good luck!

But I think you're missing the point. Even the most detailed statute is ultimately subject to prosecutorial discretion as to whether to bring charges, and juries retain their power to nullify. That's made easier by the way statutes are written, but there is a "common law" tradition that governs these things that more precise drafting cannot erase. You cannot remove that element without fundamentally restructuring how the criminal justice process works.

Speaking of which, don't get me started on this other (uniquely American) abomination. Judges should absolutely not be elected in any sane system. The impartiality required of a judge is fundamentally incompatible with the popular elections, and the idea that this makes law more democratic is a fanciful delusion.

That's called democracy. No one else can make this decision but the people or their legitimate representative.

We currently have a system where judges, juries and prosecutors can be more generous than they need to be according to statutes to a criminal defendant. It would be a different if they can decide to be tougher than the statute calls for.

Among other things, it makes the law less predictable.