Wednesday, 19 October 2011

Issues with the Common Law

English Common law is preoccupied with property. The vast majority of common law, from nuisance to contract, deals solely with property rather than humanity. Why this emphasis on property and ownership?
It is easy to see where this fixation arose. Gause's principle tells us that with limited resources, individuals must compete for survival. And so the liberal capitalist doctrine of ownership arose, the fruits of our labours, to be protected at all costs.
But imagine a utopia, free of want. In this Eden, every individual can have everything they need with little to no labour. There is no purpose in competing or striving for more resources, as they will simply go to waste. What purpose would the law serve in Eden, if not to protect property?
The law should protect human rights. Rather than being bound by precedent and property, every civil or criminal case should be judging on the basis of rights infringement. By doing this, was A depriving B of their right to dignity? Was C discriminating against D on the basis of race, or gender, or religion? Beyond protecting these essential rights, what further need is there for law when property and wealth and ownership are no longer at stake?
In Eden, law should be remedial, not punitive. While it is important to discourage violation of rights, and imposing penalties may be the only way to do so, the focus of law should not just be punishing the guilty. Consider a personal injury case; under Common Law, personal injury deprives an individual of their enjoyment of their own property. The "remedy" is usually a punitive fee to be paid to the injured party, to compensate for damages and punish the guilty. But if there is no property (in the exclusive, possessive sense) then why have this focus? Why not instead impose a duty of care upon the liable party, and let them work together with the injured party to help them recover and forgive on their own terms?
Idealistic maybe. But better than our current system, in which every infringement is considered in financial, rather than social or emotional terms. I was hit by a car last week on a pedestrian crossing. I bear no malice against the driver; if I had been paying more attention then the car would not have hit me, and as it is I am lucky that my damages are relatively minor. The driver and I have both learnt valuable lessons from this incident about paying attention on roads. There was no malice of forethought; it was a genuine accident. Why then was he negligent, and am I potentially entitled to claim damages?

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