When I object to Sotomayor it is not because an activist court would make law. It is her, I believe, unconstitutional belief that the rights of individuals are only those rights that are given to the individual by the State. As opposed to the classical liberal view, and Constitutionaly based, the individuals are endowed with natural rights (whether by “creator” or not does not consern me) from birth. The conservative principle should be that we agree to forfeit a very few rights in return for protection by the State but judges should stick to the Constitution. To make sure that the legislative body does not impede on the Constituional Rights of the individual. Sotomayor’s record shows she does not believe in individual Constitutional rights, nor does Obama for that matter.
Once again, I agree that consevatives should know why they believe what they believe, it would certainly help with many of the contradictions that come from the various conservative pundits.

Is it not a violation of Common Law itself for a public office to bring a complaint against someone in civil/commercial court without a sworn injured party?

If no injury, theft or breach of consensual contract has occured, how does any civil/commercial court have any jurisdiction at all?

Assuming no breach or damage, this would mean that no state or federal law actually applies to anybody?

I am very confused.

Thanks for your time,
Ben

That’s an interesting question and I’m afraid I don’t necessarily know the exact answer.

I would point to Louisiana here in the U.S. as a possible example (although not a country and not completely a common law jurisdiction). They retain many aspects of the old civil law tradition such as a civil code and concepts like obligations (instead of common law contract) and redhibition which are most certainly based on the old Roman civil law. Louisiana is also the only state not to adopt Article 2 of the Uniform Commercial Code, i.e. the U.C.C. (some might argue that the U.C.C. actually is an attempt to apply civil law concepts to common law jurisdictions and thus unneeded in Louisiana but that is a different story). I can tell you from experience that researching Louisiana case law is different from case law from other states in the U.S.

But Louisiana also shares many of common law traditions. Judges in Louisiana are not bureaucrats as they are in many civil law societies. Instead they are normally experienced lawyers with years of experience. Case law in Louisiana, although I believe it is generally not binding and not exactly like case law from common law jurisdictions, reads more like common law case law than civil law cases I have run across. Jury trails are also used in criminal cases when required per the Constitution.

So, I would describe the Louisiana system as more of an amalgam of the two systems. I would suspect (although I can’t say for sure) that Quebec has a similar system.

Hello, regarding this subject, the literature cites cases where more or less previously common law based countries, like pre-napoleonic France, shifted towards civil law based systems. I wonder if there are cases in the world that did the contrary, that is shifted from civil law based systems towards common law based systems. Thanks for the help.

Carlos in Guatemala Central America

US courts have been citing English case law ever since there were US courts. Of course, the frequency depends on the type of case and issue before the court but there are several major English cases that are still core to some aspects of US law. Vaughan v. Menlove is a good example (the reasonable man/person in tort). Hadley v Baxendale is another (foreseeability of damages in contract). Any law student who comes out of a US law school would be familiar with these cases.

Anyway, different jurisdictions and different courts have of course applied these principles slightly different over time and subsequent US decisions have tweaked the law to apply to different and unique fact situations. Yet that is the way the common law works.