The common sense of the common Law Is

“The common sense of the common Law” Is it common sense and could it be applied in a libertonia?

Concept breakout – is there a “Common sense? ” n n Commonly accepted or ‘reasonable ideas’ Sense (reason) that is generally believed to be sound (valid). One problem : Common sense is said to be 'uncommon' Are there q q Areas of common agreement between people? Areas of social issues that are largely uncontroversial?

Concept breakout – what is “Common law” n n Commonly accepted law -Law than derives (emerges) from sensible behavior and is generally believed to be just. One problem : law are rules coercively enforced. Law that is said to be 'found' by judges (a dispute resolution service provider) in the 'common' morality (generally accepted social norms) and fixed by the rule of 'precedence', and not 'made' (imposed by a parliament). The distinction is however rather subtle. Common law systems or traditions: q q q Roman common law, Roman-Dutch common law, English common law.

Concept breakout - Language, illusions, semantics n the problems of statist speak q q q ‘Government’ ‘State’ ‘Community’ Rules Laws n n q q Scientific & the tyranny of nature Legal & the tyranny of man Ethics – rules of the self Manners – self enforcing or low risk breach rules

Concept breakout – Value virtue and risk n n n n Human action Solipsism and certainty Evolution – Leon’s ‘rustle in the grass’ Risk Selfish gene Social rules (law? ) as social risk management Risk cost Minarchy and Anarchy

Concept breakout – the “Libertarian Standard” n Human relationships should q q n n be consensual exclude coercion Individual Liberty General liberty - the maximum liberty for the greatest number

Concept breakout - Appling the standard – flavours of libertarianism n n Anarchy - no coercive government Minarchy – no coercive or limited coercive government Privity – individual private government Corporative – Private government as service

Concept breakout – example of a statist legal system based on common law n Common Law q Custom q South African Law Judicial Precedent n Legislation q q Legislation The Constitution Persuasive Sources q n n Roman Dutch English Parliament Provincial Legislation Bye-Laws Case Law Custom

Concept breakout – Branches of law in a statist based common law system n n n International / National Procedure / Substantive Public / Private q q q Persons Things Obligations

Quick survey of kinds of rules dealt with under common law n Private international law (conflict of law) q q q n Domicile Lex loci sitae Lex loci contractus Evidence and rules of natural justice q q q A fair procedure (the manner in which disputes are resolved To confront your accuser To be allowed to defend yourself (audi alteram partem) To know the case you have to meet (a corollary) To not be subject to bias

Quick survey of kinds of rules dealt with under common law n Law of persons q q q Status of persons (factors – age, sex, mental capacity) Legal Capacity (contract, to sue, to commit wrongs) Parent & child (Custody, authority & responsibility)

Quick survey of kinds of rules dealt with under common law n Law of things q q q Ownership & its components & protection Possession and its protection (social risk) Classification of things and contextual rules (movables, immovable and immaterial things) Things and security Unfair competition (analogues of defamation, name theft, impersonation)

Quick survey of kinds of rules dealt with under common law n n Law of obligations Obligations are voluntarily assumed coercive relationships (at least generally) q Delict (implied obligations) n n n q Contract n q q n n negligent or intentional causing of damage to person (physical, mental and reputation), and property Agreements subject to coercion Good Samaritan Estopple & fraud You can contract out of (delict) or refuse to assume (contract and good Samaritan) You can not contract out of estopple or fraud – but then you can behave yourself and avoid this problem

Quick survey of kinds of rules dealt with under common law n Contract q q q Certain agreements between Competent parties that are Lawful, Possible and contracted with the Intention of being bound coercively) that Meet legal formalities

Agreements Define Expectations The Managing Expectations Process Ask Clarify Expectations Align Control Expectations Fulfil Meet or Exceed Expectations

Purchase & Sale n Essentialia q q q n n Merx Pretium Transfer of Possession Risk Indemnities n Naturalia q q q Warranty Against Ejectment Latent Defects (voetstoots) Actio Rehibitoria Actio Quanti Minoris Manufacturers Liability

Letting & Hiring - Things n Essentials q q n n Thing or property Use or enjoyment Period Rent (price Naturalia Landlord q q Delivery use Usable condition and maintain q q q n n Naturalia (cont) Undisturbed possession Compensate for improvements Pay taxes Tenant q q q Pay rent Use for purpose Return undamaged

Letting& Hiring – Services (employment) and work (independent Naturalia (cont) n Essentials contractor) n q q n n Specified work Period Remuneration Authority / Independence Naturalia Employer q q Accept employee into services Provide work q q q n Pay remuneration Pay quantum meruit Safe working conditions Employee q q q Tender services Reasonable care Refrain from misconduct

Can these rules be made applicable in a minarchy or anarchy n n n Yes but… Depends on constitutional issues Minarchy q Voluntary tax q Constitution for a term of years - renewable q Statist coercion and monopoly on instruments of coercion q Law making capacity limited by a ‘libertarian’ bill of rights including sever constrains ton regulating property, money and commerce. Anarchy q Institutions all voluntary and a result of ‘individual action’ q An internal (local) private ‘international’ law q Anarchical nation - If the concept ‘nation’ can be applied to an anarchy Lawyers, courts, [defence agencies] would need to clean it out – adapt it the existing common law to take out statist elements