"Vatican Instructs Spanish Bishops To Disavow Ex-Gay Group" -tragic

Discussion in 'Anglican and Christian News' started by anglican74, Jul 15, 2021.

  1. Botolph

    Botolph Well-Known Member

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    I am not at all sure I understand this point.

    In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue (one party or the other has to win, and on disagreements of law, judges make that decision). The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch (the interactions among these different sources of law are explained later in this article). Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

    The common law—so named because it was "common" to all the king's courts across England—originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. The British Empire later spread the English legal system to its far flung colonies, many of which retain the common law system today. These "common law systems" are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system.

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    Legal systems of the world. Common law countries are in several shades of pink, corresponding to variations in common law systems.
    Today, one-third of the world's population lives in common law jurisdictions or in systems mixed with civil law, including Antigua and Barbuda, Australia, Bahamas, Bangladesh, Barbados, Belize, Botswana, Burma, Cameroon, Canada (both the federal system and all its provinces except Quebec), Cyprus, Dominica, Fiji, Ghana, Grenada, Guyana, Hong Kong, India, Ireland, Israel, Jamaica, Kenya, Liberia, Malaysia, Malta, Marshall Islands, Micronesia, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Palau, Papua New Guinea, Philippines, Sierra Leone, Singapore, South Africa, Sri Lanka, Trinidad and Tobago, the United Kingdom (including its overseas territories such as Gibraltar), the United States (both the federal system and 49 of its 50 states), and Zimbabwe. Some of these countries have variants on common law systems. In these countries, common law is considered synonymous with case law​

    So, I as an Australian might appeal to common law as the source of my rights to free speech. I defence of that I would search out cases where it had been ruled that there was a right to free speech upheld. I could also appeal to the given general understanding that it is accepted generally in our society that I have a right to free speech, and it is essentially part of the social contract, is indeed not part of natural law. I might also appeal to the UN Declaration of Human Rights to sustain that and point to Australia being a signatory to that document. Of course in the US I would be blessed to be abl to make my appeal to the 1st amendment.
     
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  2. Rexlion

    Rexlion Well-Known Member

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    Wow, I'm amazed that Chrysostom got that so wrong. The Bible teaches us that man did not have the ability to distinguish evil from good at his creation; man acquired the knowledge of good and evil through disobedience and unbelief when Adam and Eve ate the forbidden fruit. It certainly was not ingrained in man 'by nature.'

    That said, we all do have that knowledge of good and evil as part and parcel of the original sin.
     
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  3. Invictus

    Invictus Well-Known Member

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    In my experience, the more one studies St. John Chrysostom, the less reliable he appears to be as a biblical interpreter.
     
  4. Invictus

    Invictus Well-Known Member

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    This is not correct. In terms of procedure, the most basic division is of civil law vs. common law, and it just so happens that civil law in Western jurisprudence is based on Roman law, which is often treated as equivalent to natural law. There was very little statute law at the State level in the US until well into the 19th cent. Until that time, judges ruled in accordance with English common law, setting new precedents along the way, wherever the statutes were silent. The Bill of Rights didn’t uniformly apply at the State level until after the Civil War, so in most everyday disputes a citizen’s rights were determined by the common law inherited from the colonial era.
     
  5. Stalwart

    Stalwart Well-Known Member Anglican

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    That’s not a basic division. There is nothing eternal or foundational about either roman law or common law; both are accidents of history. There could be an entirely new tradition of law a thousand years from now, which would be perfectly fine, but that wouldn’t add a third fundamental category of law to the world.

    Fundamental categories revolve around the question of how a law itself is to be judged. If Positive Law is the right view, then the law is judged merely by its passage: was it passed validly? Then it is a legitimate law (even if it says, to kill 1 million people). But if Natural Law is the right view, then the law may be validly passed and yet still be invalid, if it fails to adhere to NL criteria (right reason, etc). Another fundamental law category is hereditary: A law is just if it matches inherited legislation.

    These are the basic types of jurisprudence. Positive law, natural law, hereditary law, etc. Basic fundamental categories that judge how the very law itself is to be judged.

    So for example, in common law a ruling is made through judicial process rather than statutes. But when a judge makes a common law ruling, he can choose a “positive law” framework; the law is just merely from the fact of me passing it. Or he can choose a natural law framework: yes I passed this law, but still it is only valid if it adheres to unchanging principles, right reason, etc.

    Until the widespread adoption of Positive Law in English jurisprudence in the late 1800s, all of English jurisprudence was to a large extent governed by Natural Law principles. So much so, that common law was considered synonymous for natural law. St. Germain writes I think the 1530s, “we don’t customarily invoke the term natural law, but common law which is equivalent”.

    But once positive law became dominant, horrid disasters befell our nations. Want to pass a law allowing women to kill their fetuses? Sure, bam, passed. It’s valid, no other validation needed! Want to pass a law where a man marries a man? Sure, passed, no other wider validation required! We have unmoored our laws from all concepts of nature, justice, right. If our legislatures pass a law, be it never so wicked and unjust, they consider it a valid law. But it’s not. A wicked law is no law, and one may freely break it without offending God, or justice, or nature.
     
  6. Invictus

    Invictus Well-Known Member

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    There is more than one way to classify the world’s legal systems. Civil vs. common is one of them.
     
  7. Rexlion

    Rexlion Well-Known Member

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    The two main types of law in the US today are civil law and criminal law. The body of law in both areas is so well developed here that an appeal to common law grounds would not be very likely to prevail, although not impossible. I have no idea how it would be in other countries, however.
     
  8. Invictus

    Invictus Well-Known Member

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    Different sense of “civil”. Our jurisprudence is common law at the federal level and in every state except Louisiana. The UK is also a common law country. France and Germany are civil law countries. (There is civil vs. criminal, and civil vs. common; the former refers to the type of penalty the Court is authorized to impose, the latter refers to whether the law is codified or non-codified. In the U.S. both civil and criminal courts are common law courts.)
     
    Last edited: Jul 17, 2021
  9. ZachT

    ZachT Well-Known Member

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    I've only read the Paradoxa Stoicorum and the Cambridge Selections of De Re Publica, and only ever in English.

    I don't see an error in my reading of Romans, but I'll admit that this is only a recent realisation I've come to of my own accord, so I'm happy to discover I'm wrong. I'm not familiar with Voluntarism, I'll have to read Scotus, and re-read Aquinas to temper it, when I can find the time.
     
  10. Rexlion

    Rexlion Well-Known Member

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    Our civil law's roots are in English common law, but I trust you're not saying that it is still known as "common law." If my memory serves me correctly, practically any legal argument in civil court will be based upon statute, case law, or procedure, not upon English common law in which they once (long ago) found their basis.

    Are you by chance a practicing attorney, though? If so, your memory would be more fresh than mine. I earned my J.D. in '86 but never practiced.
     
  11. Invictus

    Invictus Well-Known Member

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    After over 200 years, American case law has taken over, yes. Courts in this country don’t cite English precedents anymore, for the most part. A judicial system that relies on case law is a common law system.