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Common Law Review
 
Domů arrow Články arrow Issue 2 - Law in America arrow 00: Jan Žamboch - Editorial
00: Jan Žamboch - Editorial PDF Tisk E-mail

 

Editorial 

Law is older than legislature. This may sound like a paradox to a person raised in a continental tradition of civil law. However, laws have not always been a product of the will of a certain group of people.  Originally, rulers could only dream about legislative powers. Their role was to keep the laws that existed at the time. Naturally, these laws spontaneously evolved and they could only carve them into stone, but they could not create them. Spontaneous evolution is the basis for common law. Judges, who in particular cases expressed the rules, did not have to obey any instructions given to them by a ruler.

Roman ius honorarium and ius gentium evolved in a similar way as common law. Incidentally, the division of the Roman law between “ius” (spontaneously evolved law) and  “leges” (law given by a particular group of people or by the Emperor) corresponds in a large extent to the division of Anglo-American law between common law and statutory law. The difference between ius and leges today is not obvious due to codifications, especially by that of Justinian. Not only did he intend to write down the law, but he mainly expressed the idea that the Emperor was a person standing above all the people and appointed to perform the will of god. He was also the main source of the laws. In the light of this fact it is easier to understand Prof. Seng’s statement in his article “Aspects of the Common Law System in the United States” that common law includes certain “anti-government bias.”

                        This issue also deals with the US constitutional law. So along with the texts on such important matters as racial segregation, the death penalty or the right to have an abortion, we cannot avoid writing about Marbury v. Madison. This represents the origins of constitutional judicial review in the USA. Marbury v. Madison is not only much more interesting than one would hope, but it is also still very inspirational. We can learn this from the article “The UN and Judicial Review.”

                        In the fields of patent laws and anti-trust laws, which do not fall within the scope of the original common law, the Anglo-American influence is considered to be crucial. However, there is no consent to whether they are good examples to follow. Patents are generally understood as a source of progress, but they are undoubtedly a source of state monopoly and, as indicated in the article on Monsanto v. Schmeiser, it can even yield in expropriations. When reading the Microsoft case we have to ask some questions. First, what is wrong with a company that never used any violence against anybody and was only making peaceful contracts? Second, what kinds of benefits do the consumers have when the state punishes the company that serves them the best after all? Those who appreciate the common law with its “anti-government bias” will no doubt ask these questions.

 

Jan Žamboch

 
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