Introduction
Common law arises from the decisions made by court judges rather than from the actions of the legislative or executive branches of government (Gray 120). Under the common law system, greater weight or precedence is placed on common principles that bind similar courts or tribunals considering that similar facts can be treated in the same manner on different occasions. This means that the decisions made by a certain court or tribunal in the present will be precedential in the future.
In particular, when the concerned parties in a common law court cannot agree on the content of the law at any given time, they are obliged to make reference to previous precedential decisions on similar disputes (Hwang 225). However, when a common law court encounters a dispute that has never been decided anywhere in history, the presiding judges have the responsibility to create precedent, which will bind future court decisions.
Furthermore, common law does not bind all kinds of courts because it can only apply within certain jurisdictions (Gray 125). The use of common law is subject to two major philosophical doctrines. On one hand, it is proposed that common law should reflect more libertarian principles. On the other hand, it is argued that common law should be based on more utilitarian principles.
In this paper, a case is developed for the argument that common law should reflect more libertarian principles as opposed to utilitarian principles. To do so, this paper makes reference to different historic cases that provide precedence for the current and future court decisions.
Utilitarian versus Libertarian Principles of Common Law
The philosophical principle of utilitarianism proposes that the main goal of morality should entail maximizing happiness or ensuring that pleasure prevails over pain and human suffering (Machan 46). Specifically, the proponents of utilitarianism propose that human beings should be committed toward maximizing utility or those actions that produce more pleasure compared to pain and suffering.
On the surface, it will appear that the utilitarian theory provides expedient solutions for every single problem in the world. However, a closer look at the utilitarian principle shows that it fails to provide guidance on how to handle serious legal issues such as murder, theft, and oppression considering that it has no place for individual human rights and human dignity; hence, it might not be a good component of objective common law (Machan 47).
On the contrary, the doctrine of libertarianism proposes that everyone should have the space and opportunity to achieve whatever goals, provided they do not violate the rights of other people (Machan 57). Furthermore, libertarianism favors the idea that the state or government should not limit the rights of individual citizens. In addition, it is unfair for the state or government to impose the values and beliefs of the majority on individual citizens (Arthur and Shaw 484).
Based on the foregoing, it appears that the doctrine of libertarianism upholds human dignity, individual rights, and human progress. The abovementioned libertarian principles have been used widely in various historic cases around the world. In the following discussions, summaries and analyses of various cases are provided to render support for the argument that common law should reflect more libertarian principles as opposed to utilitarian principles.
The Queen v. Dudley and Stephens (1884)
In this historic case, the court was presented with an incident of murder in which two grown English seamen were charged with murdering a young English boy. The court was informed that the three individuals, together with another grown man who was not part of the suit, were stranded on the high seas, about 1600 miles from dry land. For about 20 days, the three men and one boy survived in the sea without enough food and drinking water.
On the twentieth day, the accused proposed to the deceased that if they did not receive help within the next few days, they would sacrifice one individual for food to save others from perishing. The young boy never consented to the sacrifice, but instead he was killed because the other two argued that they had dependants at home.
In the prisoners’ defense, their lawyer argued that the two men were forced to commit the offense out of necessity because if they did not kill and eat the boy, all four individuals would have perished (Arthur and Shaw 360).
On the contrary, in delivering the judgment of the court, the judge observed that the defense lawyer’s argument did not hold, and found the accused men guilty of murdering the young boy (Arthur and Shaw 364). From the foregoing case, it appears that the rights and liberties of an individual must be upheld regardless of the underlying benefits or costs.
From the utilitarian viewpoint, the defendants’ lawyer argued that the actions of the accused were justified considering that if all the four men had died in the sea, it would have caused a lot of pain and suffering, especially to the two grown men’s families. Hence, the accused were forced to carry out the action that produced the greatest pleasure and happiness to many people.
Nonetheless, as stated clearly by the judge, necessity and the search for happiness is no excuse to end another person’s life. This view upholds the libertarian principle, which states that individual rights must not be exercised in a manner that interferes with the rights and liberties of other people (Arthur and Shaw 364).
The Law of Property Ownership and Acquisition
This is another classical case that magnifies the need for individuals as well as governments to respect individual rights with regards to property acquisition and ownership. From the libertarian viewpoint, it is widely argued that private property ownership is a fundamental individual right that should not be interfered with by any law, but instead legitimate property laws should uphold and safeguard the rights to acquire and use property.
Similarly, libertarians contend that individual citizens should reserve the right to own as much property as they wish if they have enough resources (money) to achieve their goals (Arthur and Shaw 484).
However, when individual citizens practice their private property ownership rights in a manner that interferes with the rights of other people, the state or government is under obligation to regulate or even confiscate privately-held properties. Here, note that the state or government must provide enough grounds and compensate the private owners accordingly before confiscating any privately-owned property (Arthur and Shaw 484).
These libertarian arguments were upheld in the Hawaii Housing Authority et al. v. Midkiff et al.’s case in which the court was informed that only 72 individual citizens controlled 47 per cent of all public land in the state of Hawaii. While this kind of land ownership was allowed under the then existing property ownership laws, the state had noted that the activities of the 72 private owners were responsible for the fluctuating land prices and other injustices, which were hurting both public and government welfare.
In delivering the judgment of the court, the presiding judge observed that the state of Hawaii was right in reforming the then existing land ownership laws to allow the government to acquire privately-owned land and place it under public use after compensating the private owners.
This clearly shows that when a private individual practices private rights in a manner that interferes with the rights of other people, the state or government can step in to normalize the situation for the common good of the public. Hence, the foregoing libertarian principle should be clearly reflected in common law in all occasions.
Private Agreements and Contracts
Besides spelling out the rules that should govern the private ownership of property, libertarian principles form the basis of private agreements or contracts. Private agreements or contracts are privately-imposed statements or duties, which state the obligations of one party toward another party (Arthur and Shaw 515). In line with the fundamental principles of libertarianism, individual parties must respect and uphold the rights of other parties when carrying out the terms of the private agreement or contract.
Similarly, the state or government is prohibited from enacting laws that negate or impair the obligations contained in a private agreement or contract. However, when the terms of a private agreement or contract interfere with the rights of other people, it is important for the state or government to step in and ensure that public good prevails. For instance, in Charles River Bridge v.
Warren Bridge, the court found that the legislature was right in negating a previous contract with Charles River Bridge and entering a new agreement with Warren Bridge to construct a new bridge across the river because the old one had failed to support effective public use. This goes to show that private agreements or contracts must be respected because they are natural rights; however, when such rights interfere with other people’s liberties, they can be negated to facilitate public good (Arthur and Shaw 518).
Conclusion
From the foregoing, it appears that common law is an important part of the contemporary justice systems. As a result, common law should be based on sound principles that uphold human dignity, individual rights, and human progress. While utilitarian principles play a huge role in terms of guiding human beings to build progressive societies, they can never provide enough grounds to solve the world’s major problems such as murder, fraud, impunity, and terrorism.
On the other hand, libertarian principles provide sufficient legal as well as moral grounds that enable judges and other members of the justice systems to solve complex legal issues.
Specifically, the doctrine of libertarianism proposes that all individuals should be given the chance to exercise their private rights and liberties with little or no government interference, if only they do not impair the rights and liberties of other people. Applying this principle to common law will not only produce more pleasure and happiness to individual citizens, but it will also ensure that the individuals will act in a way that produces the greatest good for the whole society.
Works Cited
Arthur, John, and William Shaw. Readings in the Philosophy of Law. 5th ed. New York: Prentice Hall, 2009. Print.
Gray, Anthony. “The Common Law and the Constitution as Protectors of Rights in Australia.” Common Law World Review 39 (2010): 119-156. Print.
Hwang, Shu-Perang. “The Supreme Court in a Common Law Tradition: The Democratic Legitimacy of Judicial Review in Light of American Legal Realism.” Common Law World Review 35.3 (2006): 216-245. Print.
Machan, Tibor. Libertarianism defended. Burlington: Ashgate Publishing Company, 2006. Print.