The Erosion of Common Law

Going Backwards

In his magisterial volume, The English and their History [New York: Alfred A. Knopf, 2014] Robert Tombs describes the emergence of what came to be known as the English Law.  One presumes that when it was first instituted there was little expectation that it would evolve into such a significant institution, but such was the case.  It was a feature which separated England from the Continent.  Common Law was decidedly different from law on the Continent.

Henry II ascended to the throne of England in 1154 at the age of 21.  Tombs describes how the Common Law began.

Henry II's drive for law and order saw the introduction in the 1160's of travelling royal judges, who were increasingly professional lawyers, on "eyres" (journeys) to hear cases involving the Crown, and in the 1170's permanent royal courts began to sit at Westminster, developing standardized "writs" (court orders in the King's name) to initiate a range of procedures before royal judges.  Writs were the basis of the system, and could be purchased for a modest sum by any plaintiff to summon an adversary before a royal court.

Thus originated in practice as well as in theory the universal primacy of royal justice: the "Common Law."  It was gradually extended to cover every place and every free layman within the kingdom, irrespective of ethnicity.   [Ibid., p. 68.  Emphasis, ours.]

This was a radical, positive development.  It meant that access to the courts and to the rule of law was made accessible to the common man (hence Common Law).  Justice was not just for the rich, or the connected, or the political and ecclesiastical elites.  This is a great benefit which we, these days, take for granted--yet it is vital, if society is to be just.
 A critical feature was the inexpensiveness of the process and the access to courts of substance and quality--that is, the right to appear before and be heard by a royal judge.  Sadly, these days, much of this has weakened terribly, and once again, access to justice belongs to those who can afford to pay lawyers and court costs.  Our society is devolving into a system of justice which only the comparatively rich can access.  Ordinary people take the loss, keep their heads down, shrug their shoulders and press on as best they can.

A classic illustration of this degeneration away from the fundamentally just principles of access to justice enshrined in Common Law is employment law.  In New Zealand, it is virtually impossible to dismiss an employee for any reason, without facing expensive quasi-legal procedures.  We have succeeded in developing a whole class of ambulance chasing lawyers who ride the system for all its worth.  They are virtually assured of their fee being paid because almost inevitably the system awards restitution to the dismissed employee and the payment of their legal fees by the employer as its standard, reflexive response--irrespective of the law.

These leeches are like the ambulance chasers in the United States who hang around hospitals trying to talk people into suing for hurt and damages, thereby generating work and revenue for themselves.  When complaints are laid by the dismissed workers, the employer--in most cases small, struggling, hand-to-mouth businesses--ends up before the Employment Relations Authority and one of its "Members", who duly adjudicate.  Most of the Members--many are reported to be former union activists-- are not legally trained and are so biased in favour of the former employee it is hard to credit.

We have seen a case where an employee voluntarily resigned after threatening to kill a fellow employee, and subsequently was proved to have committed perjury before the Employment Authority, and yet still was awarded a substantial sum in compensation because the employer failed to do "enough" to retain this employee.  One cannot imagine what damages that same employer would face if the employee had been retained and had carried out her murderous threats.  

Plaintiffs have a right of appeal from the Employment Relations Authority to the Employment Court--which is a different kettle of fish.  It seeks to apply the actual law and exercise justice.  But the costs mount exponentially.  Therefore, most employers Dane-geld--that is, they pay up compensation demands without question before they are filched by court costs.

Why has this happened?  Because it is too expensive to go straight to the Employment Court.  To overcome this problem, the government had set up a cheaper "prelim" to the Employment Court to compensate--which now trades in gross injustices presided over by antediluvian, Marxist-influenced class warriors.  For these charlatans justice is always to side with the proletariat.  

The New Zealand government does not want to fund courts properly and adequately so that every citizen can inexpensively gain access to just courts administering the law on the basis of evidence.  Henry II, it turns out, was much more sophisticated and just than our modern politicians, most of whom would have no idea why the Common Law was called common, and could not care less.

We are seeing more and more of this kind of degraded unjust jurisprudence.  In other words, as Western societies devolve from their Christian foundations, the bulwarks of justice (such as the Common Law) are eroding, and we are returning to more primitive, unjust times.