The Magic of the Common Law

Three things strike me as being embedded into the common law.

The first is its commitment to the past. The common law answers every question with an answer based on what it has done before. The magic of precedent is that it looks out to the past to provide a starting point to answer a present question.

The second is its aversion to replicating the past mechanically. Even when given the answer as to what has happened in the past, the common law does not regard that answer as set in stone. It asks instead whether and what principles – what general rule – can be extrapolated from the past rather than any particular answer. The common law, even when it looks at a particular example, treats all such examples as something to be abstracted into a common general rule that is synthesized from all the prior cases.

The third is its caution at applying the past to the present even when the general rule seems apt to the case before it. The common law is always alive to the possibility that an old rule is no longer a good rule. It tests such questions by reference to modern circumstances, societal norms, cultural values and local circumstances. Every general principle can be modified and every such modification finds itself into the next application of the general principle.

In contrast, the poverty of statutory law is that it fails all three tests. It is neither based on past experience (unless there is that rare thing the codifying statute) nor does it identify the key principles that ought to apply by reference to a variety of circumstances and ultimately a statutory rule cannot be changed by contemporary experience. It has to rely on politics and that fickle beast the legislative process to turn an old rule into a good rule.

To all these three deficiencies of statutory law, the common law applies its limited remedial touch through the principles of statutory interpretation. The magic of the common law is that it corrects some of the principal flaws of the system that is superior to it though its own virtues.

This Jessup Coach’s Credo

There is a lot of sentiment like Dan Joyner’s on Opinio Juris around at the moment. The inevitable effect of a flurry of regional rounds.

Like many coaches, I find myself in a position this year that is just all to familiar: coach of a beaten Jessup team that out-competed its opponents on the law, only to be out-played by a tepid bench that bought into “used car salesman’ advocacy.

Watching a good team lose, enabled by an unqualified bench that was unable to ask a single pointed question but bedazzled by ‘empty shirt’ advocacy is a teeth-grinding experience.

Watching a team fluently recite a pre-prepared error-ridden speech without an iota of deviation for 20+ minutes is alien to everything Jessup should be. An odious violation of everything Jessup has given to me, and everything I’ve tried to give back.

So I have a choice. I can teach my team to do it right or I can teach them how to win the regional. 

I choose to teach them to do it right. I owe them that.

• I believe that the most important thing about Jessup is my team’s growth, learning and development and not whether some obviously unqualified judges think they were better then the opponent.
• I believe that teaching my team to find, to ignite and stoke, their  passion for international law is more important than teaching them to cater for the opinions of the uneducated and unwilling press-ganged to act as judges.
• I believe that teaching my team to develop an abiding love of the challenge of Jessup – the exhilarating willingness to take on the challenge of an intellectual mountain – is more important than teaching them to cater for those who mistake the mountain for a country-park stroll.
• I believe that teaching my team to understand the law correctly is  important and that teaching them how to con these obviously unqualified judges into believing nonsense is not.
• I believe that teaching my team to learn, and respect, the details and finer points of the law is important and that teaching them to over-simplify, obscure or mislead is not.
• I believe that teaching my team to work constantly at challenging each other, reviewing their arguments, and researching further is the best preparation for the real practice of law and that dictating what they will say, and requiring them to rehearse it to perfection, makes only better robots.
• I believe that teaching my team to work strongly together, to teach and support each other, is the best preparation for real life and that teaching them to ‘do what it takes to win’ is despicable.
• I believe that teaching my team to win, or lose, with grace and poise, with a friendly hand shake and a sincere compliment for the other side, is more important than to cultivate an unfriendly aloof competitiveness that pervades the competition with a  ‘win at all costs’ ruthlessness.
• I believe that teaching my team to work within the rules, to accept its constraints and the demands it places, with honest acceptance and sincere endeavour is better than recruiting an ever increasing number of student ‘team advisors’ every year.

 

What I don’t believe – and this I want to make abundantly clear – is that it’s the job of ILSA to help me realise these beliefs. That’s not what they do, and that’s not what they’re for. They couldn’t help me achieve one jot of this, even if they tried.

So I’ll finish this Jessup year the same way that I finish every Jessup year. The way I choose to finish it,  informed by how I chose to start it: Fiercely, joyfully, proud of my team. For their hard work, their commitment to learning, their commitment to fair play, their camaraderie and new found friendships, their mastery of public international law, their grace and poise in defeat and their characteristic strength in already deciding that they’ll do Jessup again next year.

If I hoped to teach them anything, I wanted to teach them to do Jessup the right way. They did Jessup the right way. And that’s how they’ll do it again.

Jessup 2012: Compromis Out

The Jessup 2012 Compromis has been released!

The new compromis raises the customary four issues. Declaration one concerns the ability of the ICJ to hear a dispute submitted to it by a government that has taken power only recently through a coup d’etat. This is a nice, technical, way of raising issues of international capacity and the recognition of governments (as opposed to the recognitions of states). Highly pertinent in light of the Arab Spring and especially with recent events in Libya.

Declaration two revives a common theme. It concerns the legality of, and international responsibility for, the use of force by an international organisation between the international organisation and its member states. This is a staple issue for the Jessup, and one that both judges and competitors seem to enjoy every year. Important recent developments this year in the law of attribution make it a good time to revisit the topic.

Declaration 3 is a strange one. It concerns a mix of the prohibition against forced labour, whether such abuses can be waived by treaty, whether they are subject to adjudication in a foreign states domestic forum and whether the resulting (monetary) judgment can be enforced despite the doctrine of sovereign immunity. This is the newest part of the problem. It raises interesting issues of human rights and the interaction between domestic jurisdiction and international law. This may well  be the most challenging issue  for teams to research and at first glance seems well of the beaten track. This promises to raise interesting issues.

Declaration 4 concerns the protection of heritage sites. The most interesting characteristic of this issue is the highly ironic scenario. On the facts, it is the government which considers the site to be sacred which destroys part of the site. It’s (eventually successful) goal is to bring an end to the use of force against it (the use of force which is the subject of Declaration two). This is also a novel issue, although one that has been gaining in visibility for the last few years, due to the importance and complexity of the protection of world heritage sites and the (relatively) developed international protective framework.

This years Compromis is written in a very different style. Ordinarily Jessup compromises (what is the plural of ‘compromis’?) tend to be written in a fiction style with a linear story that is centred usually on the history of the dispute or a particular individual. This time much more descriptive prose is used to narrate the problem. Not that this has made anything any shorter – the Compromis still racks up an impressive 48 paragraphs which is longer than last year, but considerably shorter than the 70+ paragraph Case Concerning the Windscale Islands.

Good luck to all who compete this year.

R v Tedjame-Mortty [2011] EWCA Crim B1

Comments made by a judge which were rude (“Shut your mouth and listen”), harsh (“How dare you speak to a member of the public”), and sarcastic (“You are really sorry? Yes, you will be really sorry”) made to the defendant just before he gave evidence rendered the conviction unsafe.

Warren & Ors v. HM’s Attorney General for the Bailiwick of Jersey [2011] UKPC 10

This case considered the circumstances in which it was appropriate for a court to stay proceedings on the ground that an abuse of process offends the court’s sense of justice and propriety. The Privy Council refused to stay the proceedings. They took the opportunity to restate the proper principles on staying proceedings for abuse of process where the abuse does not prevent the defendants from having a fair trial. Along the way, they held that a key authority which has been relied on in Hong Kong was wrongly decided.

Jones v Kaney [2011] UKSC 13

If you’re instructing an expert witness you should tell them about Jones v Kaney. In Jones the UK Supreme Court reversed a first instance decision striking out a negligence claim against the defendant expert. The claimant alleged that the expert negligently prepared a joint experts’ statement for a personal injury action brought by the claimant. The Supreme Court held that the immunity from suit for breach of duty enjoyed by expert witnesses in legal proceedings should be abolished.

Jessup 2012: Preview

ILSA gives us a glimpse of Jessup 2012:

The 2012 Jessup Problem involves a dispute between two states over the destruction of a cultural site of great importance and the important question of who gets to represent a state internationally in the immediate aftermath of a coup d’etat. It also involves international responsibility for the use of force by one state while taking part in a regional operation to bring about democracy.

R v Vasili 2011 EWCA Crim 615

In which the English Court of Appeal showed that you should never miss the chance to make a James Bond reference. The question they were faced with was whether a flick knife with a built in lighter was an offensive weapon per se. It was argued that a dual use item could not be seen as an offensive weapon per se because it depended on how it was seen in light of both its purposes. They held:

10…An object which has all the characteristics of a flick-knife does not cease to be a flick-knife because it also has the secondary characteristic of being a lighter. The same no doubt would also apply to a handgun which was also a lighter although possession of a handgun might be dealt with under a different statute. James Bond might no doubt carry an object of this kind for a dual purpose but a flick-knife does not, in our judgment, lose its character as a flick-knife because it is also a lighter. It is just as much an offensive weapon and potentially dangerous as if the lighter function were not there. In our judgment the Recorder’s ruling was correct for the correct reasons and the appeal is dismissed.

Link

Preferential Selections

We live in world built on preferential selection. A preferential selection is the constantly refined number of endorsements that are accrued as a result of being born to the right people, going to the right schools, attending the right university and finding the right job. Together they create the base that allows others to risk trusting their responsibilities to our capabilities.

Each step is intended to exclude people. Most never made it to the right schools. Many were dismissed by the gatekeepers of higher education. Some survivors will fail to fit the modern corporate machine. Each additional hurdle removes people from the path of the anointed.

Jones v Jones: The English Court of Appeal Declines to Follow WLK v TMC

Wilson L.J. in Jones v Jones [2011] EWCA Civ 41:

‘The judge released his judgment for publication but on an anonymised basis, i.e. as J v. J. Its citation number is [2010] EWHC 2654. It has 484 paragraphs. An article on the judgment, by Mr Ashley Murray of counsel, has recently been published in [2010] Family Law, Vol 40, at 1111. Mr Murray introduced his article as follows:

“There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Charles J. One of his most recent is J v. J …”

Mr Murray’s introductory sentences were witty and brave. In respect at any rate of the judgment in the present case, they were also, I am sorry to say, apposite…’

The appeal was concerned with two questions (1) how the sharing principle in ancillary relief is to be applied when the husband’s assets are the proceeds of sale of a company he bought into the marriage and built up during the currency of the marriage and (2) did the need principle, where it suggested an award lower than generated by the sharing principle, inform or dictate the extent of the departure from equality within the sharing principle.

Along the way, the Court of Appeal found a way to cite, consider and disagree with the recent decision of the Court of Final Appeal in WLK v TMC, Unreported, 12 Nov. 2010, FACV 21/2009.