Thursday, May 19, 2005

Answering back on RMA and the Common Law

No Right Turn is answering here my question put to supporters of the RMA:

Not PC asks whether the proponents of the RMA will "be just as happy with the RMA when also closes down proposals for electricity generation by wind turbine?"
NRT answers 'yes' to this question, because he says,
Opposition to the RMA is generally founded on a denial of existing rights - or rather, as it tends to be linked to the idea of dealing with all problems via the courts, a denial of rights to those that cannot afford lawyers (rich NIMBYs, however, get to keep right on going). This is yet another example of the difference between their stunted version of freedom and that promoted by the left. Mechanisms to protect rights must be available to all, regardless of means. We do this to protect other rights - we provide police and public prosecutors to ensure that justice for crimes against persons is available to all, not just those able to afford it - and the same principle applies here.

Let me just say quickly that NRT has misunderstood the nature of my objections to the RMA. It is far from "a denial of rights to those that cannot afford lawyers." Very far from it.

I agree that inexpensive access to justice is a basic need -- 'justice not afforded is justice denied' you might say -- and the record of the common law is excellent on this score. Not so the RMA however; as litigants in RMA fixtures can attest RMA legal expenses are far from cheap, and getting that fixture can take some time, and the result full of uncertainty. I'll say more later on today on NRT's comments and those of his readers, but in the meantime let me point you to my answers to some recently voiced objections to the common law protection of rights here on NRT's blog, and here on my own, and here is some more detailed arguments with links here.

Rest assured that I will answer the objections raised at NRT's blog either later this afternoon or evening. Feel free to ask more questions (or answers) here as well.

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1 Comments:

Blogger Make Tea Not War said...

I take it you are going to continue to advocate a common law system. Perhaps you could address the common legal saying "Hard cases make bad law"- this refers to the problem of precedent which, I'd agree does make for clarity and predictability, when a problem arises which is exactly like that those which came before it- in which case you may as well just codify it in statute form- however precedent isn't nearly as helpful when courts are faced with new fact situations- inevitable in a constantly evolving world. Then you see the unedifying sight of judges engaging in sophistry and semantic contortions desperately trying to make a principles not adapted to a particular fact situation fit.

That is why you will from time to time see Judges specifically asking the legislature to make new law because precedent does not provide sufficient basis for a decision to be made.

Lord Denning, incidentally, is notorious for his cavalier approach to precedent when he didn't think it would serve his perception of fairness. So he would establish new precedents - "bad law" to fit that fact situation which other judges would then have to try to apply or which would then have to be overturned in higher courts- at considerable expense to the people who were just trying to get an outcome rather than wishing to contribute to the development of the law.

The common law is also only one system of law in the world and its not that highly thought of by legal theorists from other traditions. Not I'd hasten to add out of any sense of cultural jingoism but because its a silly system.

Have you read Bleak House? I think that gives quite a good fictional idea of the frustration and expense that entanglement with the common law legal system can mean.

I'm not an expert on the RMA, and it may well have all the problems you say it does. But I don't think the common law is the answer.

5/20/2005 10:01:00 am  

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