Guardian said:
However, I am having a problem understanding #9 ...and it's bugg'in me. Could someone please tell the ignorant nube what "Formal rights comprise a real science " means? Specifically, what are the "Formal Rights" you are referring to? Thax :)
Hi Guardian. This is a difficult subject area for me, and I'm looking into it myself at the moment. When I think I've figured it out to my satisfaction, I'll be happy to post what I think for your examination.
I think that statement ("Formal rights comprise a real science") and its context indicates the author was possibly suggesting how "a real science" can include, contain or be composed of "Formal rights" and thus fit consistently into Gödel's overall presentation, but it maybe wasn't intended to suggest what the 'formal rights' actually consist of.
For that, we should probably look to the expressions of those rights as outlined in the rest of the Statement of Principles.
I think RyanX and AI had some good points, although I confess I'm intrigued by "objective 'science' to human rights that may be put down in legal form if that science is understood." It seems to me an equivalency already exists in a legal context in the form of the common law1, except that, in my view, the common law doesn't support the concept of "human rights", but rather the rights of "individuals" as they exist in nature and before the 'authority of the state'.
But this is just my view at the moment. :)
---------------------------------------------------
1
The rights of the individual (freeman according to Black's Dictionary), precede the organization of the state. The common-law rights of the individual are senior to any contrary statutes or regulations.
Hale v. Henkel, 201 U.S. 43 at 47 (1905)1
"There is a clear distinction in this particular case between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the State. The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no such duty to the State, since he receives nothing therefrom, beyond the protection of his life and property.
His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights." Hale v. Henkel, 201 U.S. 43 at 47 (1905).
Definitions
Common Law (Black's Law Dictionary):
"As distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs."
Put simply, common law is law derived from two sources: (1) Usages and customs, and (2) from the affirmations of the judgments of the courts. Sometimes in our work, we are primarily concerned with the latter part of this definition, namely, the affirmations of the judgments of the courts. This statement does not mean that the U.S. Supreme Court must have ruled on a particular matter. Given that the U.S. Supreme Court is the highest court of the land, and its decisions overrule all lower court decisions, if there are no U.S. Supreme Court rulings on the particular matter, then common law simply means the affirmations of all the lower court rulings. That is what is meant when we refer to case law.
--------------------------------------------------------------
UNDERSTANDING COMMON LAW
A Brief History of Common Law
Until the 12th century, law in the western world consisted of written laws, called Civil Laws, all traceable to Roman Law. This basic system still prevails in many countries as well as in the state of Louisiana.
However, after the Norman conquest of Britain in 1066, a legal tradition called the "common law," different from that of civil law, began to develop in England. In the 1100s during the reign of the legal reformer, Henry II, court decisions were written down and catalogued according to the types of cases. When the courts were called on to decide similar issues later, they reviewed the earlier decisions and if one was found that covered the earlier decision, they applied the principle of the earlier decision. They called this doctrine, "stare decisis," a Latin term meaning "to stand by the decision."
Under this rule of stare decisis, once a legal issue has been resolved as it applied to a particular set of facts, a court did not reconsider that legal issue in a later case where the factual circumstances were substantially similar. But this did not mean that every decision stood forever. However, the principle of stare decisis was a strong one, and judges were reluctant to discard well-established rules, and took great pains to explain a significant departure from a precedent.
During America's colonial period, most of the English common law tradition did not change, and the new country continued to follow English common law. When the U.S. Constitution was ratified in 1789, the Constitution, based upon the common law inherited from England, became the new foundation on which the American legal system was built.
If you're interested in learning more about the history of common law, I recommend Origins of The Common Law by Arthur R. Hogue (LibertyPress, 7440 N. Shadeland, Indianapolis, IN 46250; 1985).
The Two Basic Common Laws
According to Richard J. Maybury (Whatever Happened to Justice? - Bluestocking Press, PO Box 1014, Placerville, CA 95667; 1993 - highly recommended), there are two fundamental common laws:
1. Do all you have agreed to do;
2. Do not encroach on other persons or their property.
"Do all you have agreed to do" is the basis for contract law. "Do not encroach... " is the basis for criminal law and tort law. A "tort" is harm done to someone.
Black's Law Dictionary defines encroach as: "To enter by gradual steps or stealth into the possessions or rights of another; to trespass or intrude. To gain or intrude unlawfully upon the lands, property, or authority of another."
We know that Hale v. Henkel was decided in 1905 in the U. S. Supreme Court. Since it was the U. S. Supreme Court, the case is binding on all courts of the land, until another U.S. Supreme Court case says it isn't. Has another U.S. Supreme Court case overturned Hale v. Henkel? The answer is "No." As a matter of fact, since 1905, Hale v. Henkel has been cited by all of the federal and state appellate court systems a total of 1,600 times! In nearly every instance when a case is cited, it has an impact on the precedential authority of the cited case.
Caveat
The information in this post is based on sources believed to be reliable. It is provided with the understanding that I am not engaged in rendering legal, accounting, or tax guidance service. If legal advice or other expert guidance is required, the services of a competent professional should be sought. This post provides information only. The author assumes no responsibility for the consequences of anyone acting in accordance with this information.
