• Positive Law v. Natural Law [Introduction to Common Law]
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    Positive Law v. Natural Law [Introduction to Common Law]

    One of the things that one deals with in positive law is the question of whether or not it’s a force for good or a force for evil. When the positive law is engaged in setting out formalities to allow voluntary transactions to take place, it works for the good. Uh, but the old maxim which says that, “Whatever is pleasing unto the prince has the force of law” carries with it the real danger that tyrannical rulers will essentially announce that natural law principles need not be followed, and that the state can impose upon individuals whatever rules that it wants. So, to take the most ancient example slavery…

  • Can Laws Be Simple? [Introduction to Common Law] [No. 86]
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    Can Laws Be Simple? [Introduction to Common Law] [No. 86]

    One of the things that one worries about in putting the common law together is whether or not you can reduce it to a series of relatively simple rules. And the answer, generally speaking, is yes. With respect to property, the basic rule is that prior in time is higher in right, so that those people who take possession first essentially are allowed to keep it against all subsequent takers. This means, in effect, that once the property rights are established, no individual is entitled to disrupt them. The second principle on voluntary contract and exchange says, in effect, that if you make an agreement with somebody else for the…

  • Does Natural Law Matter? [Introduction to Common Law] [No. 86]
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    Does Natural Law Matter? [Introduction to Common Law] [No. 86]

    One of the common views today is that all the principles of natural law are largely irrelevant to legal discourse. Uh, this is a radical shift from the views of law that were taken for thousands of years, and which natural law was thought to be the foundation. What one means by natural law is that there is certain kinds of features of the world which are so common, and so powerful, that any legal system that tries to put things together in ignorance of those things will always fail. Natural law has been defined from the beginning of time as involving the following three principles. One is this a…

  • Public v. Private Property [Introduction to Common Law] [No. 86]
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    Public v. Private Property [Introduction to Common Law] [No. 86]

    When we started to talk about the arrangements of property, what is very common for all people is that you have some forms of property that are private, that is owned by one or a very small number of individuals. And then you have other forms of property that are held in common, such as that it’s owned by nobody with open access to all. In law school, we tend to study the common elements less and the private elements more because the private elements are where you have the voluntary contract for leases and for hires, and for mortgages and so forth. But to understand the full system, you…

  • A Common Lawyer Looks at Supreme Court Constitutional Law | Richard Epstein
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    A Common Lawyer Looks at Supreme Court Constitutional Law | Richard Epstein

    First of all, I want to thank the Center for inviting me back again. I spoke at a very effective conference in the 2013 to 2014; and I was stunned by the level of turnout and interest the student body had here. And I was asked to give a speech at BYU, and so I called them up and said, “Could we have some kind of repeat?” And I’m very happy to say that we did. I also want to say that one of the ways in which you become an original and creative mind and constitutional law is not to teach the subject. I have taught constitutional war as…