The “Common Law” As Defined by the “Department of Justice”

This is old news to some. But, I had some thoughts on this as I ran across it looking for a contact in the Department of Justice while I was in the process of writing a brief in the United States Supreme Court.

Apparently, the Department of Justice (at least in the Principality of Delaware) has a rather unique definition of the “common law”.  I believe there are other DOJ websites that use this phrase.

The Common Law is the Will of Mankind Issuing from the Life of the People

Follow the link to see for yourself:

Apparently, this “quote” came from a philosopher in the early 1900’s.  And, the DOJ has apparently adopted it as their own view.

Based on my understanding of the Constitutional Republic in which we live, and the principles of federalism, constitutional law, the rule of law, and state sovereignty, the “will of mankind” is the precise force of tyranny against which our forefathers so valiantly fought for our independence.  If the “will of mankind” issuing from the “life of the people” is defined as the “common law”, and we the People are bound by the common law, then does not it follow we are at the mercy of this “will of mankind”?

Does this mean that the “will of mankind” expressed in the streets, more loudly by one group than another, or with more vitriol and fear-instilling fervor, is the “common law” because it “issue[s] from the life of the people”?

Is the “will of mankind” sufficient to overcome hundreds of years of case law that established the structures of the “rule of law” as being ensconced within and protected by the Constitution in the Bill of Rights?

Whose “will” is the “will of mankind”?

Is it the “will” of the southern slaveholders that once attempted to control the will of others?

Is it the “will” of the northern industry barons grounding men to meat as they engaged in their enterprises at the turn of the 2oth Century?

Is the “will of mankind” the masses in the street shouting “What do we want?  Dead Cops.” after every unfortunate, but justified, “use of force” incident is cleared by a “grand jury” (the latter of which, by the way some would say is the Fourth Branch of Government)?

And, what is this “life of the people” from which such “will of mankind” issues?

How is this defined?

What measure of surety do we have to indicate that the “common law”, which we are all held responsible to know and follow, has changed, or been modified, if not by the highest courts of the respective states, or the United States, the only true arbiters of what the law is, and what the law should be until the Legislature amends, modifies or repeals the “common law”?

And, finally, does the “will of mankind” supersede the properly enacted laws of the legislature, and the rules enunciated by the courts, all of which do in fact issue from the Life of the People by virtue of the People’s vesting in the Congress, and the respective legislatures and courts the “constitutional imperative”; the right, and the sole right to make the law, and to say what the law is, respectively.

Our servants, the various government institutions, should be careful that their “mottos” are not taken for their views, and that the perception will not be that they implement their policies based on these ill-conceived cliches.

Happy New Year!



About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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