It was really smart for its time...

...in the 12th and 13th centuries.

Common law was important, because prior to it every little lord Fauntleroy and baron was making up their own rules as they went along and it was impossible to get any kind of cohesion between the feudal lords of England.

Seriously, it's kinda hard to wrap our brains around it but most social structures are ridiculously outdated. I knew that the U.S. Constitution was the oldest "constitutional document" but did you know that it's also among the least amended constitutional documents? We haven't changed the bases of our codes of laws in way too long; the internet alone has drastically changed the world and most legal systems aren't designed for an Internet world, they've merely been adapted to work in an Internet world.

I have no concrete suggestions, but we have to do away with the idea that the law is an impartial arbiter that removes bias, subjective judgements, despotism, or introduces "fairness" into society.

Law will probably always suck, which is why it's better to fix systemic problems than deal with their symptoms.

It would have to be some kind of worker's council based system. Kind of a glorified jury. Loosely following written laws but making their own judgments, subject to the appeal of larger representative bodies or direct citizen intervention if it really seems like they fucked things up.

I also think that riots and violent protest will still have a place in socialist society. Expressing dissatisfaction with the system through conflict shouldn't be inherently seen as serving reaction just because we won. We'll still fuck things up and need course correction, which no system can fully account for.

I've been thinking a lot about this as well, especially if you think about the law as the rational language of the administration of the state. In the context of the Maoist idea that class struggle continues under the dictatorship of the proletariat, and that the state still serves this function of mediating class conflict, a legal revolution is necessary in the same sense as a cultural revolution in order for the proletariat to wield the state in an effective, rational manner.

Imma be frank, common law is amazing.

It is dialectic, improves on itself over time, and is far superior to civil law. The issue primarily is how precedent is dealt with. Modern courts are bound to interpret fact patterns and legal issues only within the context of the specific cases they get. As such, if the incorrect arguments are made or the facts don't lend themselves to being new precedent, then precedent won't be changed. This is why some legal firms literally try and seek out specific cases with specific fact patterns to challenge legal precedent by taking the case to the Supreme Court (though this is super expensive and many clients don't want to go through the process). While this isn't horrible, it is dreadfully slow. Just as well, most cases which could make new precedent are settled out of court (within the civil context) and are pleaded out (within the criminal context). Only about 10% of cases in either civil or criminal law actually go to trial and are litigated before a judge. So the normal avenue for changing precedent within the judicial branch is pretty slow just based off of case volume and cases actually heard.

Precedent is an interesting topic though. At the district court level (where most cases are heard), an attorney can justifiably use precedent from the state appellate courts, the state supreme courts, and the federal appellate circuits they reside in, even if it contradicts with other appellate level precedent (these contradictions are called "circuit splits"). Supreme Court of the United States (SCOTUS) precedent is always controlling so when SCOTUS comes down on an issue, that is effectively an end to the squabbling between the various appellate circuits. As such, it can take awhile for a case with a precedent challenging issue to make its way through the various appellate circuits, create a circuit split, and provide an avenue for SCOTUS to hear the case. Just as well, SCOTUS only hears a handful of cases every year and they get to choose which cases they hear, so effectively whatever precedent SCOTUS wants to focus on will be the only thing heard.

That being said, precedent and the common law generally are terrific ideas because it allows for the law and the judicial branch to be organic and adapt to changing times. Whereas the civil law is codified before hand and doesn't allow for courts to stray from the black-and-white legal reasoning of the legislature. Further, common law is not only modified by precedent. The legislatures, both state and federal, are primarily responsible with codifying laws and some standards the courts use to interpret facts, laws, remedies, and sentencing. Just as well, legal scholarship is huge (though costly and time-absorbing) in changing the law. Law reviews, legal restatements, critical legal theory, and general legal scholarship are some of the main drives behind changing precedent at the judicial and legislative level. SCOTUS and appellate circuit courts routinely cite to legal scholarship in developing their views on topics of frequent review or precedent changing issues. Again, this allows common law to be organic.

Okay so this is a lot. Effectively, common law is far more organic than its other cousins. Common law allows for courts to be more than just blindly applying the law to the facts and nothing more, it allows for them to interpret law and apply it to the facts. This interpretation allows for the law to change and shift to create more justiciable and equitable outcomes. Common law is a great concept and so is precedent, however, in the hands of the bourgeoisie that created it, it is their class weapon and not a people's legal structure. Law, as is in civil law regimes, should not be a rigid structure to be blindly followed based on the squabbling of the legislature where the judicial branch cannot interpret or critique the legal framework they are given, instead the law should be an organic device where the people who apply the law have some say in how, why, when, and where the law should be applied. As such, the common law is far superior to civil law. Just as well, the common law offers the best area for the development of a truly socialist legal structure.

A socialist legal structure would likely have precedent, multiple levels of courts, judicial branch review of case law, statutes, and litigation in court. Even more, these things would be allowed to organically develop into tools to shape society at large into something better. Where the current common law regime seeks legitimacy from the Constitution, a socialist one may seek legitimacy from the Dictatorship of the Proletariat and arbitrating class dynamics. Where the current common law regime is enslaved to settlements out of court and pleadings, a socialist one may seek to litigate far more cases (just as well the American legal system is woefully underfunded which is why many courts are literally falling apart). Where the current common law regime requires finding vehicles to change precedent, a socialist one may develop a strategy in which to directly challenge problematic precedent without a vehicle. These are mere speculations, but the common law regime, generally, is the best building block for which to build a new socialist legal system.

One of the central things I think needs to go is the fetishization of "justice is blind" - weighing both sides of a dispute equally fundamentally ignores the hierarchies inherently present in society, and of of course misses how capital is the ultimate arbiter to any legal proceeding.

Change 1 would be no private lawyers, since it's paying for an undue advantage in what should be a fair legal dispute.

Change 2 is that the legal system should be biased, but biased against those with more power. A tenant should be given more leeway over their landlord, an employee over their employer, a citizen over a cop, a g*mer over everyone else. We can't have equality so long as we are reinforcing existing modes of oppression in every institution.

It's an interesting question, but I'll have to start from the theory before I get into the practical realities of the U.S. system of Common Law.

There's a variety of philosophies regarding what the 'law' ought to be. I'll be brief and say that there are two that are taken the most seriously: Positivism & 'Natural Law' -- both have a variety of subgenres, but they both provide two of the instincts as to what the law ought to be. 'Positivism' follows the idea that the law needs to be -- first and foremost -- entirely predictable & clear to the people who are in it's jurisdiction. To this end, you want to either have extensive, but plainly written legal codes which account for a variety of situations and clearly establish liability in various cases. It would also, necessarily, strongly prefer rules established by 'precedent' -- so that when new legal area is charted because the current rules weren't clear enough, everyone can cite this new ruling as a reliable source of information about how the law will be going forward. Positivism makes few claims to ethical or moral superiority -- laws are explicitly not moral guidelines, ever -- under Positivism, and ethically there's usally just the overarching impression that it's important for any society to have maximally clear & reliable laws so that people can know what obligations & duties they have to each other. If that clarity reveals facts that the citizens dislike, Positivism's parting gift is that the rules for changing the law ought to be clear as well.

'Natural Law' on the other hand, is a much more explicitly moral system, and it's certainly reserved for moral realists (as opposed to moral anti-realists, people who think that 'moral facts' don't exist). It's a whole big thing in ethical philosophy, but I'll confined my comments to philosophy of Law. Natural Law theorists believe that the point of the Law is to conform as closely to rules of morality as possible, whether those rules were laid down by God, Reason, or whatever their moral philosophy says concretizes abstract moral facts into the material fiber of our reality. To that end, if a Law is demonstrably unjust, then it has no place in the system and ought to be discarded as rapidly as possible. When laws are drafted and put into practice, it's always with the goal of shaping society/the Law into a form that conforms to morality. One idea that gets thrown around a lot is that "Law is the Perfection of Morality" -- with that lovely 17th century capitalization -- and that as our understanding of moral reality grows, so to does our approach to the law have to grow and change. This makes notions of 'precedent' a bit hazier, because relying on the law at a time when it was morally wrong would obviously not be valid. there are plenty of in-built protections for, say, not holding people liable for doigns things that they didn't know were crimes when the law changed, but the thrust of this theory is that the Law should never tolerate immorality & grows with our understanding of what ought to be. So, Judges, or whoever is responsible for clearing legal matters, would have an obligation to the 'the right thing' rather than be bound by precedent or procedure. Of course, as always, it's all a balancing test , because to some extent people do like clarity and procedure. It's not like this theory imagines we'll be having a bunch of Judge Dredds running around and forcing ships to adopt radio technology in the thirties.

But now we can wrap around to your original point -- why Common Law? The answer is because it lends itself to predictability and clarity. Common Law, broadly, refers to codifying legal matters as they were practiced by the people, as well as respecting legal precedent. So when a bunch of English peasants thought that both sides needed to trade valuables for a contract to be valid, the idea of 'consideration' was born and blah blah 700 years later we now have the Uniform Business Code that very clearly lays out exactly what you need to do a bunch of business stuff -- some of which derives from these old legal concepts. For all that it sucks to be beholden to old ideas -- the advantage is that you know exactly what magic words you need to utter or write down to make the courts do what you want them to do. You can look up what prior courts have done and force courts to agree with you based on precedent! So you can think of the Common Law system of favoring positivism over natural law -- although, obviously, a system this large is going to have hybrid urges. Furthermore, at least in the U.S., there's plenty of legal codes and legislation that are wholly new and totally override 'old' legal concepts. It also depends a great deal on the field you're in. Laws surrounding real property are by far the most 'feudal' and cling to a lot of old concepts -- but something like insurance law or even the Criminal Code? That's all a creature of modern legislation, although 'modern' stretches back to the 1940s sometimes.

I'm not sure if your problem is primarily with relying on 'precedent' generally, or if you think that over-reliance has allowed concepts that are unfit for a modern society to creep in from older times. I think that's an important distinction to make, because precedent on a whole is profoundly important to a functioning legal system. The king changing his mind day by day and giving different rulings to the same problems? Not that's some feudal stuff. Having a Worker's Council that will tackle problems differently depending on the mood of the participants that day might be objectionable to the people who are bound in their jurisdiction.

That's really all Common Law is -- precedent. While some concepts from Ye Olde Englishe Lawe have been retained, most of the particularly objectionable ones have been filtered out by almost a thousand years of people arguing with each other. If you have some particular disagreement with a stupid remnant of tradition that has lodged itself in the legal system, then I might be able to explain it in a way that makes it seem less stupid.

Source: am a lawyer, and I want to kill myself every day (but that's because of the shitty people I work with, and not because the law is fundamentally flawed)

edit: Check mrhellblazer's post about the good that can be done with common law and precedent for a more detailed defense of the concept

Without defending our legal system, keep in mind that:

1. Any way of governing, say, a city of 100K people (to say nothing of a nation with 300+ million people) is going to be complex.
2. A lot of the problems in our legal system started out as solutions to older problems.
3. All of the individual parts of our legal system -- elections, legislatures, lobbyists, executives, the judiciary, lawyers, paralegals, cops, etc. -- all have (and likely need) at least some rules that are uniquely adapted to their specific roles.

In short, the root problem (how should we govern ourselves?) is extraordinarily complicated and even a vastly-improved legal system will be similarly complicated, which will make it functionally opaque in many places and to many people. Improvements can be made, sure, but your "I can't even begin to imagine an alternative" intuition is reasonable.

That said, if I had to invent a legal system for a socialist utopia from scratch, here are a few important features I would include:

1. Guaranteeing everyone the means of decent living (housing, healthcare, education, a jobs guarantee or something like UBI, etc.). Eliminating financial precariousness would go a long ways towards reducing crime and cutting down on the civil caseload, too. A thought I often have is how many car accident cases would be litigated if medical bills were a thing of the past.
2. In addition to better education overall, more education on the legal system specifically. Some of the problems in our legal system are genuine problems, but some are widely seen as problems only because people aren't very informed about the situation.
3. A far greater emphasis on access and timeliness. Right now legal advice is effectively inaccessible to many people, and even if you have a lawyer cases can drag on for years. There are reasons for all of this, but not reasons so compelling that a society that really gave a shit couldn't solve them.

These are where I'd start at a high level; I personally think the common law/civil law distinction isn't that great, especially in the U.S.

Some great discussion in this thread: please consider checking out my proposed Channel C/law

I think its important to note that when it comes to the bourgeois legal systems we will certainly keep elements of it just as we maintain elements of the feudal legal system now. This is how dialectics work.

That being said, the vast majority of bourgeois law concerns property relations which will be streamlined significantly under a socialist system. Laws criminalizing the pettiest of crimes will likely be erased or revised to far less harmful sentences. Redundancies or senseless laws shall be erased and forgotten. I would also like to think the concept of federalism shall be done away with.

Trials shall proceed similarly to the bourgeois system, though they should be simplified and made more fair. Corruption will likely remain a problem but we will fight it vigorously unlike now where it is acknowledged and even accepted.

Sentencing will be less harsh for most if not all crimes. Reeducation and rehabilitation shall be common and long prison sentences shall be rare or abolished. They may be an unpopular opinions but I do think that at the beginning we might be quite brutal and perhaps even retain capital punishment, but I could be swayed against that idea. Our targets shall be the bourgeoisie and as such bourgeois crimes shall receive the greatest punishments.

Hopefully someone smarter than me reads this because I'm really curious now.

Common law itself is fine -- it's just a way of saying "we should all agree to judge people the same way" -- but there is no effort (read: no money) to try and simplify it. So it ends up being a clusterfuck, especially now that most case decisions are available online.

The short answer to your question is: Corporate Capital interests prefer a system in which they can move the law by influencing Judges -- mainly because all of the Judges are former partners at the law firms that represented said Corporate Capital.

But the fix, once you remove those influences, can be as simple as funding and/or legitimizing certain existing efforts to take the common law and simplify it into a usable "code" of rules.

A good example if you want to learn more is with the various Restatements. They take a close look at everything that's been decided and put together a more simplified and organized understanding of the state of the law. A lot of judges and lawyers will rely on these heavily, almost as if they were law. But they're not the law and it's an important distinction where the money really matters.

If you nationalized that industry and funded it, removed the corporate lobbying interests above, and passed legislation making the State Restatements actual law, it would go a long way towards having a better legal system and with relatively minor changes.

The courts are honestly the only liberal institution I generally support continuing within a socialist society.

Their job is essentially to just follow the text of the law and existing court rulings. So long as those other things are good, the courts will be good.

Now on the other hand, our broader AG/prosecutor system is totally fucked and they always will just hyper focus on targeting a specific part of the law alongside whatever their police bring into them.

Its important to remember that the legal system in the US is mostly just a tool of class/social oppression. Violent crime legislation is but a fraction of the whole, with the majority being property crimes, inherent to class hierarchic systems. In a proletarianized society, most crime, and the need for most law as we know it today, will wither away with the state. What will be left will likely be more in the realm of social work and rehabilitation, possibly through new labor postings or integration into a different community.

Obviously there will be the structural law of the overall socialist transitional state, and that to me will be the interesting part, as it will need to be founded in fluidity, as socialism is merely the transitional phase to a stateless (written-lawless, or perhaps thats utopian?) communism.

No, you're right