Searching for the term for an anecdotal &quot;simple person&quot; Maria Theresa and the Law Many years ago, I was attending a university course about legal aspects for computer scientists. It was a very basic course and in order to make the topic digestible more easily for us students, the lecturer was providing some anecdotes. As the course was provided by an Austrian university, some of the examples referred to the Habsburgans and the Austro-Hungarian Empire. The lecturer told us that before a law could pass, a member of the common people had to read the law text and explain it in his own words. Only if that was possible and purpose of the law could be reflected, a law could become active and valid. The idea behind this was to ensure that the population, which received only basic education back in the days of Maria Theresa, could understand the meaning and implications of the law. This person had a specific name, if I remember correctly, it was Hungarian for "simple person" or even "stupid person". Does anyone know the term for this person?
In the United States, we use the phrase "Reasonable Person" which is not to say an average person or a simple man, but an individual who understands the limitations of the situation and would act in accordance with that knowledge. For example, if a doctor improperly rendered help a patient, his actions would be evaluated based on reasonable knowledge of people with his medical knowledge, where as a person practicing medicine without a license would be subjected to a more common-man standard. The phrase person is therefor substituted for a reasonable individual and thus, a "Reasonable Landlord/Renter" could exist in housing cases, or a "Reasonable Doctor" in medical torts or "a Reasonable Woman" in sexual assault cases, so the "Reasonable Person" is often used to allow the jury to put themselves in the shoes of the witnesses and the accused and see how they would react (Historically, the term was called a "Reasonable Man" though "Reasonable Person" was used to make the term more neutral to what the definition of "Man" was (A human male or a member of the Human Species, regardless of gender).
My understanding is that is simply another term for a &quot;court of law&quot; or for a &quot;court of justice&quot;. All of those terms simply mean a court, a place where judgements under law are made. Which term is used is a matter of history and tradition, or perhaps of style. The term does not of itself imply any difference of rules or authority or procedure. Different courts do have different procedures to some extent, and if one court normally uses one term for itself, then that term may go with that court's procedure to some extent. Merriam-webster gives as sense 2: a court of justice Collins gives as sense 4: a court of law Cambridge gives: the legal system and the work it does The legal section of the Free Dictionary gives: A term used to describe the judicial branch of government; the judiciary; or those connected with the court system. ... Judicature refers to those officers who administer justice and keep the peace. It signifies a tribunal or court of justice. ... [sense 5] a court of justice or such courts collectively.
Any written communication is generally admissible Subject to all the normal rules for admissibility of course. For texts between you and a third party the major issue that springs to mind is relevance. As in, how are they relevant to the dispute between you and this man? If they are not, your lawyer should have objected to them on this basis, however, its too late now. I'm curious as to how he obtained these and whether it was done legally or not. Illegality will not affect their admissibility as the exclusionary rule doesn't apply to civil matters, however, it does speak to the gentleman's character.
Strictly speaking, that principle isn't even true everywhere in the US. The maxim "nulla poena sine lege" (i.e. "no punishment without a prior penal statute") was historically applicable to civil law systems, such as are found in continental Europe. In common-law systems, there was never a tradition in which a crime wasn't a crime unless it violated a penal law, because crimes themselves were traditionally defined by court precedent instead of by statute. In US federal court, the only allowable common-law offense is contempt of court. This is due to a court decision (United States v. Hudson), in which the Supreme Court ruled that federal courts do not have the constitutional authority to hear a case in which someone is accused of committing a common-law crime. Even so, and even though there is a federal contempt statute, the Supreme Court has ruled that contempt is an inherent power of any court, and statutes around it only regulate the power (but the power would be there even without a statute). At the state level, some states have explicitly passed laws saying something is not a crime if it doesn't violate the penal code (although this doesn't necessarily apply to contempt); see section 6 of the California Penal Code for an example. In other states, like Florida, common-law crimes still exist; Florida has a statute saying that any common-law offense is still a crime unless a statute has explicitly covered that same subject matter (section 775.01), and specifies a generic penalty for anything which is an offense at common law and not addressed by any Florida penal statute (section 775.02). While this is sort of statutory (as it's a statute giving the penal provision), it's also basically not (as no statute has to say "X is illegal," because it's enough that English common law makes X illegal).
Even before the police have any idea who did it, Bob is guilty of whatever wrong he did. However, if you want this to be a legal question and not a moral one, we should assume that you really want to know "Can Bob be convicted of murder, if the evidence proves that he did do it?". Yes, he can. See Morris v. State, 214 S.W.3d 159. The critical question was whether the defendant understood the charges (he did) and whether he could assist in his defense (he could). The desideratum of being able to assist in your own defense only goes so far. On the other hand, maybe no, per Wilson v. US. A government expert witness "testified that appellant had permanent retrograde amnesia and would not be able to aid in his own defense in terms of remembering any of the acts alleged in the indictment". The crucial difference seems to be whether one just has loss of memory, vs. loss of memory connected with some other mental disorder. [Addendum] Per Dusky v. United States 362 U.S. 402, competence to stand trial depends on whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. I am not aware of any exceptions e.g. whether this is not the case with strict liability crimes like statutory rape, and since it is generally held that "competency" is a requirement mandated by the due process clause, I don't think there could be an exception.
Legalese The purpose of a legal document is to set out the rights and responsibilities so that: they can understand them, a third party (e.g. a judge) can rule on them in the event of a dispute. These two requirements are often in tension. We have about 1,000 years of legal precedent where certain words and phrases (sometimes in Latin rather than English) have developed very clear and precise meanings. This serves very well for the 2nd point but it can be confusing to lay people especially where: the word as used in everyday speech has a broader meaning than the way it is used in the law (e.g. shall), the word is no longer used in everyday speech (e.g. thou), or the damn thing is in Latin (e.g. certiorari). For example: "Thou shall not kill" is a legal prohibition - killing by you must not happen. However, "Killing is illegal" is merely an observation. TL;DR There is no reason why an agreement cannot be expressed in plain English. However, when put in front of a judge, that plain English must be interpreted; maybe it is better to use words that have clear and unambiguous legal definitions? An anecdote, probably untrue In the spirit of never letting the truth get in the way of a good story. The legal fraternity's love of opaque language supposedly dates from the 1600s. In those days a lawyer was paid by the folio - a large piece of paper. As a consequence lawyers used very big handwriting. Parliament, justifiably, thought that this was a rort and legislated that lawyers must be paid by the word. So now we have "in the event that" instead of "if" because 400 years ago it was worth four times as much. Parliaments do this kind of thing a lot.
Laws update, collectively, very frequently. Laws are embodied in statutes, regulations, and court rulings, statutes being the most stable of the three. In terms of what an individual lawyer would do, the most important is to focus on the relevant and ignore the irrelevant. If you mostly write wills and trusts, that defines a subset of issues that are important to you; if you are a tax attorney, that is another subset. If you ask a contract attorney about some highly speculative matter of constitutional law, the answer will most likely be &quot;That's outside my area of specialization&quot;. The concepts of &quot;subscribe&quot; and &quot;free&quot; are mostly antithetical. If you want the really good stuff, you can subscribe to Westlaw or Lexis Nexis. If you want the really free stuff (as generally seen here), the simplest solution is to use Google which may direct you to Findlaw, Justia, Cornell, Avvo or Law SE (unabashed plug). New is not necessarily better, and frankly, new statutes are the least informative, because legislatures often say things that are less than clear on the face of it, and will need to await either administrative creation of a regulation that spells out what the law means, or a court ruling that does the same thing – maybe 10 years after the law was passed.
First off, let me confirm that this text accurately describes the reality. Second, this is less far afield from the common law than you would think. If you are in a jurisdiction without any binding case law on a particular point, a so called "question of first impression", you then turn to persuasive authority. Persuasive authority includes case law that is binding in some other jurisdiction and legal scholarship, often in the form of a treatise or commentary. And, it is much easier to find an answer in a treatise which is carefully arranged on a subject matter basis, than to do case law research from other jurisdictions. This is particularly true when you have not devoted a lot of time to learning how to find the needle of the law you want in the haystack of the mountain of decided cases on all available subject. The very difficult task of case law research was only possible on more than an isolated hit or miss basis at all in common law systems where case law matters in the years before the 1980s when computerized case law word searching started to become possible at an affordable to lawyers price, because a lot of full time institutional actors devote a great deal of time and money to developing and maintaining tools like digests, citation indexes, and annotations to statutes to allow practitioners to locate that case law. If court decisions don't serve as binding precedents, those institutions aren't developed. For example, in common law countries, until very recently, there were no good resources for locating trial court decisions and rulings in state courts which handle the bulk of litigation, but whose rulings are not binding precedents. (Electronic record keeping in trial courts has changed the economics of this practice and made it much more common to publish trial court decisions and to index them appropriately.) So, if persuasive authority in your legal system in the form of non-binding case law is hard to find because it wasn't worth the money for the legal system to collectively develop the resources to publish and index it on a systematic basis for an audience of pretty much the entire legal profession, the other form of persuasive authority, legal treatises, becomes much more influential by default. You see something similar in very early legal opinion writing by American judges before the institutions necessary to systemically utilize case law precedents was developed. Judges were constantly citing treatises like Blackstone, which is something they rarely do now, because that was what was on their bookshelf. Further, there are feedback effects. Smart people who wish to influence the law for society without going the legislative route in common law countries will often seek careers as judges. But, absent the psychic perk of influencing the law and making a difference in society, a lot of the most ambitious people in the judiciary in a common law system will choose instead to go the route of academia and seek to become law professors where they can have a similar influence, while earning similar pay and having more time off and freedom to pursue your own personal and professional interests. So, in systems where legal precedents aren't binding, people who might otherwise be inclined to write probing legal opinions that develop legal concepts are less inclined to become judges, and the people who do become judges care more about getting the right result and less about explaining their decisions in a way that will influence future judges in the same circumstances. Finally, consider that many civil law legal systems involve countries with a lot less appellate litigation than the United States (currently 330 million people with more than 200 years of case law), or the UK (currently 60 million people with about 1000 years of case law), or India (more than 1 billion people with a couple of centuries of case law, since colonial precedents have relevance). Suppose that you live in Denmark or Belgium or Portugal or Costa Rica or South Korea, where your population is much lower and your time frame during which your legal system has been in place is not as long. In a situation like that, half a dozen or a dozen leading legal scholars can publish treatises over ten or twenty years that are going to cover, somewhere, the lion's share of the pressing issues in the legal system, and there is probably only one law school in the entire country, so it is quite likely that most of the lawyers in the entire country took contracts or property or family law from the the same people in law school, which makes them predisposed to consider a treatise written by that professor a credible one in that area of law. And, all other sources are a comparative vacuum. If you are a judge, why cite non-binding precedents from your fellow non-specialist judge in a country that simply has no precedents in many areas of law and has fewer carefully reasoned ones, when you could instead look for guidance from the person who taught you this area of law in the first place and literally "wrote the book" and who was probably consulted by the government in any recent amendments to relevant civil code or statute of broad general applicability. And, once you start out using those methods, it becomes habitual and legal treatises become very influential.