I think Keith's major premise is flawed.  If due process required
statutory enactment before "life, liberty or property" could be taken,
then civil actions based on common law, which do, after all, take
property, would be invalid.  It is true that "life and liberty", which
are more likely to be taken by criminal than civil proceedings, are
ethically probably viewed as more serious than the mere taking of
property, but I can  introduce you to a number of economists (some of
whom may even be listening) who would disagree with that too.
 
I also think the minor premise is flawed.  Common law, classically, is
not viewed as "judge-made", but rather as the inherited tradition of the
English-speaking peoples.  Judges do make new *interpretations* of common
law rules, but they also make new interpretations of statutes -- the new
interpretations of statutes are not viewed as "judge-made" law, and
defendants are not considered to have lacked proper notice of them.  It
is true that some (though not all) of those new interpretations have
prospective application only, but those same interpretations almost
always are held to apply to the case sub judice.  By analogy, since the
common law tradition is "received", a defendant is held to have notice of
it.  The maxim, "ignorance of the law is no excuse", I understand to
apply to common law as well as statutory rules.
 
Yours for the raising of the judicial dead,
 
 
Ken Schneyer
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