Transcript of the above video: 

For folks who have been asking about my hair, actually gotten a couple emails to like hey what's going on man I am growing out your hair you going along I have actually been playing a little game with my kid the last couple of weeks where I sort of will be sitting there talking to her and I'll say, is my hair too long? She'll turn around look me and she'll say no, but don't let it grow much more, but then that has been going on for like 2 weeks and I was kind of joking with her because I don't know if she knows that hair grows or whatever. Obviously she does, but I was sitting there having lunch yesterday though and she looked up at me unprompted, and said, "you are starting to look like a girl", so probably it is time for a haircut so yeah if you have been heard but yeah I haven't play a little game with my daughter but the show must go on, so I got the hair I have got today.

That being said, I actually thought of making this video and I want to be clear when I say fatal flaw. I'm not saying that the Common Law is inherently flawed or something like that. But I was watching another YouTube channel here called the So Larry report which is put on by a lady and Catherine Austin Fitz but there's another gentleman on there that tends to collaborate with her rather frequently, a gentleman by the name of John Titus who also has I believe another channel called Best Evidence. He is an American Attorney I believe if I am not mistaken, at least he is legally trained, and I have enjoyed his work for some time, Ms. Fitz as well but they were recently in a recent podcast, whatever you want to call it interview, and I was listening to it and he brought up a really good point and it's something I have tried to articulate for years and I haven't been able to articulate it in the right words and Mr. Titus just in an instant in like one sentence, articulated something that I have been trying to put into words for a long time. So on a certain level, I am kind of jealous of him, but for those who are unaware, I have studied the Civil Law here in Thailand and how it compares - it's called Comparative Law - how it compares to the notions of Common Law precedence, stare decisis, equity that we utilize in both the Westminster as well as the American Common Law system. I have looked at all of these things and I like to compare them to just a general Civil Law System and the Thai Legal System specifically because as I have discussed in other videos, the Thai legal system is in and of itself unique. It’s Civil Law but the Thais adopted things from many different countries, concepts from many different countries. In many ways, they kind of adopted certain mercantilist legal structures; there are some American legal structures that are even sort of thrown into the mix that is Thai. If anything, Thailand's Legal System is like a gumbo if you will of other countries sort of concepts and legal philosophies. Then on top of it, they place their own legal philosophy on it which as we discussed, things like the Three Seals Law pre-dates what we call the Civil Law here in Thailand by many centuries in fact in certain cases with some of these legal concepts. But a Civil Law body of law was brought in as the unequal Treaties were wound down as we have discussed in other videos, especially videos that I made in the past regarding Francis Bose Sayer who is an American who acted as an advisor to the late King Rama VI who actually was instrumental in getting many of those unequal Treaties concluded. They basically wound them down in the aftermath of the First World War which was a major benefit for Thailand. But one of the things that arose out of that - the upshot if you will - was effectively the creation of what we call the Civil and Commercial Code or this body of Civil Law that most foreigners will oftentimes operate under here in Thailand. 

So circling back to what we are talking about in this video, I was watching that So Larry report and this is the reason for the thumbnail, which the thumbnail is actually Hannibal, I was about to say Hannibal Lector, no Hannibal Barka. He was the late General of at the time if I am not mistaken, he was the Carthaginian General who invaded Rome. Basically came up over the Alps with a bunch of elephants, that's sort if the legend, but came up over the Alps with his Army and the elephants were in it, and surprised Rome, basically sacked many, many armies in the field but he could never capture Rome. If you read Roman history they will tell you about a gentleman named Fabius. He came in; he was one of the Consuls. He basically came up with what is now referred to as the Fabian strategy. It is sort of waiting it out, going into the Hinterland, not engaging the enemy and just sort of letting them deplete over time, and that is in fact kind of what happened to Hannibal. Hannibal is very odd. If you study military tactics and history and strategy, Hannibal is kind of a mixed bag. He's almost a tragic figure in terms of military history because he was amazing, but he ultimately lost. He's very Napoleonic in that way and the person that beat him eventually Skippio Africanus on the fields of Zama, beat him in much the same way that hundreds, thousands of years later Wellington would beat Napoleon which is basically he mimicked him. He learned how he operated, figured out how he thought and then figured out how to beat him. That is basically what Scipio Africanus kind of did, because Hannibal was so brilliant, which again circles us back to what we are talking about here in the thumbnail, which is a tactical win and a strategic loss. And what I would call the "fatal flaw" of the Common Law, and that is the Common Law constantly ends up in this feedback loop if you will of tactical wins and overall strategic losses. 

What am I talking about? Well in our system, because again it's adversarial too and this is very different than the Thai system or the Civil Law System generally. Generally speaking, the Civil Law does not use precedent per say, although in the European system now from commentaries and things, it is my understanding effectively it kind of does bring forth these legal principles in a similar manner to the use of stare decisis or precedent in a Common Law context but let's set that aside. As a general rule, the Doctrine of Codification and things are the bedrocks to the Civil Law, less the notion of stare decisis or in Latin, 'let the decision stand'. Basically the notion of Common Law precedent, prior cases, the holdings can dictate the thinking in later analysis, in later cases. While this can create certainty, it is also as Mr. Titus points out in that clip - and I'll put a link in the description below to the clip - where you can see what he is talking about in context. It is something of a fatal flaw, and in many ways it is because we put our best minds, legal mind, for example in the context of cases where something may challenge a fundamental Liberty of the United States but that fundamental Liberty enshrined in the Constitution, for example State's rights was an example of this, which unfortunately State sovereignty was utilized a great deal especially in the first half of the 20th century to basically discriminate against both based on race. Okay, the Federal Government steps in, which under that scenario was sort of warranted, in order to protect the liberty of individuals. That said 9 times out of 10, the Federal Government stepping in over the State's is actually detrimental to one's individual liberty; that's just the way that it works practically, okay? 

The point I'm trying to make is in those Civil Rights cases it's an example of this sort of fatal flaw where you are having to use the best legal minds to go after certain concepts that perhaps are things you would want to preserve most of the time, but in these limited instances are actually negative. The problem with that is the case law sets a precedent that then can operate against the underlying liberty on an ongoing basis. And I think that this is the fatal flaw that Mr. Titus is trying to point out. 

Also the other thing is is candidly, I have talked about I talked about this a lot in my own study of comparative law over the years, which is just the fundamental notion of why does Hadley versus Baxendale still control? I mean again, I understand it from the concept of we want some notion of certainty, but to rigidly control is like a dead hand from the grave in my opinion in a legal sense. We're allowing sort of the dead to dictate ongoing legal theory. It's not the greatest way to operate under certain circumstances again, especially where technology changes so much that the law can barely keep up. Now I don't know what the right answer is and I am not in favour of ending the Common Law in many ways the Common Law is very, very useful but one fatal flaw that is not oftentimes pointed out within the Common Law is this notion that one, you will oftentimes be attacking good things for limited reasons, in cases involving a very unique set of circumstances. That is problematic in its own right, and then on top of it in a scenario where you can effectively gain a if you want, where you can get a tactical win while having a strategic loss, is one of these situations wherein you take something to court to fight in your limited case but in reality you are setting a precedent that goes against broader Liberty. That's the fatal flaw; that's problematic. 

An example of this phenomenon - although not in the Common Law context for example in the West or in America - but here in Thailand recently to my mind is this whole tax debate, the tax debate itself. If we had have never been talking about this, I expect as a practical matter, very little would have ever changed. But the fact that everybody got all up in arms and started having a big, not up in arms but got all freaked out and then started sort of demanding free advice, it resulted in these folks coming out basically the stamp-pimps coming out and all saying, "oh no, you all owe taxes, you all got to go file, or you all got to go do something where you pay us some money", okay? But think about it. Having the underlying debate, just having that is kind of a loss in and of itself, when you compare it to the way things were working before which was nobody really cared about any of this; there was no discussion and that is to my mind again, a sort of fatal flaw of the American legal system, or the Western, Common Law legal system, again very different from the Thai legal system because it's adversarial. We had this paradigm where we need to get into an argument to hash this out. Well in a Civil Law System that may not be a good thing, as we have seen throughout this tax debate. Frankly, all it's done is cause a lot of consternation. I don't think it's going to be any major benefit to Thailand in terms of any accrued revenue because anybody that would owe anything is just going to run out of here before the filing deadline, and anybody that doesn't is just going to end up going into the system and wasting a bunch of public time and resources in terms of public man hours, of public fund to process all these people through, who don't owe anything to begin with. And again, that adversarial nature of our Legal System in the West that we oftentimes carry with us everywhere we go, again that desire to get into an immediate adversarial situation and then engage in this sort of precedent setting discourse, it has benefits but it is not 100% purely positive. And that is the point I am trying to bring up with this video and I really, really must thank Mr. Titus for stating that so concisely and eloquently because I've been looking for a way to describe that scenario for years and just have not been able to figure out a way to articulate it, and again I think it's best put this flaw in the Common Law System if you will, which again is not a reason to upend it, it's just something to have in the back of your mind when you are doing analysis of Comparative Law or just operating practically here in Thailand and you have to deal with the legal systems and you start saying, 'oh well, it's better wherever I'm from.' Well it may or may not be, but again summing up Mr. Titus's quote that again, 'the tactical win and the strategic loss', yeah that is a fatal flaw to my mind of the Common Law; it's something to bear in mind and I think it provides some insight for expats here in the Kingdom of Thailand.