How We Lost Our Common Law Heritage

by Richard J. Maybury

Two Kinds of Law

As a public school teacher and economic textbook writer, I saw that government control of the school system causes a "chilling" effect. Teachers and textbook publishers are reluctant to teach anything that might raise the eyebrows of the bureaucrats.

Any serious criticism of government is omitted from the student's lessons. Huge amounts of vitally important information about law and political power are not passed on to the next generation.

Because of this chilling effect, Americans are no longer taught that there are two kinds of legal systems, political and scientific.

Many of America's "Founding Fathers" in 1776 were lawyers, and they took care to insure that their new country would be founded on the principles of scientific law. But these principles have now been swept from the legal system, and from the schools and colleges. What we are taught today is political law.

To understand the differences between a scientific legal system and a political one, it is necessary to know how scientific law developed.

Scientific Jurisprudence.

Fifteen centuries ago the Roman Empire had collapsed. Barbarians had overrun Europe and set up feudal governments.

These feudal governments were bloodthirsty and brutal, but they had one virtue: they were lazy. They had little interest in the day-to-day affairs of the common people. as long as the commoners paid taxes and fought wars, their new governments left them alone.

This meant in many kingdoms there were no government court systems. Whenever two individuals had a dispute, they had to work it out on their own. We can imagine what happened. Disputes often led to brawls or worse. After several bloody incidents, the commoners would begin looking for ways to avoid violence. When two individuals had a dispute, their families and friends would gather round and tell them to find some neutral third party to listen to their stories and make a decision.

Legal historians tell us the most highly respected and neutral third party in the community was usually a clergyman. The disputants would be brought before this clergyman and he would listen to both sides of the story. The clergyman would then consult moral guidelines, and make a decision. This decision would become a precedent for later decisions.

As decades passed, the precedents were written down and kept in a safe place. Persons who were not too clear about how to handle an unusual business transaction or some other sticky matter could consult them to better plan ahead and avoid problems.

Eventually, some of the clergymen became so skilled at listening to cases that they acquired considerable prestige. Demand for their services grew, and they became full-time judges. The body of precedents they produced became the law of common useage, the "common law".

In its early years, common law was a private legal system completely independent of government. This is important. Students are taught that law and government are virtually the same thing, but this is quite wrong. Law and government are two very different institutions and they do not necessarily go together. Law is a service; government is force.

Two Fundamental Laws

A major problem a common law judge encountered was disputes between persons from different communities or of different religions. Guidelines on which cases were decided had to be those which all persons held in common.

There are two fundamental laws on which all major religions and philosophies agree: (1) do what you have agreed to do, and, (2) do not encroach on others or their property.

Common law was the body of definitions and procedures growing out of these two laws: "Do what you have agreed to do" was the basis of contract law; "do not encroach on others or their property" was the basis of criminal and tort law.

This is how common law became the source of all our basic laws against theft, fraud, kidnapping, murder, etc. These acts were not made illegal by Congress; they were prohibited by centuries-old common law principles.

Legal Consistency

A skilled common law judge would try to make all his decisions logically consistent with the two fundamental laws. Common law was not only a private legal system, it was a scientific one. Abraham Lincoln considered `Euclid's Geometry' to be one of his most important law books; he studied it to be sure the logic of his cases was airtight.

One of the most important characteristics of common law was its certainty. It had evolved very carefully over many centuries, changing little from one decade to the next. The two fundamental laws remained always in place, a stabilizing force. The community could expect their legal environment to remain reasonably orderly.

In fact, common law was so logical and sensible that the typical American could study and understand it! It was regarded as a source of wisdom.

The great British statesman Edmund Burke said of early America, "In no country, perhaps, in the world, is law so general a study." He observed that "all who read, and most do read, endeavor to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his business ... were so many books as those on law exported to the colonies."

A British general trying to govern America in the 1700s complained that Americans were impossible to buffalo; they were all lawyers.

Political Law

Political law is the opposite of common law. Based on political power -- brute force -- not on the two fundamental laws. It is crude and primitive. It has no requirement for logic or morality. It changes whenever the political wind changes. Fickle and tangled; no one can completely understand it.

Democracy or dictatorship, it doesn't matter; political law is arbitrary. You do whatever the powerholders say, or else. Right or wrong.

This is why majority rule is mob rule. The majority is as human as any dictator. Like the dictator, they do not necessarily vote for what is right; they vote for what they want.

Their wants change constantly, so political power destroys businessmen's ability to plan ahead. James Madison asked in the `Federalist Papers', "What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not that his plans may be rendered unlawful before they can be executed?"

The American Revolution was fought over the difference between scientific law and political law. Government officials had encroached into the private business, lives, and property of the colonists, and the colonists resented this. "All men are created equal". God has given no one special permission to encroach on others, government included.

The leaders of the American revolution believed common law was superior to political law. After the revolution, they created the Bill of Rights and other documents based on common law principles. The goal was to make the superiority of these principles permanent, and to restrain government's efforts efforts otherwise.

Discovery vs. Enactment

The founder's understanding of the scientific nature of common law can be seen in this statement by Thomas Paine: "Man cannot make principles, he can only discover them."

Common law was a process of discovery: There were courts before there was law.

The premise of common law was that there is a Higher Law than political law; the judges tried to discover and apply this Law. It was carefully, logically, worked out, case after case, century after century, much like the laws of physics or chemistry.

Political law is an enactment process. Legislators -- lawmakers -- make changes according to whatever political pressures they happen to be feeling at the moment. Something that seems right today can be very wrong tomorrow. In fact, under political law the frequent redefining of right and wrong is considered necessary; during re-election lawmakers proudly boast of the number of new laws they have enacted.

In short, we now live in a world where it is assumed politicians have some divine power to make law. In 1788, Patrick Henry realized this could happen. During his struggle to prevent creation of a federal government he warned that "Congress, from their general powers, may fully go into the business of human legislation." Henry's warning was ignored, of course, and today's burdensomely insane legal system is the consequence.

`Business Week' says that each year in the U.S. there are more than 100,000 new laws, rules and regulations enacted. This is a primary reason the economy is a shambles. Tax rates, money supply, trade restrictions, licensing laws, and thousands of other factors are stirred around in a witch's brew of regulation.

Much of this brew is lunacy. In `The Trenton Pickle Ordinance and Other Bonehead Legislation', newsman Dick Hyman cites 600 examples of our political law. In Massachusetts, says Hyman, it is illegal to put tomatoes in clam chowder. [The FOUNDATION Editorial Staff agrees that some stern measures are necessary in this instance.] A Texas law says that when two trains meet at a railroad crossing, each shall come to a full stop and neither shall proceed until the other has gone. The Arkansas legislature once enacted a law forbidding the Arkansas River to rise higher than a certain limit.

Go back and reread Edmund Burke's remark about our forefather's study of law. Notice Burke refers to law as a science. Would any sane person today call our law a science?

Observe Hong Cong. A magnet for Red China's impoverished victims of socialism. This city is often cited as a model of free-market effectiveness; it's one of the most prosperous cities in Asia, yet most in Hong Kong know nothing of free-market economics. The city's legal system just happens to be based on British common law principles.

Common law was not perfect, but it was consciously aimed in a specific direction; that of truth and justice. Political law has no aim at all, other than to obtain and use political power for whatever purposes the powerholders decide. Common law historically has had strong popular support, indeed it was the principle upon which this country was founded. It weathered continuous political assault until the politically manufactured exigencies of the New Deal finally overwhelmed it.

Liberty vs. Permission

We free-market advocates should bear in mind that under political law people have no genuine liberties; only permissions. We do not have freedom of speech -- we have permission to speak. We do not have freedom to trade -- we have licensed permission to trade. These permissions can be restricted or revoked at the whim of the powerholders. Indeed, under political law we really have no more political liberty than do the Soviets; just more permissions at the moment.

Under scientific law, the individual's fundamental rights to life, liberty, and property were held to be gifts granted by the Creator; they could not be infringed. Says Arthur R. Hogue in `Origins of the Common Law', "The common law is marked by a doctrine of the supremacy of law ... All agencies of government must act upon established principles ... The king, like his subjects, was under the law."

Our attempt to rescue civilization will fail if we continue living under political law. Even if hundreds of reforms are enacted, the next group of politicians can easily use political law to overturn them.

[Edited from `Freedom League Newsletter', Apr/May 1987]