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                     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]

[END OF DOCUMENT: fl870402.txt.lis ]


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