Time: Fri Aug 29 09:47:34 1997
	by usr05.primenet.com (8.8.5/8.8.5) with SMTP id GAA13106;
	Fri, 29 Aug 1997 06:17:27 -0700 (MST)
Date: Fri, 29 Aug 1997 06:15:51 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Common Law vs Political Law (fwd)

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

Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

tel:     (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night
email:   [address in tool bar]       : using Eudora Pro 3.0.3 on 586 CPU
website: http://www.supremelaw.com   : visit the Supreme Law Library now
ship to: c/o 2509 N. Campbell, #1776 : this is free speech,  at its best
             Tucson, Arizona state   : state zone,  not the federal zone
             Postal Zone 85719/tdc   : USPS delays first class  w/o this

As agents of the Most High, we came here to establish justice.  We shall
not leave, until our mission is accomplished and justice reigns eternal.
[This text formatted on-screen in Courier 11, non-proportional spacing.]


Return to Table of Contents for

Supreme Law School:   E-mail