Time: Fri Aug 29 09:47:34 1997
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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)
<snip>
> [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.
>
<snip>
========================================================================
Paul Andrew Mitchell : Counselor at Law, federal witness
B.A., Political Science, UCLA; M.S., Public Administration, U.C. Irvine
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