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) <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 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