'Production Versus Plunder' Part 27 – The Great Common Law
By Paul Rosenberg - October 03, 2015

A great problem of our era is that law no longer guarantees justice, or even gets terribly close to it. Our law is far removed from its original roots, where it was produced by average people, for their own needs. Once taken over by rulership, law becomes merely a tool of rulership, not a tool for justice.

Continued from last week


As explained previously, the great eruption of civilization in Greece, after their Dark Age, was made possible by the difficult geography of the area, which made assembling an empire and a national priesthood very difficult. As we explained in chapter three, this allowed the development of literature and science with no interference from above. Unapproved ideas were unhindered and the best of them could take root. In a more abstract way, the same thing happened in England in the 5th through 10th centuries A.D.

During this time, kings, nobles and the Church all fought for control and advantage. There were endless fights over who was permitted to appoint bishops and over the legal status of clergy, among many smaller disputes. These two groups fighting meant that large areas of life were left alone as the combatants busied themselves with their battles.

In Europe proper, the Church had both power and communications, which meant that they could exercise a great deal of control, even while scrapping with potentates. On the more distant island nation of England, however, their power was reduced. And, because of the physical separation from Europe, communication was slower. It was thus in this place that a new step forward could come, which had its foundations in the common law of England.

Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals, rather than through legislative statutes or executive action. The common law is created and updated by judges, not by legislators.

Under the common law, a decision in any case refers to decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of "the law" judges define the law by creating precedent. This body of precedent is called common law, and it binds future decisions to itself. In future cases, when parties disagree on the law, common law courts look to past decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision. (This is known as the principle of stare decisis.) If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, the court will write and publish its own decision, forming a new precedent. (This is often called a matter of first impression.) This new decision must then be followed by future courts under the principle of stare decisis.

On the occasions where a bad decision is made by a judge, other judges will reject the decision, usually publishing an explanation. If still other judges agree, the bad decision is eventually eliminated from the law books. Note that no legislation is required in these processes and no authority is required from a king or pope. This is because the common law was formed in the same way as the universities of the era – men who needed it simply built it themselves, with no one either forbidding or authorizing. They built the system according to the necessities of active men, not the necessities of rulers. The common law, unlike Clerical Law or the old Roman law, was written primarily in the conversational language of the people, and was, therefore, accessible to them. This law was written for normal people, not for experts.

The common law began to form during the Early Middle Ages, once hierarchy had failed. It began to grow slowly, in scattered places and situations, until it became a method of law that was respected and demanded by average people. And as it grew, it formed a basic theory of rights, typically called the theory of negative rights, which embodied the ethics of productive Christians.

The theory of negative rights says that the right way to look at the world is this: Every man should be free to do whatever he wishes, so long as it is not forbidden by law.

The opposing theory of positive rights says that the right way to look at the world is this: Men are permitted to do only those things which are permitted by law.

You can see that the idea of positive rights contrasts with the basic core of Western civilization: That truth is revealed over time. If more truth is coming in the future, then no lawmaker knows enough to prescribe the correct limits of human activity.

On the other hand, the negative rights ideal harmonizes perfectly with the core ideal of the West: We forbid certain acts, as we must, but we leave everything else open to adaptation, creation and the discovery of new truth.

Being built around the idea of negative rights (even if not specified as such), the common law developed two primary statements, sometimes called axioms. They were:

  1. Individuals should keep their agreements.
  2. No man should aggress against any other man, or his property.

Aggression, in the usage above, would include all major types of force and fraud, but would not include legitimate self-defense.

A thousand years before the common law, Cicero wrote: True law is right reason, consonant with reason. This is what the common law grew into, as it evolved in conditions of competition and the freedom to improve. Litigants in the early period of the common law were not required to seek justice from the king; only in matters of land ownership did the king have any monopoly on justice. Historically, this was an unusual situation, as even the very first rulers were careful to assert their right to be the sole judge over all humans under their control.

By the beginning of the 12th century, common law was so well established among the populace that the kings of England had to acknowledge it. When Henry I proclaimed his Charter of Liberties in 1100, he said that things ought to be done "through force of law and custom," or "in a lawful manner," or that "were lawfully made." Henry was accepting, not just the common law, which was the law of custom not a law of edict, but he was also accepting the idea that law is binding even upon himself, the king. A Mesopotamian ruler of 6000 B.C. would never have made such a comment: He was the law; he was sovereignty personified.

The Clarendon Constitution of England, in 1164, called itself the "record and recognition of a certain portion of the customs and liberties and rights of his ancestors – namely, King Henry, his grandfather and of others – which ought to be observed and held in the kingdom." Thus the laws and customs developed by the citizens, rather than laws imposed by rulers, became the law of England. This was explicitly acknowledged by Article 39 of the Magna Carta (1215 version), which read, "No free man shall be taken, or imprisoned or dispossessed, or outlawed, or banished, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land." Note that the ultimate arbiter was not the king, but "the law of the land," which was the common law.

Magna Carta did not, as is sometimes said, give rights to the people. Instead, it bound the king to the common law of the people and granted powers to the nobles. Again, this was not the usual foundation of rulership, and it very soon got the attention of other rulers, who did not like what they heard.

Once news of Magna Carta reached Pope Innocent III (two months later), he immediately issued a bull (a papal decree) against it, calling it "a shame for England," and saying: We utterly reprobate and condemn any agreement of this kind, forbidding, under ban of our anathema, the aforesaid king to presume to observe it. The Pontiff, schooled in matters of rulership and empire, understood that a crack in the façade of authority could de-legitimize all rulership, including, eventually, his own. And, Pope Innocent was right. The model of Magna Carta eventually led to the American Revolution and could lead to further de-legitimization of rulership in the future.

King John and those who followed him tried to repeal Magna Carta, but the barons of England stood their ground. Popes threatened eternal judgment; kings raged with threats, schemes and awesome shows of authority. Masses of clergy and believers reviled them, but the nobles refused to give in to intimidation; they outlasted the threats and liberty gained at least a partial foundation.

And, again, the names of the barons of Magna Carta are mostly forgotten, as is the name of the author of that crucial document, Stephan Langton.

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