Two Fundamental Maxims
A major problem a common law judge encountered was disputes between persons from different communities. Maxims or principles upon which cases would be decided had to be held in common by all good people. 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.
Scientific or common law developed on these two foundation maxims: "Do what you have agreed to do" was the foundation maxim of contract law; "do not encroach on others or their property" was the foundation maxim of criminal and tort law. A tort is harm to another or to property of another. 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 statutes enacted by legislatures; they were prohibited by centuries-old common law, the heritage of the people who settled this continent.
Legal Consistency
A skilled common law judge would make all his decisions logically consistent with the two fundamental maxims, the discovered principles, and the record of already decided cases. This served one of the most important values of scientific or common law: its certainty. Scientific or common law changed little from one decade to the next. The two fundamental maxims anchored it, a stabilizing force. The community could expect their legal environment to remain reasonably orderly. The people could be self-governing according to law.
In fact, common law in America at one time was so logical and sensible that the typical American could study and understand it. It was regarded as a source of wisdom and taught in the family circle. 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. These were the people who gave the world the great American Declaration of Independence.
Political Law
Political law is the opposite of common law. Based on political power -- brute force -- not on the two fundamental maxims. 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. Political law is also known as feudal or civil law.
Democracy or dictatorship, it doesn't matter; political law is arbitrary. You do whatever the power holders say, or else. Right or wrong, it commands obedience.
This is why majority rule is mob rule. The majority is as ill a ruler 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 a man'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?" Political law thus destroys prosperity.
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 scientific or common law was superior to political or civil 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 otherwise.
Discovery versus 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. 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. When error was discovered by reason, it was overturned.
Political law is the product of an unreasoning crowd. Legislators -- wrongly referred to as lawmakers -- vote for and against statutes according to the political pressures of the moment. What is legally right by such statutes today may be wrong tomorrow. In fact, the frequent redefining of legal right and wrong is considered am accomplishment; during re-election legislative candidates proudly boast of the number of new "laws" they have made. A self-deluded crowd calling itself a legislature will even attempt to command nature. The Arkansas legislature once enacted a statute forbidding the Arkansas River to rise higher than a certain limit. The ignorance of the people about the difference between scientific, common law and political statute allows legislators the delusion that they are law-makers. The uneducated yield power and the politicians take it.
Because those who came before us and after the Founding of our nation neglected to educate themselves and their generation in the knowledge of scientific law, we now live in a world where most people ignorantly assume politicians have some divine power to make law. In 1788, Patrick Henry warned this could happen during his speeches to prevent ratification of the Constitution. He predicted that "Congress, from their general powers, may fully go into the business of human legislation." Patrick Henry's foresight has been proved correct to our woe. Today's burdensome, irrational American legal system of "human legislation" is the proof.
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 political regulation.
This brew is lunacy. In `The Trenton Pickle Ordinance and Other Bonehead Legislation', Dick Hyman cites 600 examples demonstrating the idiocy of political law. In Massachusetts, says Hyman, it is illegal to put tomatoes in clam chowder. 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.
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 present legal system a product of science?
Common law was not perfect, but it was consciously aimed at serving truth and justice. Political law has no aim at all, other than to obtain and use political power for whatever purposes the power holders decide. Common law embodies the principles upon which this nation was founded. It weathered continuous political assault until the politically manufactured emergency of the New Deal was used to overwhelm it.
Liberty vs. Permission
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 power holders. Indeed, under political law we really have no more political liberty than did the people under communist and socialist Soviets; just more permissions at the moment.
Under scientific law, the individual's fundamental rights to life, liberty, and property were endowments from 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."
Government control of the education of the young, of the school system, causes a "chilling" effect on teaching what we and our families need to know about our heritage of scientific law in order to preserve freedom. Teachers and textbook publishers fear to mention anything that the bureaucrats who control budgets and hiring and firing might disfavor. Any serious criticism of government is omitted from the student's lessons. Vital knowledge about law, our heritage, and the history of the struggle for liberty and justice are not passed on to the next generation.
Our Common House is in a shambles. The roof leaks and the foundations are rotting. We have no choice. It is our fate that we must interrupt our pleasures and private pursuits and join with others to study the common law to learn how to restore the House. Otherwise, a cold, cold wind will soon blow in on us and we shall be more unsheltered beneath every political storm that arises than we already are until finally we shall live in misery in a complete ruin.
