BY ROBBY GRAY
To read the next essay in this series, Common Law and Science, click here
Common Law gave rise to some of the greatest countries in all of world history but now it is all but forgotten as the world plunges deeper and deeper into chaos. It is amazing to think that only about 227 years ago the Americans of that day didn't just know about Common Law, they attempted to build a government based on Common Law. Those Americans had seen what big governments were capable of in Europe, so they wanted a government that was as small as possible and based on Common Law. We have so forgotten the principles of Common Law that almost no one today can even define what Common Law is. Surprisingly enough it is even hard to find a clear definition of Common Law in a modern dictionary or encyclopedia! A better understanding of Common Law can be achieved by an extensive look into the lexical definition of Common Law, its function, and some examples of Common Law throughout its history.
An encyclopedia is a good place to start when defining Common Law due to its technicality and overall acceptance. Here is Common Law described according to the World Book Encyclopedia; “Early in England's history, judges decided cases according to the way they interpreted the beliefs and unwritten laws of the community. If another judge had ruled in an earlier, similar case, that judge's decision was often used as a precedent (guide). After many judges decided the same question in a similar way, the ruling became law.” By unwritten laws, italicized above, World Book Encyclopedia means higher law (higher law is law that the government isn’t even above and that we are all bound to). According to the rest of World Book Encyclopedia's description, law was not made up by the judges, it was discovered. In fact, it is a system that uses a method that is extremely similar to the scientific method. In the scientific method you can’t just say that The Theory of Relativity is true, you have to test it over and over. In the same way you can’t just make up a law, you have to test it over and over. It is also interesting to note that a scientific law uses the same word, law, as political law does.
The function of Common Law is hard to understand by a cut and dried encyclopedia definition, but it is equally important in understanding what Common Law is. Judges today, when trying a case, look to the law that has been made up by politicians in deciding guilty or not guilty. With Common Law, though, the judges look to higher law, and to past cases, to decide whether one is guilty or not. Through the ages judges, under Common Law, were able to come up with two laws which all religions and all major philosophies agree: (1) do all you have agreed to do and (2) do not encroach on other persons or their property.* These two laws are the basis for contract and tort law, also known as criminal law, respectively. These two laws are the source of all our basic laws against theft, fraud, kidnapping, rape, murder, and so forth. It was the judge’s job to listen to a case and decide wether or not someone had broken an agreement or encroached. Keep in mind that the above acts were not made illegal by Congress. Long before America was even discovered, these acts were found to be illegal by judges, who based their decisions on precedents and religious principles.
Finally, to get an idea of how common law is applied around the world, you need to know some examples of common law throughout its history. One of the most recent examples of Common Law is the Nuremburg trials. The Nuremburg trials took place between1945 and 1949 but most people have already totally forgotten about the most important legal decision of the 20th century. In the Nuremburg trials the Nazis that were being tried had only followed the orders and laws of there government; so how could most of them have been convicted? The judges agreed that there was a higher law that has to be obeyed, even if it means disobeying the orders from superiors or from the government. It is amazing to think that these decisions were made only about 54 years ago. Since 1949 the governments of the world have done their best to bury the significance of the Nuremburg trials. Surprisingly enough, another good example of Common Law is the Roman civilization. Roman civilization can be divided into three parts, the Roman Monarchy, the Roman Republic, and the Roman Empire. The Roman Republic was a time of expansion and abundance under an early form of Common Law. Now you may be saying, “I thought that the pax Romana was the time when Rome was at its greatest and that this was a time when Rome reverted to statism.”** This is perfectly true but, during the Roman Republic, Common Law had created enough wealth so that the Roman government could have the sufficient funds to support its statist government, for a while. It wasn’t long before the taxes, inflation, and made up laws of the Roman Empire had pushed Europe into a dark age. It is scary to think that the United States of America seems to be following down the same path. The original founders of America tried extremely hard to create a constitution based on Common Law that would protect Americans from the dangers of big government. Now it seems as though we are going down the same path as Rome as more and more people cry out for a bigger government.
I hope you now have a better understanding of what Common Law is through this extensive look into the lexical definitions of Common Law, its function, and some examples of Common Law throughout its history. It is so important to tell other people around the world about what Common Law is, especially since it is even hard to find a decent definition of Common Law if you’re looking for it. Common Law looks to discover law a lot like the scientific method, and judges in the past have been able to come up with two fundamental laws: (1) do all you have agreed to do and (2) do not encroach on other persons or their property.* It would be great if people could remember the Nuremberg trials and the Roman civilization so we can learn from the past and not repeat its mistakes. It will be a difficult task to tell people what Common Law is but it is also necessary if we don’t want to be knocked back into another Dark Age. SPREAD THE WORD!
* Copied from Whatever Happened to Justice by Richard J. Maybury. Published by Bluestocking Press ISBN 0-942617-10-X
**STATISM- The opposite of the original American Philosophy. Says political power is a good thing. Government is our friend, our protector, the solution to our problems, and there is no law higher than the government’s law. As defined in Are You... Liberal? Conservative? or Confused? By Richard J. Maybury. Published by Bluestocking Press ISBN 0-942617-23-1
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