The Tradition of Law

The basis of law has been that of development of judiciaries and tribunals, setting precedents based upon particular cases that have become accepted as a core element of society. They provide a framework of normative laws that are understandable to the average person in a society and ground individuals and communities in basic concepts of what is right and wrong. This is in opposition to the increasing strength of civil law that is being seen in much of Western society, whereby a set of pre-ordained law is referred to by courts as a standard. This presents something that is based not on experience or tradition, but on the abstract. Instead of law being developed on precedence, it is developed out of philosophy that creates a set of principles that must be adhered to, irrelevant of the situation, meaning things are judged not on the actual situation but on a set of theoretical values. This can be most clearly seen with the modern conception of human rights, where it is based on a form of entitlement, violating other individuals’ property and removing the role of responsibility and community from society. These human rights create a figurative framework that entitle individuals with certain ‘inalienable’ rights, such as a right to housing, food or healthcare, without actually explaining how these rights can be achieved or implemented. Further such rights constitute property violation, effecting the use of one’s labour or land in relation to the supposed rights of another, as well as putting into law restrictions and regulations that inflict upon tradition and obligation. Instead of this recent trend towards human rights and social justice, we should look back to the common law tradition of precedence and normative structures that ground individual behaviour and the development of relations, and move away from the abstractions of modern civil law.

The common law tradition gives a significant role to institutions, such as habeas corpus and trial by jury, and presents law on a case by case basis, creating precedents that are relevant to specific situations. It also gives concern toward people’s ingrained traditions, culture and prejudices, and does not determine a conception of human nature that flies in the face of these ideas. While it may be said that allowing these prejudices to continue results in state-enforced segregation, I would make the point that common law simply accepts these prejudices, it does not enforce them and allow for the violence that can flow from untempered discrimination. But it also doesn’t allow for forced integration like conceptions of civil law have, meaning that there is effectively equality before the law, and special circumstances aren’t created. Further, it allows one to go about their day without the effect of omnipresent laws that have little understanding outside the courts and jurisprudence so the common man can understand the law and whether they have done right or wrong. These precedents then allow us to see how liberty has developed and what can be considered unlawful, creating, as Burke states, “benefits from considering our liberties in the light of an inheritance”[1] and “Always acting as if in the presence of canonized forefathers, the spirit of freedom, leading in itself to misrule and excess, is tempered with an awful gravity”[2]. The common law tradition and the institutions that follow it temper our liberties and freedoms in the real world, grounding it in genuine principles that are tangible to the vast majority of people. This can be seen in contrast to the modern prevalence of civil law, or as it more commonly known ‘human rights’. Here we see the development not of rights, but of entitlements that infringe upon another’s property. Instead of the traditional argument of a civil society being based upon “a right to…justice; as between their fellows, whether their fellows are in politic function or in ordinary occupation. They have a right to the fruits of their industry; and to the means of making their industry fruitful. They have a right to the acquisitions of their parents; to the nourishment and improvement of their offspring; to instruction in life, and to consolation in death”[3], we now see this being superseded by a constitution based civil law that puts into place abstract conceptions of rights.

The development of normative human rights and constitutional conventions has created a new system of law, most well seen in the Human Rights Act in the UK. Instead of precedence of rulings that make up how law is defined and used, instead a set of abstract principles is used to decide how specific cases are decided, giving no priority for certain situations and allowing the development of bad laws, as law is not based on pragmatic considerations and its effect on individuals and communities, but rather on said principles, thus providing a philosophical justification that has no relevance to everyday life. Historically, the folly of these human rights-based systems were seen in the French Revolution, where a series of rights were set out yet with no necessary means of distributing these rights. As Burke noted ” What is the use of discussing a man’s abstract right to food or to medicine? The question is upon the method of procuring and administering them”[4]. In the modern day, this can be with the UN’s Universal Declaration of Human Rights where rights such as a right to social security, to food and to rest and leisure are encoded without any consideration towards actual implementation, thus creating a framework of normative abstractions that bear no necessary relation to the real world. These abstractions also come into other ideas such as equality, which itself seems to be a false god, as these concepts of equality that many want enshrined in law regularly apply to things like wealth and property. It may sound nice, yet the idea that everyone can be equal in these terms is a fallacy, as where will this wealth come from if not from other members of society. Further, much of the civil law we see is contradictory to the traditions of many cultures and the laws and rights they have developed over centuries and while forms of civil and international law do have their importance in holding blatant abusers of rights to account, the tendency for it to break into local tradition and culture and rewrite the rule book is dangerous, as is shown in the destruction of Palestinian and Iraqi cultures since the neoconservative project of liberal interventionism. Thus these types of civil law represent an infringement of one’s property and the idea of fully applicable law that bears no relation to real world examples and cases. These laws ironclad instead of interpretative, and give more power to the state to confiscate wealth and capital and move it to where they think it should be, rather than where the actual owner wants it to go. This is why we should look back to the common law tradition as a bulwark against the state, as well as ideas of decentralised contract law as seen in the feudal era and concepts of ethical intuitionism as posited by Michael Huemer.

The tradition of law as seen in ideas of common law presents a format of law and rights that are inherited from judicial wisdom and the decisions of juries, and not from executive power. This tradition has an understanding of society as composed of little platoons of communities and families that have developed their traditions and cultural makeup, and don’t treat people as individuals subject to abstractions of law based upon conceptions of human nature that are irrelevant to most people. Thus common law presents itself as an effective justifier and maintainer of the liberties and rights of common people against the oppressive power of the state. It also allows to take an interpretive stance on bad laws that can come about through mechanisms such as jury nullification, which are possible due to common law’s basis in trial by jury. Further it gives back rights that have been slowly eroded by modern day civil law, such as freedom of association, freedom to discriminate and to create communities in the image we most like, and ending forced integration and state multiculturalism that destroy tradition and community. There are also other conceptions of law that complement the common law tradition, such as the development of decentralised contract law. As McMaken notes “the basic characteristics of feudalism in Western Europe are a fragmentation of political authority, public power in private hands, and a military system in which an essential part of the armed forces is secured through private contracts”[5] showing a decentralised form of law and relations that did not rely on executive power. McMaken notes further that “the Feudal system was similar in that power was decentralized, and conflicts were resolved through complex systems of contracts and arbitration”[6]. The feudal law that McMaken talks of is complementary to common law, as the latter creates precedents that form lasting rights and liberties and the former governs business relationships through decentralised system that moves away from the regulatory frameworks created by executive power. Going back to interpretative stances on common law, the idea of ethical intuitionism as posited by Huemer develops a moral theory of ethical awareness whereby individuals have an innate recognition of their fellows’ humanity. This is seen within many communities, where there is recognition of community and cultural identity that binds people together and allows to have a conception of right and wrong. This theory I believe is also complementary to a common law system, as the ability for bad laws to entrench themselves in a society is quashed by communities not recognising such regulation and authoritarian diktat, thus removing more power from the executive. Overall, the law should be in the hands of courts, individuals and communities and not put into the hands of governments and international organisations that form law on the basis of precedence but on the basis of absolutist philosophy. Rather law should be based on the organic traditions of a peoples or communities, discovered through ethical intuitionism and cultural tradition, much as Burke posited.

[1] Burke, E. (1790). Reflections on the Revolution in France. London: James Dodsley. 29.

[2] Burke, E. (1790). Reflections on the Revolution in France. London: James Dodsley. 29.

[3] Burke, E. (1790). Reflections on the Revolution in France. London: James Dodsley. 50.

[4] Burke, E. (1790). Reflections on the Revolution in France. London: James Dodsley. 51.

[5] McMaken, R.. (2015). Feudalism: A System of Private Law. Available: Last accessed 4th Jun 2015.

[6] McMaken, R.. (2015). Feudalism: A System of Private Law. Available: Last accessed 4th Jun 2015.


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