What is the Law?

“Stroke of the pen.  Law of the land.  Kinda Cool.”-Paul Begala, Clinton presidential aide.

According to Dictionary.com, the law is “the principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision.”  In other words, the law is the set of rules that we live by.  As the definition indicates, there are two methods by which laws come into existence.  One is through the legislation of a political body.  This method is also known as legal positivism and the resulting laws are called statutory or sometimes fiat laws.  The other way in which a law is “created” is by codifying the existing customs of a society.  This approach is known as common law and was the foundation for the American legal system which was originally based on British common law.  The differences between these two systems of law are much more important than simply the mechanics of how laws are established.  One of the legal approaches is the cornerstone of liberty.  The other is the wellspring of tyranny.

We have all heard that “America is a nation of laws and not of men.”  What exactly does that mean and is it really true?  In answer to the latter question, yes it was, at least until the legal positivists took over.  The answer to the former question is a little more complex.

In general, the Founding Fathers believed in natural law, the idea that there is a set of rules that are inherent in the nature of mankind and therefore have validity everywhere and in all circumstances.  Thomas Jefferson said that “Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the Author of nature, because necessary for his own sustenance.” 

According to Jefferson, the rational for breaking with England laid in the assertion that people have a right to self-determination, a conclusion derived from natural law theory.  In the Declaration of Independence, Jefferson wrote:
“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
Jefferson drew heavily on the work of John Locke to establish his argument that individuals are endowed with natural rights:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
According to natural law, rights are not granted by government, but are an inherent feature of the human condition.  Unlike inanimate objects and animals, human beings are rational, thinking creatures.  We have the ability to affect the world, to mold, build, and control our lives.  This is our nature as human beings.  The only way to fulfill this nature is through the rights that Jefferson identifies.  (Note that there is a difference between natural rights, which are inherent in our nature as humans, and government priviledges which are now mistakenly called “rights.”)

Natural law had an profound influence on British common law.  In many ways, British common law was simply an attempt codify natural law.  During the fuedal period, lords had very little interest in their subjects except to collect taxes.  Unlike contemporary governments, the State did not provide a judicial system through which individuals could solve disputes.  Thus, when a dispute arose between commoners, these folks would often seek out a respected member of the community, usually a religious official, to mediate their differences.  Since there were few “laws,” the mediator would base his decision on his religious beliefs.  Incidently, the Ten Commandments, with its prohibitions on murder, theft, and fraud, has much in common with natural law.  The decisions that the mediators reached provided a precedent for future cases, building a system of law which would eventually be known as common law. 

Was common law perfect?  Of course not.  Man is an imperfect creature and any system that man creates will be flawed, but a common law system based on natural law theory has some significant advantages over a positive legal system.

Natural law assumes that the law already exists.  The role of judges, lawyers, and juries is to discover this law.  Therefore, under such a system, judges and lawyers are considered scientists.  Just as scientists who study the physical world are attempting to uncover the laws which govern our world, judges and lawyers are trying to figure out the laws which govern human action and interaction.  Most of the judge’s work focused on determining property rights in various disputes to determine who had trespassed against whom.  For example, while the issue of “public” airwaves is supposedly so complex that the only way to solve it is to grant the government a monopoly on regulation of the radio spectrum, in the 1920s courts were quickly establishing “homesteading” property rights in the airwaves.  Whichever station was using a given frequency in a certain geographical area first was assumed to own that portion of the spectrum in that area.  The FCC was not established in the public’s interests, but in the interests of limiting competition and granting special priveledge to the politically connected.

Unfortunately, many folks now have a very low opinion of lawyers, viewing them as dishonest shysters who manipulate language to their benefit.  This wasn’t always the case.  Imagine how well-respected lawyers would once again be if their job was not to obfiscate the truth but to uncover it.

Unlike positive law, common law is relatively simple and immutable.  We all instinctively know what the rules are.  Keep your mitts off other people and their stuff, and honor your contracts.  Contrast that with positive law.  The federal register alone contains 80,000 pages of laws, rules, and regulations.  How can ignorance of the law not be an excuse when the volume of laws is absolutely overwhleming?  In addition, the law changes depending on the era and the geography.  In the 1920s, it was illegal to distribute alchohol.  Now, in certain places, it’s not.  In some places, you can gamble, in others you can’t.  Laws are always changing but very few of us are lawyers, which means that the average person may have a tough time keeping up with what is legal and what is not.  As James Madison pointed out, “it will be of little avail to the people that the laws are made by men of their own choice if the laws be … so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”

Positive law can also be referred to as “political law.”  Political law has no basis other than the caprice of those who hold political power.  Politicians today are commonly referred to as “lawmakers.”  This term assumes that there is no higher law than the government’s law and that politicians can do whatever they want.  No wonder politics has become such an important part of American life.  Those who run the show make the laws, even if their laws subvert the laws of nature.  No longer are our rights an inherent feature of the human condition; they are now the gracious bequest of benevolent rulers.  Thomas Jefferson said that ”a free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate.”  When there are two classes of people, those who make the laws and those who are forced to abide by them, can we really say that we are still free?

Whether you believe that natural law was created by God or is simply a feature of the world in which we live is inconsequential.  The point is that natural law makes civilization possible.  The two rules, do not encroach on other people or their property, and do all you promise to do, allow us to live in harmony with one another.  They provide incentives to improve our lives by guaranteeing that the fruits of our labor will not be stolen from us.  They ensure that trade and enterprise can take place by creating a framework for contracts.  Natural law brings order out of chaos.

Political law, on the other hand, creates chaos.  Laws are too numerous, have too many exceptions, and are always changing depending on who holds political power at a certain time.  Political law endows certain people with different rights than other people; as in George Orwell’s Animal Farm, all people are created equal but some are more equal than others. 

Worst of all, political law is the fountainhead of fascism.  Fascism is often mistakenly identified as a political and economic philosophy.  I would argue that fascism is actually the abscence of any philosophy whatsoever.  Fascism is based on the belief that the State should do whatever is necessary in any circumstance.  Under fascism, the law exists simply to serve the purposes of the State.  In a free society, the law exists to protect the individual, often from the State.

Government and law are not synonymous.  In a free society, the government does not create “the law.”  The law already exists and the role of the government is to discover, codify, and enforce this law equally among all people.  If we allow government to create the law, it becomes an imminent threat to liberty and the politicians who are supposed to be our servants become our masters.  

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  • 10/7/2008 3:12 PM Anshuman wrote:
    Bravo! Well written. To add my penny's worth....After World War II, jurists across the world realized that the unyielding positivism as advocated by Kelsen etc were taking us down the wrong road. This sparked a revival in something akin to natural law: Human Rights. However, today's natural law theory are more 'scientific' than the theory of, say, Cicero or Locke. There is no unyielding determination towards qualities like liberty etc...but there is a feeling that an over-positivistic law is not correct. In fact, the giants of legal thinking today like Dworkin proved that it is not possible as there can be many interpretations of the same law.
    Reply to this
  • 11/4/2008 12:20 AM Vinnie wrote:
    Dear Citizen X,

    Just a thought... Our present problem may be all jurisdictional. We're living in a fiction and not a republic after all.
    Have a look for yourself. Check the reference and see what the definition of the US really is. The question then is how did we become part of this and how do we go about removing ourselves?

    TITLE 28 PART VI CHAPTER 176 SUBCHAPTER A § 3002Prev/Next § 3002. Definitions

    (15) “United States” means—

    (A) a Federal corporation;
    ( an agency, department, commission, board, or other entity of the United States; or
    (C) an instrumentality of the United States.

    Best wishes,

    Vinnie Terranova
    Reply to this
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