The following was originally published in De Heraut on December 23rd, 1894. And she gave birth to her firstborn son and wrapped him in swaddlingRead More
Common Law Review introduces common law as the organizing principle for understanding the social order.
The result will be to supersede the Left-versus-Right conflict as it manifests itself in contemporary political and social life. Common law provides the understanding to subsume and integrate the elements of value from both perspectives, while casting aside the elements that don’t work.
How does the common law paradigm accomplish this?
Firstly, by recognizing that the contemporary standoff is based ultimately on shared presuppositions, summarized in the rights paradigm, the original form of which was natural rights, the contemporary form of which is human rights, now morphing into animal rights as well. Everything is being forced onto the Procrustean bed of rights. In other words, the entire edifice of law and order is erected upon the idea of entitlement.
This subjectivist orientation, the bane of the modern social order, can only be superseded by recovering an objective basis. Such is gained by recovering an understanding of institutions, rightly understood. These include marriage and family, property and contract (upon which, in turn, rest credit & debt and money), active citizenship (Machiavelli’s vivere civile) and popular sovereignty (this is both national and broadly electoral, while also limited). All are expressed, in terms of institutions, through the medium of law. At bottom this constitutes a recovery of the doctrine of law and the state.
The rights paradigm engendered revolution. The major original exemplifications were the French Revolution and the American Revolution. These two stand as two outcomes, dialectically related, “attached at birth,” Siamese twins that need each other even as they engage in a seemingly interminable struggle for supremacy. (1)
The upshot of the rights revolution is that rights become the source of law. That little change, in a nutshell, is the revolution that now has spawned the most egregious attacks on the institutional fabric of civilization since the ancient world and its public idolatries.
The order needs to be reversed. Law is the source of rights.
In order to turn this around – secondly – one must realize that every social order requires an integrating principle. Human societies are inherently fragmented. Unification is imposed upon them. But there are various ways to attain this unification. One is by simple brute force — conquest and subjugation. But societies so organized do not function very efficiently. Another unifying principle is monarchy. The king, by virtue of a personal bond with his subjects, unifies them in a single polity. But this unity is fragile, and needs bolstering by law, and by a currency regime which is itself a function of the legal order.
Synergetic unity in diversity is the direct result of a robust legal order. This signals the importance of common law. Common law provides this legal order. It can do so because it is common law, shared law, law applying equally to all. Common law is nothing other than the rule of law, rightly understood: limited sovereignty, regime of private law, associational pluralism, the citizen ideal. The above-mentioned legal institutions follow in this train. These institutions, and the other various elements and aspects characteristic of common law, will be explored and elucidated.
As a result, the importance of this topic will be validated as well.
The natural rights paradigm, in its American variant, provided a semblance of a basis for the common-law regime, but this basis was unstable – feet of clay which have been increasingly exploited to undermine that regime. The entitlement orientation of the rights paradigm is now being used to establish a different integrating regime, that of interest-group politics. This has strong affinities with the “royal mechanism” of absolute monarchy of bygone days. Interest-group politics integrates society not in terms of law, but in terms of political action. Society is splintered into interest groups, and these groups are apportioned favors by the state. In this manner society attains unification. It is through the distribution and redistribution of favors and privileges from the center that unification is gained. But this comes at the expense of the rule of law. (2)
This approach has found renewed favor in our day. Only a recovery of an understanding of common law can stave it off.