Sunday, April 24, 2005

Good Society, Liberty And The Rule of Law

I've often heard the comment that "we are a country of laws" or "we live by the rule of law" as if it is law that makes America or any country free or a good place to live.

If you look around the world, even the worst dictatorships and tyrannical regimes have laws of the land. These laws neither make them good nor give them liberty.

Good society is not created by laws, rather laws are created by good society to protect that society. Laws have only two possibilities, to guarantee liberty or to limit liberty. At no time do more laws make people behave better. There may be some fear of the consequences that keeps some people from going against the grain of good society and the laws they create, but, in good society most people do not live in the fear of these consequences on a day to day basis. In good society the general rules of behavior are understood and adhered to for the sake of good society not out of fear.

Those who do not contribute to good society must then go in fear of the consequences enforced by the law.

It is only through the consensus of good society that democracy can actually exist. Without the acknowledgement of certain unwritten rules of behavior across society, regardless of words written on a paper called "laws", all would be chaos, lawlessness and the rise of a tyrant would be imminent as the parts of "society" that simply longed for order would surely give away some of their liberty to gain such order.

Order without liberty is nothing. It is a subsistant existance, void of creativity and joy where living another day becomes paramount and all other aspects of real "life" fade into a memory. That's if one was every able to experience such a "life" before order without liberty.

So, what are the rules of "good society" that allow us to function as a democracy and live lives of order while simultaneously experiencing liberty?

I believe the founding fathers of the United States understood the concept of "good society" and that the laws were simply a reflection of those basic rules that already existed. This is sometimes referred to as "common law" or law that is commonly understood by the people without having it codified or written and by which people operate on a day to day basis with each other.

Peter Landry writes on the concept of common law:

Common law is law that comes from the common people, vers., legislation, which, comes from the "experts."

Common law comes about at the root levels of society: it is not law that is imposed by some authority from on high. The development of common law was "essentially a private affair concerning millions of people throughout dozens of generations and stretching across several centuries." It is a process that is self adjusting and which goes on everyday unnoticed, without great expense to the state and with out fractionalizing society.

The simplicity of the Constitution was based on recognizing this "common law". They simply wrote that which was commonly excepted amongst most, if not all, of the citizens that they were set to govern; govern by their consent based on their consensus.

The root of this common law was not actually written into the Constitution, but in the Declaration of Independence:

Among these unalienable rights are Life, Liberty and the pursuit of Happiness

In other words, it is generally accepted within our "good society" that everyone has the right based on the laws of Nature and/or a Creator to live as they see fit, to be free to do as they can or cannot and to achieve by their own efforts that which they could measure as "happiness".

This was based on the concept of "free will" which was the predominant concept of the Protestant religions that shaped such countries and England, Scotland, Canada, United States and Australia. Even this though does not explain the order that exists within a "good society" because it is understood that not all people will always understand naturally the limit to which they can express this free will without interfering with the "life, liberty and pursuit of happiness" of their brothers and sisters.

This natural limit is expressed in common language as well as the New Testament, "do unto others as you would have done unto you". Or, as Peter Landry further expresses it:

The fact of the matter is that there exists all around us a great body of law which has not ever been (nor could it be) written down in one spot. In a way, its, its more of a process which has a single guiding rule, the "golden rule," a negative rule: "Don't do something to someone that you don't want to have visited on yourself, either directly or through the agency of a government."

The concept of government under this "common law" is best expressed in democracy when the people elect representatives who best "represent" their ideas. These ideas are in effect "common law" or consensus of the people.

What then if all of the people do not agree on what that "common law" is?

It is this issue which is expressed in the method by which laws are created and codified. It is the same method that occurs in good society by the exchange of ideas until the general consensus or understanding is expressed. This then is the "science" of the rule of common law, expressed rather poetically by Chief Justice, Joseph Neilson of the Brooklyn City Court:

"At the sea shore you pick up a pebble, fashioned after a law of nature, in the exact form that best resists pressure, and worn as smooth as glass. It is so perfect that you take it as a keepsake. But could you know its history from the time when a rough fragment of rock fell from the overhanging cliff into the sea, to be taken possession of by the under currents, and dragged from one ocean to another, perhaps around the world, for a hundred years, until in reduced and perfect form it was cast upon the beach as you find it, you would have a fit illustration of what many principles, now in familiar use, have endured, thus tried, tortured and fashioned during the ages.

Still, this does not preclude the possibility of tyranny either by a majority or by one. In a recent movie, The Patriot, the main character played by Mel Gibson expresses these concerns:

"Why should I trade one tyrant 3000 miles away for 3000 tyrants one mile away? An elected legislature can trample a man's rights as easily as a King can."

How then is good society able to function without forcing this "tyranny of the majority" on its other members. In government, this is expressed in the type of representative bodies selected. In society, this concept is excepted as the idea, once again, that each citizen must be leary about perpetrating something against their neighbor for fear of the repercussions.

It is also expressed in the general idea, also a root base of common law in good society that, "I am my brother's keeper." This does not simply equate to caring for our fellow humans and ensuring that they behave as is fit for good society. It does not simply equate to giving our fellow citizens materials, money or place in society so that they can be equal to each other. In democracies and good societies, the concept of being "my brother's keeper" is also understood that it is each citizens responsibility to ensure that their fellow citizens can take advantage of the same basic rights to "life, liberty and the pursuit of happiness".

In good society, these are the only things that are guaranteed and the "pursuit of happiness" is understood that each man or woman is given the same opportunities to "pursue" such happiness. It does not guarantee that they will start out on equal footing materialistically with their neighbors, but regardless of position or birth, they have the equal opportunity to "pursue" and achieve. In the understanding of being "my brother's keeper" it is understood that, in order for my own "life, liberty and pursuit of happiness" to be guaranteed, I must be willing to ensure it and protect it for my brother.

There are, undoubtedly, many other rules of behavior or "common law" that predicate "good society", but it is these basic concepts that allow for the consensual government, democracy, for whole societies.

Others have explored this concept much better than I, (thanks Brian H.)but it is this history and understanding of common law that is lacking in many societies. This is why some countries who attempt to enforce "democracy" from the top down, such as Russia or South Korea or any number of African countries, often fail and instead create even less perfect examples of government that turn into tyrannies or create chaos.

This concept of common law is slowly filtrating through the world with the advent of advanced communications, media, internet and the ability to travel nearly without limits. In some societies, the ideas are still vague and attempts to overlay democracy in countries such as Saudi Arabia where these concepts are not fully understood, internalized nor practiced on a regular basis may not have the full effect that we who wish democracy and freedom to be prevalent throughout the world would like to see in these countries.

Yet, I believe that the concept of "common law" is not completely alien to people who do not share my same ancestoral history. To whit, throughout history, ancient and recent, peoples have managed to live together under all sorts of government rule and lack thereof, without falling into complete chaos. Many ancient tribal societies lived by similar "common laws", unwritten and expressed in the care the tribe gave to each of their members and, prior to fuedal concepts of "noble and common" man, tribal societies found in the United States even practiced these ideas without having first experienced Christianity, Protestant religion or anglo-society. Their members were respected based on their own achievements, their own merits.

This means that common law can and has been practiced in other societies, that the lack of common law based on "anglo" concepts does not make the concept of "good society", "common law" and even "democracy" incapable of existence within other countries and cultures.

What it does require is that these concepts of common law must overcome the individual society's normal desire for "order" at all cost and allow common law to create the rules of society. Without this concept, tyrants rule, freedom is limited. But, without the consent and understanding of what this common law is, without society's consensus to censure behavior outside of what is acceptable in "good society", written laws and the ability to punish crimes against "good society" will not reduce crime against individuals or society.

This is true in existing democracies as well as psuedo-democracies like Russia and others.

We see this slowly coming to life in Iraq as the basis for common law and the censure of the public begins to fall on the criminals. As Iraqis begin to understand their role in "good society" and that this role is beyond their own family, their own tribe or ethnic structure, criminality becomes less acceptable. Crimes against society are censured by shunning and turning them in.

We see this slowly coming to life in Lebanon as the majority of society begins to demand freedom, demands accountability by those that govern to the consensus of the people, in the demand that the criminal acts of assassinating leaders that to not agree with those in power cease and desist.

It may be that advanced communications and interconnectivity of the current global world has allowed these ideas to filtrate into these societies. Surely, this ideology, beyond the tyranny of a few or the tyranny of ideologies, filtrated the Middle East, it gave rise to an opposition that believes it can stop this ideology of "life, liberty and the pursuit of happiness" from spreading.

Aside from the advanced communications and technology, it is no longer simply the outside forces of the Anglo-sphere that is causing this ideology to spread. As whole societies, whole generations, begin to realize this concept within their own societies, tyrannical ideologies cannot stand.

In any society, tyranny can only exist with the consensus of the people. Tyranny, then, can be destroyed by the consensus of the people.

The rule of law does not predicate free societies. The rule of law can be and has been subjugated by tyrannical regimes and turned against the people. It is only in the rule of common law, in the existence of good society which includes the understanding that, as my brothers keeper, it is my job, our job, to insure that the rule of law does not impact my brother's liberty inadversely unless he goes against the common law of good society.

Unless laws are based on the common law of good society, these laws are extrenuous and will most likely result in the limiting of liberty for all in society, not just the few.

"Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it." Lincoln 1859

"In giving freedom to the slave, we assure freedom to the free -- honorable alike in what we give, and what we preserve. We shall nobly save, or meanly lose, the last best, hope of earth." Lincoln 1862

It is this concept which drives current foreign policy in the United States. As global connectivity advances, in order for free societies to truly live by their ideas, the ideas based on common law and the basic concepts of liberty and equality, as they come into extended contact with societies that are not free, they must hold that freedom above all other ideas and desires. To accept that anything else, rule of law and order without freedom, is in anyway equivolent to their society and to void their common cause of "life, liberty and the pursuit of happiness" means that they have also put a limit on their own freedom and voided the concepts of "all men are created equal" and "liberty".

This then must be the call of our generation. The call of all free societies whether they be Anglo, Latin, Slavic, African, Arabic, Kurdish, Asian, from where ever they may reside on this ever shrinking globe, we must find our common voice and in every corner of the globe, declare that the rule of law and order that supports tyrannical regimes is not acceptable and is not equivolent to liberty.

If we fail to do so, we have voided our own ancestoral inheritence of the "common law", the law that by nature demands freedom and liberty for all.

Whenever one man is a slave, whether to ideology, government or by oppression of individuals, we are all slaves and good society founders and falls from existence.


Cynica said...

Welcome back, Kat.

Wow, that was pretty in depth. You nailed it on common law being a universal concept (well except for Saudi Arabia-like countries).

riceburner147 said...

Kat: Sometimes, I have to sit back and wonder who or what gave you the intellect that you so ably display here in this post (have i kissed up enuf !!). No Really, kudos to you. I am a fan a Luther, Zwingli, Calvin, Wilberforce, Pitt and most especially...Geo. Whitfield (cf You have trod upon the sacred ground these men blazed. (And others, John Locke)......I LOVE the writings of these men and the ideals that you (and they) espouse. WOW....and unlike mavenette (no disrespect intended) i do NOT believe that even tho common law it is called....common it is NOT !

Kat said...

Yeah...I'm back. My laptop was saved by a computer genius today.

I think the problem with certain cultures is that "common law" has been supplanted by laws of ideologies which are man made laws usually in rejection of the concept of common law.

Theocracies that believe there is a law above common law that takes precedence and ideologies like Communism, which tends to pick and choose only certain aspects of "common law" and throw out the other, again setting these laws above the common law of "good society".

Whenever common law is circumvented, it is only a short step before tyranny sets in.

Looking around, I see that re-emergence of "common law" is struggling in societies across the globe. Even in Saudi Arabia where people have been exposed to these concepts yet their culture, their religious adherence dictates that common law ideology, like freedom, allows laws to be based on the concepts of men and men are fallible therefore it is easy to reject the idea. Even in those that might be tempted to explore the idea, part of the reluctance is fear.

This fear derives from the fear of consequences and the fear of responsibility. Once common law is accepted and true freedom sets in, it is up to the individual to make decisions and try to decide the best course, consulting amongst members of society to understand and move forward in the best way possible.

This, of course, means that if it fails or exhibits some sort of flaw, it is the responsibility of the person and the people that came to that conclusion and not the the will of God.

If it is the "will of God" then it is so much easier to swallow the ill activity that comes from bad decisions and do nothing else or not try to make it better.

In "good societies" based on "common law", since the ideas of both are evolutionary, common law societies will look at the problem and try to fix it. This isn't just a trait of Anglo Societies, it is certainly present in other modern day societies and was present in many tribal societies as well.

Without this ability, we would not have grand inventions like the internet or pace makers nor have such a greater understanding of the universe.

I have been reading Sandmonkey and Free Iraqi (Ali of the brothers Fahdil from Iraq the Model). It is interesting that Sandmonkey had exposure to Anglo society and takes that with him yet the brothers grew up in practical isolation with only the possibility of input from satellite TV and still they have a highly developed since of what freedom and democracy really means and they are living for it, eating it, breathing it.

Brian H said...

Two points:
The point of the Anglosphere concept re common law is that it's different, much more anti-authoritarian and giving much higher priority to such concepts as contracts.

Second, the "rule of law" observation is actually aimed at contrasting with rule by fiat and individual whim, and implying that rulers are also subject to law, not exempt as they are de facto in all tyrannies.

Is Sharia common law if it's accepted and assumed by much or most of a population? This is where judicial systems and thinkers and legislators have their role to play, in curbing the contradictions and excesses that such tribal customs lead to, and fashioning legislation that is actually conducive to group and individual growth rather than stagnation. Unless stagnation is the goal, of course.

Kat said...

Brian...I have a chance to answer and I hope that you come back to read.

I would submit that Sharia is not the "common law" that I spoke of, even if it is "commonly accepted" amongst a social group.

I believe that there is deep down under ideologies, a common law that most humans practice with each other and that it IS ideologies and laws that are created by them that over take this "common law".

Let me explain: When you meet a new person you have never met before, in most societies there is a common idea on how one is to treat a stranger (at least one who has not come in violence). this is generally with respect and probably kindness until or if the person shows some marked disrespect or even hostility.

I also believe that it is common in most human enclaves to believe that one's word is your bond.

Further, the basis of common law which is not to kill someone in cold blood, not to steal, etc, are commonly found in most societies.

It is the ideological "laws" or, as you point out, laws instuted by tyrants which often overturn this basic concept, but still, I noted even in Iraqi culture, long under the thumb of a madman, that certain "common law" practices still remained at the base of the society.

I think that's where I was splitting the differences.

I understand what people mean when they say "rule of law" it just sounds problematic saying it when any person from any country, including China or other oppressive regimes, could technically say the same thing, but, of course, as you point out, not actually mean it in the same manner that we would apply it.

But, you do make an important distinction. In countries that adhere to the actual definition of "the rule of law" as we find it, leaders are considered citizens too and subject to the same law.

Thank you for sharing those thoughts and making me clarify my own ideas.