Wednesday, September 02, 2009

Tree of Law, Tree of Liberty

The following is an outlook paper of The Jacksonian party.

We live our lives with fundamental concepts of liberty and law and they grow up to give us shade, but both have deep roots and wide trunks that make our modern heights of law and liberty possible. As they grow up so close to each other their roots intertwine so that they not only have interactions in the deep past but their branches spread to each other in the present. Their fates, too, are intertwined as they grow. If Liberty grows without restraint it will put shade over the law and man will slowly become lawless and see no restriction upon personal activities. If the Law grows without restraint it shades liberty and we are left with our freedoms withering and we become slaves to our creation which is the Law. The rot of one set of roots goes to the other set, when one gains the other is threatened by shade. When they are in equal measure the keep each other manageable and healthy. When one puts the other in shade they both suffer and we soon find ourselves without liberty or law by measures, and then the hot sun of our Natural Selves burns upon us to dry out our good natures and lower us by measure downwards to more and more barbaric states.

Not all societies are equal: some feed one tree in preference to the other for a time, but soon find the loss of one leading to the loss of the other. Chaos of Natural Law on one side, the Totality of Law on the other and both prove to be hostile to human society and the individuals within them. Our understandings of these concepts of Liberty and Law come from diverse sources: Ancient Greek, Roman, Nordic and English sources. While I have gone over these concepts before, it is worth examining how they grew together in the late Nordic and early Christian era when these different ideas on what government, liberty, law and personal freedom call came into direct and deep contact with each other so that Church based teachings needed to reconcile themselves with ones derived from multiple sources and each of these sources had its own view on how the basics of society were to be worked out. Bracton on the Laws and Customs of England has a home page at the Harvard Law School Library where the work attributed to Henry of Bratton is available for reading and it comes from that era written in the 1220-1230 timeframe with additions around 1250. Even with just a partial work to peruse, we get the strong outlines of much of our views on law and liberty from it. Within the first page from the site we come to a passage that would confound moderns, and yet was perfectly acceptable as a way to make law within society, and still is to this day:

[010] Though in almost all lands use is made of the leges and the jus scriptum, England
[011] alone uses unwritten law and custom. There law derives from nothing written [but]
[012] from what usage has approved.
4 Nevertheless, 5it will not be absurd to call English
[013] laws leges, though they are unwritten, since whatever has been rightly decided and
[014] approved with the counsel and consent of the magnates and the general agreement
[015] of the res publica,
6 the authority of the king or prince having first been added
[016] thereto,
7 has the force of law.8 9England has as well many local customs, varying
[017] from place to place, for the English have many things by custom which they do
[018] not have by law, as in the various counties, cities, boroughs and vills, where it will
[019] always be necessary to learn what the custom of the place is and how those who
[020] allege it use it.

England used unwritten law to rule itself, unlike many other lands that used scripted law, written law, but had a tradition of common findings of the law to guide it. From this comes the Common Law which is variable as to what is covered by jurisdiction but regularized by judicial findings. To those used to the written law, as we are in America, this is passed down to us via the federalism concept in which States are sovereign entities within the Nation able to have their own laws, and within States are counties, cities and municipal regions that have their own variations of the law. We put our laws in writing to regularize them, but that also sets them on a static basis: as the public changes over time the laws tend to remain the same as the bother of actually changing them forms an innate resistance to changing them. As in physics so it is in the law: a law at rest tends to remain at rest unless acted upon by an outside force which is our system while the English one described has the law in motion tending to remain in motion and guided by the written findings of judges. That writing down of judicial opinions is also handed down to us from this era, although it is interesting to note that the English did not apply this to Admiralty Law until the 19th century. That jurisdiction was highly variable up to that point and it only took prominence in Britain once it was understood how much of the Nation's wealth rested upon regularized trade relations. In the US our understanding is that trade was a main source of income for the Nation and the Admiralty jurisdiction within the civil law was started from the very beginning with the Constitution.

In a single paragraph the outlines of federalism being multiple local law domains under a single National domain, precedence in decisions via recording them so that laws are regularized when they are similar across multiple domains, the law being made by public agreement and usage that is common in an area (as well as penalties), and the procedure of building up common usage via precedence along with sovereign agreement which then makes up a wider law for all in a land. If that sounds remarkably familiar to the view of our Founders, it is because that strong and deep source of society remains viable over time.

As a Judge and former Judge, Bratton spends much of his work going over the differences between types of law, jurisdictions, and jurisprudence. Most particularly are such things as equity under the law and how one is to judge under the law. In this public law is seen as that which is for the common welfare, and deals with religion, priests and public officers. The reason for the religious aspect is that public sins need to have pardon, and such sinners are to have their moral health put in line with the public morality via doing penance for such sins. The State is the one to administer the law as it is in the public interest that magistrates appointed by the State, that organ which is of society, look after the common welfare. Due to the era that Bratton lived in, the State is a pre-existing institution and pre-dates the full Christianization of England, and has been running common law for the common welfare for some centuries. Public morality and the common welfare need to be reconciled and it is the job of a those enacting jurisprudence to ensure that all parts of a judgment do just that.

The second area of the law is private law, or that which pertains to the welfare of individuals, and is secondary to the law of the public. Private law is not, of necessity, local law, but those sets of laws which effect the individual that arise from other sources than the State, itself. These laws are divided into three distinct types: natural law, law of nations and civil law. To modern eyes this is one of those times that what one knows may not, immediately, seem to be in accord with what is being put forth as we typically have daily concerns only over the civil law and not much concern with either nature nor nations in our daily lives. When reading onwards, however, things become most clear:

What natural law is.

[019] 21Natural law is defined in many ways. It may first be said to denote a certain
[020] instinctive impulse arising out of animate nature by which individual living things
[021] are led to act in certain ways. Hence it is thus defined: Natural law is that which
[022] nature, that is, God himself, taught all living things. The word ‘quod’ is then in
[023] the accusative case and the word ‘natura’ in the nominative. On the other hand,
[024] it may be said that the word ‘quod’ is in the nominative case, so that the definition
[025] will be this: Natural law is that taught all living things by nature, that is, by
[026] natural instinct. The word ‘natura’ will then be in the ablative case.
22 This is what
[027] is meant when we say that our first instinctive impulses are not under our control,
[028] but our second impulses are. That is why, if a matter proceeds only as far as simple
[029] sensual pleasure, not beyond, only a venial sin is committed. But if it proceeds
[030] farther, to the contriving of something, as where one puts into practice what he
[031] has shamefully thought, it will then be called a third impulse and a mortal sin is
[032] committed.
23 And note that for the reason that justice is will, taking into account
[033] rational beings only, natural law is impulse, regard being had to

[001] all creatures, rational and irrational. There are some who say that neither will nor
[002] impulse may be called jus, jus naturale or jus gentium, for they exist in [the realm of]
[003] fact; will or impulse are the means by which natural law or justice disclose or manifest
[004] their effect, for virtues and jura exist in the soul.
24 This perhaps is said more clearly,
[005] that natural law is a certain due which nature allows to each man. Natural law is also
[006] said to be the most equitable law, since it is said that erring minors are to be restored
[007] in accordance with [natural] equity.

Natural Law is that which derives from our properties derived from being of nature. As natural beings we gain certain abilities and our liberty, yet they are the complete set of things provided by nature. When one has a reaction to anything, nature is the first to provide it by instinct. The simple acting out of one's natural instincts can cause harm, which is why we tend to classify actions based on them being instinctive of having been thought through. Reaction to the world is instinctive, but if it is a wrongly felt reaction, one that is negative to the self, then taking that thought up compounds that problem, then acting out on it demonstrates a chain of actions that start from base motivation, are held as thoughts and then, by third hand, acted upon.

Between base thought and action is the activity we know as Reason. Many that we class as 'habitual criminals' may have no utilization of reason between thought and action, thusly what they do comes from base motivation and primitive impulses. When one plans out an action to ill-ends, then the ability to reason is put to ill uses so as to gain those ends and becomes a higher crime. One may find a lover cheating on them and in the heat of passion hurt or even kill that third individual, and we know that as a simple 'crime of passion'. Yet if one finds out and then sets up an elaborate plot to eliminate that third individual, then you have put reason to ill ends no matter what the motivation, and your ability to reason and seek other ends is what makes that crime greater: you had the chance to seek other ends than that driven by base motivation.

Thus when judged by other realms of law, natural law can be seen as having an impact based on our having come from the natural world. The civil law, after that, is one we know much better in our modern times, as it has grown the largest and, indeed, overgrown the thought space of other realms of law as we have so much of it:

What the civil law is.

[009] 26Civil law,27 which may be called customary law, has several meanings. It may
[010] be taken to mean the statute law of a particular city. Or for that kind of law which
[011] is not praetorian; it sometimes detracts from or supplements natural law or the
[012] jus gentium, for law different from that outside sometimes prevails in cities by
[013] force of custom approved by those who use it, since such custom ought to be
[014] observed as law.
3031Civil law may also be called all the law used in a state [or the
[015] like], whether it is natural law, civil law or the jus gentium.

Statutory law, written law, and customary law are within the realms of the civil law. That said, as England has no written law in that era, customary law rises to the level of Statutory and written law, as the unwritten laws are those of the public residing within the State and the shift from common law as customary to statutory or written is a lengthy process. The presiding documents of this era are the Magna Carta put in place in 1215, and the Charter of Liberties put in place in 1100. As Bratton writes in the era when the Magna Carta was still being amended and worked over, his stresses upon using past rulings to guide present ones and having to reconcile the civil law that is customary with the written law are of prime importance. After King John I, the need for England to have regularized judicial findings becomes a paramount concern, as well as ensuring that no man, not even the King, is above the law. The State had set certain provisions and limitations on State power and those needed to be enacted through the local level, which would be done by magistrates and other bodies of local governments that would need to have any local problems addressed via the pathways of customary and other statutory law.

The Magna Carta, itself, is a positive rights document, which gives great leeway on rights to the State and carves out those parts within the law that are to be ensured to the common man and serve as areas the State may not trespass. That formulation was given substance in the US under The Bill of Rights which sets forth that no matter what happens, certain areas of the law are set aside from the State and then, all those areas not given to the State explicitly, are reserved to the States (plural) and the people. The Bill of Rights transforms a positive rights concept, in which the State has all power, to a negative rights concept in which the power resides in the people and their sovereign States in the Union. Yet we would not have the positive assertion of definite areas delimited from the State without the Magna Carta, and working through how these limits on the State are to be played out become an essential part of how we view our civil rights under civil law.

If natural law has a bit of a stumbling block for understanding, then the law of nations will seem like a brick wall: we no longer even think in these terms, and yet they are as vital to us, today, as they were in the 13th century:

What the jus gentium is.

[017] 33The jus gentium is the law which men of all nations use, which falls short of
[018] natural law since that is common to all animate things born on the earth in the
[019] sea or in the air. From it comes the union of man and woman, entered into by the
[020] mutual consent of both, which is called marriage. Mere physical union is [in the
[021] realm] of fact and cannot properly be called jus since it is corporeal and may be
[022] seen;
34 all jura are incorporeal and cannot be seen. From that same law there
[023] also
35 comes the procreation and rearing of children. The jus gentium is common
[024] to men alone, as religion observed toward God, the duty of submission to parents
[025] and country, or the right to repel violence and injuria. For it is by virtue of this
[026] law that whatever a man does in defence of his own person he is held to do lawfully;
[027] since nature makes us all in a sense akin to one another it follows that for one to
[028] attack another is forbidden.

What manumission is.

[030] 37Manumissions also come from the jus gentium. Manumission is the giving of
[031] liberty, that is, the revelation of liberty, according to some, for liberty, which
[032] proceeds from the law of

[001] nature, cannot be taken away by the jus gentium but only obscured by it,38 for
[002] natural rights are immutable. But say that he who manumits does properly give
[003] liberty, though he does not give his own but another's, for one may give what he
[004] does not have, as is apparent in the case of a creditor, who [may alienate a pledge
though the thing is not his,39 and in that of one who] constitutes a usufruct in his
[006] property.
40 For natural rights are said to be immutable because they cannot be
[007] abrogated or taken away completely, though they may be restricted or diminished
[008] in kind
41 or in part. 42It was by virtue of this jus gentium that wars were introduced
[009] (that is, when declared
43 by the prince for the defence of his country44 or to repel
[010] an attack) and nations separated, kingdoms established and rights of ownership
[011] distinguished. Individual ownership was not effected de novo by the jus gentium but
[012] existed of old, for in the Old Testament things were already mine and thine, theft
[013] was prohibited
45 and it was decreed that one not retain his servant's wages.46 By
[014] the jus gentium boundaries were set to holdings, buildings erected next to one
[015] another, from which cities, boroughs and vills were formed.
47 And generally, the
[016] jus gentium is the source of all contracts
48 and of many other things. What long
[017] custom is will be explained below.

The law of nations is one of the prime concepts necessary to understand what our place in life is with regards to other men and all of mankind. It is not the natural law, as it is not directly derived from it but supported by our natural instincts to form society and communities. The most basic of all communities is that of the family, and serves as the founding basis for this other realm of law. From that, the law of nations is a creation of man's society and a thing particular to all mankind and distinct from natural law because it is man who creates it. Natural law gives the right to fight, the right to defend oneself and the right to wage war. The law of nations gives you the liberty to defend others, defend your family and defend your country made up of all members of your society within that State. Thus the same liberty that is used to defend your spouse and children is the exact same liberty to defend your country and there is no scaling between the two: the right and obligation to use liberty for their defense is the same regardless of where on that scale you are. Attacks upon any individual who utilizes the jus gentium, who acknowledges their place amongst the order of men and Nations, are to be defended against. It is always lawful to defend the law abiding individual against attack from those who take the law into their own hands.

These natural liberties when exercised in a just way are self-supporting and one's rights are inalienable from that liberty. When our societies create individual States and then Nations to exercise those liberties that individuals grant to society for their own defense, mankind creates a new realm of law that is not wholly based on nature and is not the civil law, either. In the recognition of these different societies we entrust those liberties that we are born with to the society we live in which creates organs called government that represent a State and then a Nation to interact with other Nation States that represent other peoples and other societies. In creating these things, in having close proximity to each other in places that respect civil law so that mankind can create larger units called villages, towns and cities, we also acknowledge that other Nation States do this. As each of these areas has its own law, the law of nations starts out as customary law: unwritten law particular to each Nation State.

Over the next 550 years this concept, which starts with the ancients, will expand upon this common base and gain a body of work that better describes the law of nations, until a formal and wide ranging conception of The Law of Nations is written in depth and detail. At this point in time the first regularization of any international law is still a century away and that would happen in The Black Book of the Admiralty. For all that the law of nations, as a concept, is customary law, this formulation of Nation States has proven to be invariant no matter what society or time period is being described in history. The earliest City States acted very much under the influence of this customary law, and reading about embassies, treaties, expect safe passage, and so on, from ancient works and then going to Meso-America and finding similar descriptions of how their States acted towards each other, be they Incan, Mayan, Aztec or Iroquois in North America, then examining City States and Empires of Africa or Asia then reveals a deep system that mankind creates that we call the law of nations.

Many animals have the instinct to protect family or even larger extended groups of kin, but even if there is reason present that has not extended to a recognition that all those who are of that species has that capability and extends this concept to all members of the species who follow regularized, lawful practices. While local groups are recognized amongst animals as having customary practices and the right of defense of the group, the ability to extend that across multiple groups has not been witnessed to date save in mankind. That leap from family and local genetically affiliated population to the larger society is something that is unique to mankind, as well as the universal understanding of that right that arises from our liberty. Our liberty is more than mere civil liberty, but liberty under the law of nations and is understood that both are necessary to have society safeguarded.

Thus the law of nations is voluntary law and customary law. And as with the English unwritten law, you are still beholden to it by that custom: ignorance of the law is no excuse to break it. As with customary law actions are accountable to the law of nations, be they from individuals or those in charge of the Nation State. While customary law within a State can vary by locale, the law of nations will also vary by locale, save that the organizing units are Nation States. Unlike local customary law within a State, Nation States are accountable to no higher power than other Nations, and Nations themselves accountable to each other for their practices. While God has domain over all things, the law of nations is man created law for the derived Nation State and there is no appeal to any higher power than other Nations for the activities of individuals and Nations within the law of nations system. If you (be it individual or Nation) decide to not acknowledge such customary law, you are liable for the consequences of your actions.

As Bratton goes on to start clarifying aspects of the law, itself, he writes a very succinct view of the law that goes beyond his immediate point and is more generalized due to the formulation of that point, and that point is discussing what freedom is:

What freedom is.

[024] 15‘Freedom is the natural power of every man to do what he pleases, unless
[025] forbidden by law or force.’ But if so, it then appears that bondsmen are free, for
[026] they have free power [to act] unless forbidden by force or law. But freedom is
[027] defined by that law by which it is created, by virtue of which they are called free.
[028] For though bondsmen may be made free, since17 with respect to the jus gentium they
[029] are bond,

[001] they are free with respect to the jus naturale,1 thus free and bond, but from different
[002] points of view, and so wholly free [or] wholly bond, not in part one and part the other,
[003] as was said above. And in this connexion the civil law or the jus gentium detracts
[004] from natural law.

Natural Law, that which gives you all your rights and liberties, is restricted by your acquiescence to the law or by force. Natural liberty is never taken from you, it is inalienable from your person which is a natural being residing in this natural universe. When you agree to the law, you restrict your natural liberty and rights with regards to others and that is a voluntary association. Both civil law and the law of nations restricts actions and put accountability for actions into place that would not be accountable under natural law, save for immediate ones. One as their entire liberty and freedom under nature, but those are restricted by the voluntary, customary laws that are the civil law and the law of nations.

In the centuries that would follow this concept of being in bondage or enslaved would come to loggerheads with our understanding of all men being born with equal liberty and freedom. The idea that God gives universal freedom and liberty and that it is man who restricts it comes to be a major turning point for our modern understanding of civil liberties. And yet, even with civil liberties there is the law of nations to contend with and the obligations that individuals get to the customary law between Nation States.

What this system describes is a derivation of law into multiple layers starting from a base layer that is natural law. Natural Law is that law which is universal to being a part of the natural universe and it exists everywhere there is nature. This is the law of beasts and the natural world as it exists and we, as beings of nature, partake of natural law and derive all our liberty from it. Even when rights and liberties are granted from other law sources, those sources have the ability to do that only by being part of the natural world and they restrict or allow the use of those natural liberties and rights, but do not create them.

The very next layer is that closest to nature and comes from our ability to form the most basic of social units, which is the family. This layer is the law of nations, surprisingly enough, because it spans in an equal manner from families to the largest grouping of society called Nations. Our ability to recognize that other societies that form equal units called Nations is already in place by the fact that we form societies. Freedom, when juxtaposed against the areas of the law have restriction after natural law: the law of nations which restricts us as we form families and band together with other families to form societies and requires that individuals protect that society that supports them, private law which delimits how we may act in society and has accountability for our actions built into it which forms the State, and public law which cross all geography of society so that there are some common items held by all the members of a society that are publicly adhered to in support of the Nation.

In the last part of the 19th century and throughout the 20th century there has been a move away from the civil basis of the law of nations and to the written civil law and public law. While this does regularize some social norms, it also puts them in place as rigid structures that are unable to quickly adapt to changes in society due to that scriptum. To compound that problem many laws have been established that move the efforts of society to govern itself on a private basis out of the private realm and into the public realm. If we do not enjoy the set and local dictates of mere local, municipal and State government, then the movement of things given to individuals and society moved into the public realm cause untold problems due to the nature of the public realm.

That nature is the one that must put all forces into play from the law of nature up to the Sovereign Nation State and find some agreement amongst them all to form public policy and public law. In doing that, those things that are most flexible at the private realm of the law of nations becomes stultified and overbearing at the Nation State level. The modern US bureaucracy has seen the total number of regulations climb steeply after 1972 to the point where more than two-thirds and approaching three-quarters of ALL regulations have been passed since then. Something that was meant to 'stabilize' the dollar, the creation of the Federal Reserve Board, has done just the opposite, and the contrast between the steady rise in power of the dollar before 1912 to the steady decline of it afterwards is one that happens only when the Nation State seeks to control a vital aspect of the economy.

What happens with this is the shift in the power relationship moves from the multitude of hands vested in the people ever upwards to fewer and fewer hands that seek to reverse our understanding of liberty and freedom to one of the Sovereign 'granting' and 'supporting' certain 'new rights' that then cost the people, as a whole, in terms of liberty, freedom and even plain old cash money. When moving from a system of unwritten laws guided by local common consent and past practice to written script with law enforcement to uphold it, we move from the approval or disapproval of society that has local law force to one that vests the law in the few hands of the enforcers and those who create such laws. Yet that was always kept in reserve for crimes against persons or the Nation State: robbery, murder, rape, corruption of the young, and treason. Many lesser crimes of the local sort would include such things as adultery, fornication or even imbibing of alcohol, and would carry lesser punishments done at a local level. The movement of each of these upwards creates some commonality to the law and its practice, but becomes a jumping off point for those put into the position of writing such laws having more power in those realms over time. By placing more power in fewer hands, liberty suffers, but to place none in fewer hands we have no protection for liberty.

Thus the intertwining of the two starts off as a loose and generally informal association and unlike the trunks of great trees we find that these start out at bushes with many branches. What can be a healthy relationship between them then changes as the tree of liberty loses branches at the lowest level and must grow wider and straighter, while the tree of the law turns into something more akin to kudzu which rarely grows straight but can grow more powerful at the expense of liberty, itself. If liberty had more shade to guard its lower reaches and deprive the kudzu of life, it would grow farther from liberty and the great tree, itself, would move to its former form of greatly interacting bush able to thwart its counterpart by having no formality to its shape and size. By fostering the kudzu of written law, however, we put that part of liberty which remains in grave danger as we seek to regularize every aspect of man... until liberty dies and all we are left with is the kudzu of the law depriving all beneath it of light and life in favor of itself.

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