Most analysis I read is an effort to illustrate what is wrong with our society and its government. I’m more interested in the ideas and actions necessary to reverse the degeneration and re-establish Rightful Liberty.
In prior essays, I argued a case for recovery of Rightful Liberty through a return to the common-law. In so doing, I explored the demise of Liberty as a consequence of the replacement of common-law by statute, ordinance and regulation.
If my argument was and is valid, one should be able to identify a point in time before which Rightful Liberty prevailed under common-law, and after which Liberty was infringed by transformation of law into its current form of legislative acts.
We must identify the features of the common-law that promoted individual liberty in an age before our liberty was substantively infringed. We must find indicators in common-law action that signify a change from a ‘concern for justice’ to a principle focus on tort.
The title of this essay is a clue to my findings: creation of legal arguments that promote a concept of ‘public duty’ above individual rights; establishment of ‘civic virtues’ as obligations men owe to society.
What exactly are we looking for? We’re looking for a time in American history when the courts performed analysis and dispensed justice using historical jurisprudence “… neither divinely inspired nor created by the positive edicts … but rather reflecting the wisdom of a particular historically situated community, developed over generations.” (1)
We are looking for circumstances when individual property rights were supreme; when the Maxim “sic utere tuo ut alienum non laedas” (so use your own as not to injure another’s property) was the primary measure in legal analysis.
So how far back in time must one travel, and what does one find ?
We can probably all agree that Rightful Liberty was interred in a mausoleum during the reign of FDR. It is also evident that Liberty had been dealt mortal wounds by Theodore Roosevelt and Woodrow Wilson.
Will we find what we seek if we jump back in time prior to the Progressive Era (1890 to 1920)? This period is credited with altering the structure of the Republic.
“Progressivism demanded nothing less than a political solution to the human problem in which the self-evident superiority of science would dispense with the necessity of metaphysics and religion. Consequently, it was the purpose of the state, and its rational bureaucracy, to solve every economic, social, and political problem. It followed that the power of government must be unlimited.” (2)
“Progressivism transformed American politics. … It was a total rejection in theory, and a partial rejection in practice, of the principles and policies on which America had been founded …” (3)
The answer is “no”. Looking back a little farther, the period of Factory Law (1880 to 1910) was responsible for major changes in the law that infringed liberty-of-contract in the name of “workplace safety”.
“Under the law of Master and servant … courts assigned employers (the “masters”) a duty to exercise “due care” in providing safe tools, materials, and co-corkers for their employees (the”servants”). … incremental legislative action created a body of factory laws. … replacing the common-law regime by establishing a state bureau of labor, enumerating statutory safety and health requirements, and creating a staff of factory inspectors.” (4)
We must go farther still, past the previous significant driver of change: Railroad Law (1850 to 1880). Prior to the Civil War, courts in the northern States began to re-define law from its historical focus on private rights in an attempt to establish and mandate public duties that accommodated rail operation.
Expansion of commerce via rail was accompanied by a belief that society must change to embrace technological progress. This may well be the roots of the American progressive movement.
“… the railroads of the 1850s transformed the patterns of social and commercial interactions in two critical dimensions: speed and scale. … The world of commercial interactions was standardized, rationalized, and reshaped in accordance with new forms of industrial production, transport, marketing, and management.” (5)
“Traditional, local conceptions of the public good were inconsistent with a world-view that began with the assumption that long-distance rail traffic was the condition of commercial activity, the route to economic growth, and the measure of human progress.” (6)
“The railroads were recent arrivals, whose rights should have been subordinate to the timeless truths of property usage. … (but) speed was now invoked as the positive good that everyone had a mutual duty to promote, or at least to avoid impeding.” (7)
Railroad law in the northern States was an artificial political construct to accommodate desired technological and economic progress. In the southern States “… adjudication of cases would continue to take as its starting point a comparative evaluation of private property-based rights, … conceiving of economic activities – whether carried out by business corporations, towns, or individuals – as exercises in private interest rather than as instruments bound to the pursuit of public good.” (8)
After the ‘war of northern aggression’, as railroad commerce was expanded across the agricultural south, Reconstruction drove changes from the north into the law of the southern States.
To find an uncorrupted common-law that embraced individual rights one must return to a preindustrial America.
Transformation of the common law seems to pivot about the relative importance of two ancient Maxims of Law, and especially around the definition attributed to the word salus in the second:
“Sic utere tuo ut alienum non laedas”
… So use your own as not to injure another’s property
“Salus populi est suprema lex”
… The safety of the people is the supreme law
These Maxims were historically in harmony and complementary towards one another. Through the introduction of changes initiated by railroad law, the meaning attributed to “salus” was altered and evolved sufficiently to set these Maxims into conflict.
The Latin word salus has many meanings, but multiple sources agree that the primary meaning relates to safety and security. Well-being and welfare are secondary attachments. (9) (10)
The actions of the northern courts, in cases of railroad law, performed the historical equivalent of a Cass Sunstein “nudge” (11) and diverted the legal meaning of “salus” from safety toward well-being and welfare – creating an obligation to a ‘public good’.
“From the good of a set of individuals, salus populi was extended to mean the future prospects of a national people, a corporate entity possessed of a collective will and a collective future that superseded any individuals’s interests.” … the legal function of salus populi also changed. From the definition of the outer limit of private property rights that defined the regulatory authority of local government, salus populi became the starting point for the definition of universal rights and duties.” (12)
“Where earlier analyses had begun with the question, “What obligations did the defendant have toward the plaintiff?” the new scheme would begin with the question, “Has the plaintiff met his duties toward the public at large such that a court should be willing to hear his claims for relief?” (13)
“In the new system, persons who failed to meet their universal duty to accommodate progress would be similarly barred. It was not merely that their claims would be disfavored at trial; the assertion of their interests could not be heard in a court at all.” … This was the analytical move that turned the common law into a language for defining the universal virtues that everyone was required to display at all times.” (14)
This fundamental change in the common-law occurred as a consequence of the ‘Need For Speed’ to serve commerce made possible by railroad transportation. Northern judges and courts envisioned society as a collective and made a conscious choice to expand law through positive action to achieve their concept of ‘progress’.
Technological advancement did not require any change in structure and function of our common-law. Schweber (op cit 7) made good argument that rail operations in the southern States were accommodated within the unmodified common-law.
Rightful Liberty was infringed by the “hurry-sickness” of a determined group of activists who altered the common-law from its proper focus on defense of “individual rights” to accomplish their economic and political objectives:
“… the supremacy of universal duties
to serve the cause of national progress
was a political act.” (15)
To recover Rightful Liberty one must revive the supremacy of individual rights over public duty, restore the Maxim salus poplui to its proper scope, and eliminate the slavery of obligations owed to others in the name of civic virtue.
“Sic utere tuo ut alienum non laedas”
[ So use your own as not to injure another’s property ]
Public Duty and Civic Virtue be damned !
(1) Schweber, Howard “The Creation of American Common Law, 1850-1880” pg 15
(2) Introduction: The Progressive Revolution in Politics and Political Science: Transforming the American Regime (Claremont Institute Series on Statesmanship and Political Philosophy) Paperback – June 30, 2005 by John Marini (Editor, Contributor), Ken Masugi (Editor, Contributor) http://www.amazon.com/Progressive-Revolution-Politics-Political-Science/dp/0742549747#reader_B00F50RWRY
(4) From Common Law to Factory Laws: The Transformation of Workplace Safety Law in Wisconsin before Progressivism, Donald W. Rogers The American Journal of Legal History
Vol. 39, No. 2 (Apr., 1995), pp. 177-213 http://www.jstor.org/discover/10.2307/845900?uid=3739776&uid=2&uid=4&uid=3739256&sid=21104535022897
(5) Schweber, Howard “The Creation of American Common Law, 1850-1880” pgs 30-31
(6) Ibid, pg 61
(7) Ibid, pgs 75-76
(8) Ibid, pgs 168-169
(12) Schweber, Howard “The Creation of American Common Law, 1850-1880” pgs 33-34
(13) Ibid, pg 34
(14) Ibid, pgs 34-35
(15) Ibid, pg 43
Thomas Jefferson died in 1826.
The age of American railroads began in the 1830’s.
Rightful Liberty died with Mr Jefferson.