How Will We Govern Ourselves After We Win ??

scales of justice

Civilizations self-destruct.  Resistance movements prevail.  Proponents of liberty will eventually win after the Statists destroy industry and their fools starve.

Although I’m growing old, I hope to be among the survivors.  I’m optimistic about our long-term future.  I believe I can now see a clear path to restore Rightful Liberty .

Over the past three months I read several extraordinary volumes that helped clarify my understanding of the

  • history of English and American common-law,
  • integration of common-law with the political theory of John Locke,
  • influence of these upon the founding of our country,
  • expansion of police powers with commensurate loss of liberty,
  • subsequent decline into our present state of tyranny, and
  • means to prevent this situation from happening again.

The books I recommend are contemporary and readily available.  Excerpts from these are appended below my commentary.

  1. Common Law & Liberal Theory   – James R Stoner, Jr
  2. Common Law Liberty                       – James R Stoner, Jr
  3. Liberty of Contract                            – David N Mayer

The authors confirmed my suspicion that the rise of Statism and the expansion of police powers in these united States are linked to the replacement of common-law with statutory law.

I make no attempt to generalize my conclusions for other countries and other times.  Clearly tyranny existed in other cultures and eras.

My goal in this particular post is to share excerpts that might encourage readers to pursue common-law as a tool to prevent the re-establishment of tyranny here, once it is deposed.

I see the return to common-law as a way to recover a culture of Liberty that has become almost extinct.

Democrat and Republican collaborators have fulfilled Nikita Khrushchev’s prediction … “our children” (yes, that refers to us) live under a tyranny of naked collectivism (social democracy, communism).

Our transformation from ‘a good people’ to “the Great Society” was accomplished by generational theft and wealth redistribution.  Self reliance as a cultural value has been extinguished.  We are a civilization in collapse; under attack from within and without.

Progressive ideology has corrupted government at every level and metastasized throughout the body of our culture.  Contemporary attempts at Constitutional amendment will only put lipstick on a pig.  We are well past the point where Liberty can be recovered through peaceful political process.

Understanding the common-law and its influence on our Founding provides a path away from our current tyranny of legal coercion.  Common-law is a viable alternative to the legal system of statute, ordinance and regulation that we call law.

I believe this because Common-law does not presume to hold any authority or power over individuals when they conduct their daily business in a peaceful manner.

Common-law provides a means to escape the nightmare of progressivism-collectivism.  Non-voluntary collectivism only works when someone holds power over the actions and property of other people.  And that power comes from legislative enactment of statute, ordinance and regulation.

Think this through by reflecting on three “systems of law” in which man can live:  individual sovereignty, common-law, and statutory law.  [Please recognize I am not speaking here about “systems of government” (monarchy, oligarchy, democracy, etc.)].

Sovereignty is the natural state of man; a condition in which he is free to act and within which he holds full title to all unalienable rights deriving from his existence.

A sovereign is free to act without restriction according to his will.  He is the law.

If he is unwise and disregards the equal sovereignty of other men, he may act until such time that others decide to restrain him by force.

If he is wise, he tempers his will with consideration for the equal rights of others and we live in Rightful Liberty (ref. Jefferson).

Maxims of Common-Law provides a moral framework within which the actions of men may be judged against the injury they cause to others and their property.

Maxims are “truths” based in natural law and reason.  Crimes are defined in terms of injury or damage.  Common-law is documented in the pleas and outcomes of cases at trial.

Penalty and punishment are proportional to the magnitude of the damage inflicted and are consistent with historic precedent.

Common-Law may be applied to actions of men, regardless of whether the men involved have consented to be governed.

Statutory Laws are elements of government enacted by men to control the behavior of other men through penalty of fine, incarceration, or death.

Some statutes and ordinances are merely written versions of existing common-law, and define real crimes against persons and property.

Other statutes, ordinances, and regulations are forms of ‘malum prohibitum’  where certain actions are proscribed and infraction is declared to be crime.

Penalty and punishment bear little relationship to real injury, and are often set according to the perceived importance of the desired behavioral outcome.

Men generally consent to be governed by statutory law, but their consent and consequential obligations are often obtained by fraud and manipulation.

Statutes, ordinances and regulations are legislative constraints enacted to accomplish various objectives of progressive social engineering.

Men who seek liberty via individual sovereignty follow a difficult path.  Authority figures in society, especially those who are entrusted to maintain the peace, believe the sovereign man is a danger to society.

Sovereign man is generally labeled an ‘outlaw’ whether or not he commits a crime.

But sovereign men are, as a group, less dangerous than normal criminals.  While all criminals have committed some form of crime, not all sovereigns are inclined to commit serious crimes in common-law.

At the other end of the legal spectrum, men attempt to achieve liberty via reform of statutory law.  They cloak themselves in the perceived legitimacy of familiar authority and use coercive tactics indistinguishable from those of the criminals they seek to punish.

Those who would restore the constitution are eager to dismiss its’ inability to prevent in the future what it was powerless to prevent in the past.

No legislative jurisdiction (national / state / local) fully respects mans’ unalienable rights to life, liberty and property.  All jurisdictions make ownership conditional and transform rights into privileges.

The state-citizen movement decries the encroachment of national government, yet advocates its own set of laws malum prohibitum, established without personal and unanimous consent.

As a sovereign we may experience liberty for a short time; perhaps a lifetime if we are fortunate.

As a citizen of the legislative domain called the State we will never experience liberty; we will only have a faded facsimile.

Any government that can create criminals at its pleasure, through legislative enactment, executive order, or judicial review is in the tyranny business and has only one goal: control of its subjects.

Dwelling in peace under common-law, we can eliminate all forms of compulsory collectivism.  If all theft is punished as injury or damage under common-law, generational theft and wealth redistribution will not be tolerated.

After the inevitable collapse of our current civil government, we direct our energy into the re-establishment and operation of courts of common-law.  Nothing is required other than the resolve of good men to band together when needed to review cases and deliver punishment for crimes.

We could even begin our preparations ahead of the collapse.  Nothing prevents us from the practice of common-law today.  Our state constitutions almost universally acknowledge its validity.

A culture of liberty will only be restored when each of us, individually, lives our lives as if Rightful Liberty had never disappeared.

Hans Mentha
At peace in the North Carolina woods

What follows below are excerpts from the books I mentioned above.

I believe these establish a case for the adoption of common-law.  They raise an argument against statutory law and the coercive police powers of the legislative domain we call civil government.

I freely admit that I have selected passages that support my proposition.  I encourage you to read the complete texts in order to form your own opinion with regard to liberty and the common-law.


Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism

Some excerpts are paraphrased …

The common-lawyers believed that politics is an activity either within the law or beside law, rather than an activity that creates law.  Assuming this is true, the fundamental question in political theory is: what is law? (pg 28)

Law was seen as the judgment of a living mind, both freer and more responsible than the mandate of an impersonal rule-book.  Law was not the mechanical or bureaucratic force that we experience today. (pg 29)

When confronted with statute, common-lawyers had to address whether judges are bound always to read the legislative mandate precisely as written or whether they are to interpret them in light of a common-law strong enough sometimes to adjudge them void.  (pg 61)

In matters of law, the claim of antiquity serves a a presumption, not a proof, of wisdom: If reason can show the presumption mistaken in a particular case, the law can be revised.  (pg 66)

The obscurity of the origin of common-law is in some respects the secret of its success: It makes the law in its most fundamental points unwritten and thus leaves it always dependent upon reason for its discovery, confirmation, and elaboration. (pg 67)

“A LAW OF NATURE, (Lex Naturalis,) is a Precept, or generall Rule, found out by Reason, by which a man is forbidden to do, that which is destructive of his life, or taketh away the means of preserving the same … The “Fundamental Law of Nature” is to seek Peace, and follow it.” (p 90)

Moral law, though general, is not common in the sense of being anchored in the mores or customs of a community.  Custom, like prudence, is too uncertain a ground for human action … too much like sand …  (pg 91)

“Blameless liberty” is a concept that liberates men from claims that nature provides any standards by which men can hold one another to account.  The inalienability of the right of self-defense … seems rather to testify to the brute fact of individual recalcitrance than to any inherent dignity of human being. (pg 91)

The radical Whigs taught the colonists to see in every exercise of power a possible encroachment upon liberty … They saw about them, with increasing clarity, not merely mistaken, or even evil, policies violating the principles upon which freedom rested, but what appeared to be evidence of nothing less than a deliberate assault launched surreptitiously by plotters against liberty … (pgs 180-181)

This paranoia was validated by statements of Madison, who asserted categorically that “justice is the end of government.  It is the end of civil society.  It has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”  (pg 199)

A reading of the Constitution in comparison to the Articles of Confederation illuminates a sharp break in legal continuity.  The old bonds of perpetual obligation were replaced by a new agreement which was brought into effect by super-majoritarian, not unanimous, consent …  (pg 216)

Consenting to government as a source of authority, we agree whom to fear and thus free ourselves from (random) terror.  A government that holds potential criminals in awe can make most of civil life appear gentle.  (pg 96)

Common Law Liberty: Rethinking American Constitutionalism

Some excerpts are paraphrased …

Common-law emphasizes assent rather than domination, the community rather than the state, moral authority rather than physical power.  (pg 5)

The liberty protected by common-law was achieved through the law, not outside it; it was characteristic of common-law to protect men’s estates or their right to earn a living … it was taken for granted that crimes were moral wrongs, not just behavior deemed undesirable by the social power … (pg 12)

The decision of the colonies to adhere by and large to their common-law tradition – indeed, to make their case for independence by appeal to the ancient rights they had by common-law – makes it plain that, even as they introduced the written constitution to the world, they had no intention of replacing the unwritten law on which their properties were founded and by which their moral and social lives were ordered.  (pg 15)

It is characteristic of common law to determine the applicability of rules in the context of the facts of the instant case, not to seek a single rule or theory to encompass all imaginable cases.  This may offer a clue not only about the meaning of religious liberty but also about civil liberty generally … that it cannot … be understood apart from the question of free will.  (pg 58)

We think of the Constitution as fundamental because it establishes the rules by which laws are made, as well as rules that limit lawmaking.  At the time of the Founding, by contrast, common or unwritten law was the basis of the law in all the colonies, with legislation understood as it supplement or its corrective.  (pg 79)

The provisions of the Bill of Rights were designed to restrain transient majorities from impairing long-recognized political liberties.  (pg 119)

Police powers were premised, at least in part, on protecting people from others’ harmful uses of their property, it could not be invoked to allow legislatures to interfere with legitimate property rights.  (pg 125)

At common-law, the state could sue for public nuisances and individuals could sue for common nuisances, allowing not only satisfaction for harm done but also abatement of the nuisance itself.  (pg 128)

The principle of legislation … lies at the foundation of most enactments of positive law, which define and punish mala prohibita … acts that are not wrong in themselves, or necessarily injurious or punishable as such at common law … for the sake of having a definite, known and authoritative rule which all can understand and obey.  (pg 129)

a gross expansion of police power- from recovery of damage to social control:
We think it is a settled principle, growing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others … All property in the commonwealth, as well that in the interior as that bordering on tide waters, is derived directly or indirectly from the government, and held subject to those general regulations, which are necessary to the common good and general welfare.  (pg 130)

Regarding the unwritten nature of common-law: the things that are unwritten and may be even incapable of being written might yet prove to be, if not always the most urgent, in the long run, the most important things.  (pg 167)

Liberty of Contract: Rediscovering a Lost Constitutional Right

Some excerpts are paraphrased …

The courts’ adherence to traditional limitations on the police power, through their protection of liberty of contract, thwarted the Progressives’ attempt to enact a category of laws that modern scholars call “social legislation.”  (pg 7)

If the purpose of the police power was … “to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of the rights by others,” then it followed that a statute that did not deal with a true conflict in private rights but that simply abridged them, albeit for an asserted public purpose, might be found invalid as an illegitimate exercise of the police power.  (pg 32)

The government’s police power “as understood in the constitutional law of the United States” … “is simply the power of the government to establish provisions for the enforcement of the common as well as civil law maxim, sic utere tuo ut alienum non laedas” – “so use your own so as not to harm that of another.”  (This) applied not only to property but also to liberty: it obliged everyone to use one’s “own” – to use one’s own property, to exercise one’s own liberty – so as not to harm that (the property or the liberty) of another.  (pg 61)

(regarding expansion of police powers by the state) … “no community confines its care of the public welfare to the enforcement of the principles of the common law”: The state … exercises its compulsory powers for the prevention and anticipation of wrong by narrowing common law rights through conventional restraints and positive regulations which are not confined to the prohibition of wrongful acts.  The maxim of this power is that every individual must submit to such restraints in the exercise of his liberty or of his rights of property as may be required to remove or reduce the danger of the abuse of these rights on the part of those who are unskillful, careless, or unscrupulous.  (pg 104)

(W)hen government invades the realm of individual sovereignty described by John Stuart Mill – it loses its legitimacy and becomes an invader rather than a protector of rights … an illegitimate use of the coercive power of the law.  (pg 51)

Rules v LawsRules v Laws

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5 Responses to How Will We Govern Ourselves After We Win ??

  1. profitup10 says:

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  2. What are the legitimate functions, if any, of this thing called “government”?

    • Hans says:

      Good evening, CA

      In my post I have advocated common-law courts to arbitrate disputes between men based on charges of injury or damage to persons or property. Nothing more.

      When I asked in the title “how will we govern ourselves”, I answered it in this minimalist fashion. I did so to focus on the distinction between common-law and statute / police power.

      In my prior post on Rightful Liberty, I challenged the imposition of “government” upon the affairs of men at liberty. I embraced the assertion “Anarchy does not happen because people violate written or positive law. Anarchy only happens when people violate natural law.” – Robert Hart

      Much has been written about “legitimate” or “essential” functions of government … an organizational structure created for the purpose of exercising control over a body politic.

      In the philosophy of A.Rand and other small government advocates, the only proper functions of a government are: the police, to protect you from criminals; the army, to protect you from foreign invaders; and the courts, to protect your property and contracts from breach or fraud by others, to settle disputes by rational rules, according to objective law.

      The description of courts and law in the proceeding paragraph implies a written law in the form of statutes, ordinances and regulations. We’ve seen how well that has served, how it was abused.

      I am currently exploring how to deny my consent to be governed. That means I presently reject all three “legitimate” functions of government and am assessing the inherent risk associated with that position.

      In Liberty

  3. In this citation:

    A sovereign is free to act without restriction according to his will. He is the law.

    If he is unwise and disregards the equal sovereignty of other men, he may act until such time that others decide to restrain him by force.

    …lies a critical truth that usually goes unaddressed: Sovereignty is less a thing possessed than a thing conceded by others. When we speak of sovereignty in the political realm, it’s always dependent upon tolerance of the “sovereign’s” claim by neighboring states. When we speak of it as a synonym for individuals’ rights, it underscores the critical condition associated with every claim of rights: You cannot and will not be allowed the rights you claim unless you also concede them to others.

    Give to every other human being every right that you claim for yourself -- that is my doctrine. — Thomas Paine

  4. To Hans,
    What else can be said except a big HUZZAH!

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