The Common Law

Contradictions do not exist. Whenever you are facing a contradiction, check your premises. You will find that one of them is wrong.

                                         – Francisco D’ Anconia (from Atlas Shrugged)

 

Rationality is the key to mankind’s survival. It is the only true advantage that as a species we possess, for no other animal alive is able to conceive of abstract concepts, to plan, or to even be volitionally conscious. Justice is only possible when reason and evidence are applied to disputes.

 

 

As the author infamously begins his treatise, “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” Such an opening line does not imbue any real sense of confidence in the fairness of either its doctrine or its proceedings. Goodness forbid you actually attempt to plead your case based on rules of standards of evidence; if Holmes is indeed correct, then why should the theater of cross-examining witnesses be attempted if “prejudices which share with their fellow-men….have had a good deal more to do with the syllogism in determining the rules by which men should be governed?”

We continue on to discover that, “It is commonly known that the early forms of legal procedure were grounded in vengeance.” Well, at least that’s honestly revealing. As long as we’re aware that what was supposed to be the objective rule of law to protect our liberty and property, as Bastiat said, is instead laid upon the subjective whims of the whomever is pissed off at the time, then everything should be hunky-dowry. Holmes continues by stating that, “My aim and purpose have been to show that the various forms of liability known to modern law spring from the common ground of revenge.” Isn’t that just dandy? Know we now for certain that “common law” is little more than a codified version of the traditions of the Vikings, particularly that of the thing.

It doesn’t end there, for the author continues to state, “The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong. If people would gratify the passion of revenge outside of the law, if the law did not help them, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private retribution.” Ah, now we are starting to get at the heart of the matter. The community’s (really, the collective’s) feelings actually determine whether you are fined or imprisoned. If feelings dictated free market principles, we would all have died of starvation long ago.

To top it all off, Holmes admits, “Again, a malum prohibitum is just as much a crime as a malum in se. If there is any general ground for punishment, it must apply to one case as much as to the other.“ The author couldn’t be more insulting if he tried. Holmes is assuming that whatever is illegal must also be immoral, which I have demonstrated before is certainly not always the case, since the government tries to trick people into believing that fictitious notion for its sole benefit, which usually tends to be more dictatorial control over the lives of its hapless citizens. It is statements like that make my stomach cringe at the notion of establishing a kritarchy as a potential replacement for the American Empire.

The rest of Holmes’ verbose work is essentially a relativistic perspective about justice. He is constantly vacillating between what other judges have thought, and typically failing to come to any sort of rational conclusion. Considering the moral standards Holmes is using, he sounds just like a statist. According to his explanations, judicial case precedent is what determines the common law; if such is the case, then ObamaCare should be valid under common-law since SCOTUS puts it foot down.

If you were to compare and contrast Bastiat and Holmes, they would seem to me to contradict each other. Bastiat seems to be more in accordance with natural justice whereas Holmes comes off as a government apologist. The clear and concise nature of the former seems to directly contradict the verbose and Kafkaesque style of the latter. If I had to choose which legal theory I must side with, the Frenchman gets my vote.

Should any of you decide to experience the wonderfulness of double-think, then by all means read all of Oliver Holmes’ The Common Law. If for no other reason, it should be a fun exploration at just how illogical agents of the State can be when they are put in a position to explain themselves. The measuring stick of Frederic Bastiat seems to me to be much more in accordance with natural justice than all the hyperbole and “legalese” that plagues Holmes’ blubbering treatise.