The Law - In Merrie Olde England

In yesterday's post, I mentioned Bruno Leoni and Friedrich Hayek as the two legal philosophers in modern times who have pointed out that Legislation and Law are entirely different things, and that what Leoni called the "inflated legislation" of our democratic age is the most serious threat to Property and Liberty that we have ever faced.

However, what sustains inflated legislation is that same miseducated "public opinion." Things were not so in an earlier age - and certainly not in the Merrie Olde England of yore. Sudha Shenoy once wrote me that ordinary people in the England of the past always considered Legislation as the King's Instrument - as an interference in their rights - and turned to the "common law" for their protection.

Leoni, in his Freedom and the Law mentions an interesting fact about the Anglo-Saxon tribes. I do not remember the exact Latin words used, but when William, the Norman Conqueror, took over the island in 1066 AD, the ordinary people petitioned him in these terms: "We do not want any changes in the laws of the Anglo-Saxons."

What were these laws of the Anglo-Saxon tribes? Some answers emerge from Bruce Benson's The Enterprise of Law, which includes this vital history. I earnestly recommend this book to all friends of Liberty. I will mention some important features of their lives: First, that the kings of the Anglo-Saxons never "made" Law, and were just warlords. The only laws of the tribespeople were those of Property, Contract and Tort - entirely "private law." Indeed, there was nothing known as "criminal law" at all - and all crimes were treated as torts. Greedy Norman kings changed all this by legislating certain acts as "crimes against the King" so that they could pocket the fines collected.

As for the "common law" - the history books say that it was Henry II who "founded" common law. Yet, this Norman king who restored order in England never actually passed any statutes. All that is mentioned in the books is that he swore to the people that the kingdom would revert to the laws that were in force during the reign of his grandfather, Henry I.

As we look into the later period, after the signing of the Magna Carta, we come across one important work - that of the great English judge, Bracton. I have only read excerpts from this liberally quoted in the books I have managed to get hold of, and what Bracton makes clear is that the genius of the English was their reliance on "customs and usage" - and their strong antipathy to any form of written law. There was very little lex in England, Bracton says of the England of the 13th century. Law was always "found" in England; never "made."

Note that the English people never ever had a written Constitution. Note that their Sovereign still does not "make" any law. With Parliament as Sovereign, there has been a sea change.

To conclude: The most important lesson that I took away from the works of Hernando de Soto is that the rise of the West has nothing to do with any factor other than Law. It is the better "rules of the game" that enabled them to succeed. In this game, the most important rules are those of Property and Contract - without which Capital can never be accumulated. And, as this blog has consistently been pointing out, Capital Accumulation is the Key to Civilization, just as Capital Consumption takes nations and peoples on the opposite road.

Thank about it.