Friday, May 15, 2015

Liberty and Personal Law




Charlemagne and his descendants were not able to sustain empire.  There were many physical reasons for this – the difficulty of defending vast reaches, invasions by Vikings, Saracens, and Hungarians, etc.

But the root of the demise was an idea – an idea so strongly held that it overcame the most powerful entity in Western Europe since the fall of Rome.  It was the idea of private law.   

The Carolingians tried to bury this idea; it was not conducive to empire.  In order to sustain empire, the emperor required the consent of his subjects:

…the ruler who devised a scheme of defence should also be capable of sustaining the morale of his men.

The Carolingians had ever larger borders to defend.  They required new and ever-increasing support from the various kings and lords to make this defense effective.  These kings and lords had to want to support the emperor.  But why did their opinion matter?  Couldn’t the emperor just pass a law, force compliance?

A king could only command his subjects to perform those services to which they had already been liable, and a lord could only expect customary services from his vassals.  He had no right to invent new duties, and his subjects or vassals would not perform them, unless they had voluntarily given their consent.

Law by consent, not by compulsion.

A king who wanted to increase taxation, lengthen army-service, or impose additional duties such as the building and garrisoning of fortresses, had therefore to convince his subjects that it was worth their while to perform these services….

It was a philosophy of law that inherently favored decentralization, as opposed to a common and uniform law which is both necessary and conducive to centralization. 

Consequently everything favoured the rulers of small territories as against the rulers of vast empires.

And somehow this is considered…barbaric…uncivilized…medieval?

One lord with a castle, completely garrisoned, and victualled, was worth twenty emperors who spent their time marching and counter marching from the Rhine to the Pyranees or from the Danube to the Scheldt.

This would seem sufficient enough reason to support the concept of private law based on custom; law that was both old and good.  It is as close to a libertarian theory of law actually put into widespread practice as I have found, sustained over such a long period.

Decentralized law led to decentralized power.  Decentralized power led to small feuds instead of grand battles.

Was the system perfect?  No, but how could any system implemented by man be perfect?  But what if it was this system of law subject to further study and learning – instead of the centralizing Roman law that came both before it and after it? 

The system of decentralized law worked because it was accepted – it is a system that people believed was best.  What if it was this system of law that men kept in their hearts? 

11 comments:

  1. One problem with a "modern" education is the proclivity towards eradicating general skepticism. A basic understanding of ancient history and of epistemology and logic ought to be enough to vaccinate minds towards supposed problems and solutions. To wit: I may not know myself with perfect knowledge, therefor I may not know the world with perfect knowledge.

    Marty Armstrong wrote something recently that he thought laws should be automatically voided after 19 years, one generation. Let each generation assess the laws by which they should live. I think that would be a big step forward.

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    1. That scheme is a two-edged sword.

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  2. Your essay may have been about a time long gone, but if we really think about what we are living under presently, government is still by consent. The problem is that everyone is consenting.

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    1. Not everyone - yet a large portion is enough to maintain the system, with this I would agree.

      Law as it was in medieval times was much more robust than presented in this short essay. If you like, begin here:

      http://bionicmosquito.blogspot.com/2012/10/the-law-no-not-that-one.html

      There is little comparable about law as practiced in that time to the theory of law as practiced today.

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    2. love it! a time where logic more often than not won out over emotion.

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    3. Thanks for the reference bionic mosquito - also good reading. Sounds exactly like Common Law. We can't have common law because we live in "this state" and in "this state" we have chosen because of the use of funny money to discard God's law or common law and live under man's law or statutory law. Common Law or God's law can only be obtained when we start using honest weights and measures and stop with the funny money.

      I came across a quotation by Albert Camus which reads:
      "The only way to deal with an unfree world is to become so absolutely free that your very existence is an act of rebellion."

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  3. "everyone is consenting" because dissent brings big troubles. Think about it -- No living soul consented to any of all this.

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  4. I suppose this is where the statement "Ignorance of the Law is no defence" because everybody would know the law because they were few enough but these day when people could break 3 federal laws a day unwittingly and would have to have you own law library with you the ignorance become a dreadful thing to have levelled at you.

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  5. "Law by consent."

    Consensual law is an anti-oxymoron - a consensual law is no law at all but merely a suggestion.

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  6. If there is consent, why is a "law" required?

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    1. It is an interesting combination: one is born into customary law; to be law, it must be old and good law. This, one is stuck with, unless he can demonstrate an older law that overrides the newer, or it is demonstrated that the law is not "good," e.g. slavery.

      Beyond this, for anything more to encumber the individual, he must consent.

      All if this follows the person - even if traveling in another jurisdiction. To be tried for an offense, it must be determined "what is your law?"

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