The spiritual ideas behind common law
“If the law supposes that,” said Mr Bumble, “the law is a ass, a idiot.” (Charles Dickens, Oliver Twist)
We have occasionally had the same thought as Mr Bumble, but we are now fairly convinced that just laws are a gift from our ancestors, who built them on spiritual ideas. That they did so was partly a measure of their spirituality and partly, their desperation.
To always be looking over your shoulder and wondering if you would be attacked at home or on the road; to have the gnawing fear that a powerful someone might plunder your house and land; to dread that your children would be sold into slavery; to feel sickening fear and anger when extortionists arrived to seize your profits; to be cheated by a partner – for all these and other reasons our ancestors were desperate for just laws and just people to enforce the laws.
The first spiritual idea
Standing under a night sky full of stars and planets, our ancestors felt invisible connections between themselves and the cosmos. They saw beautiful patterns of rational order in the universe and in the natural law that governed the earth. Their objective was to establish human laws that reflected the reason and justice they saw in the universe and in natural law against the ruthless opposition of those who were uninterested in reason or justice.
Their clear and forthright idea was that divine law was rational and that consequently human law should be governed by reason. (Their insights into the mathematical principles governing the universe and earth are described in The General Rule.)
In Anglo-Saxon England, they laid out the court of their elected king to physically and rationally reflect the relationship between the cosmos and mankind. Within the king’s court no sword was to be drawn, no violence committed, and a man's freedom to speak his mind was protected.
The Britons, Celts, and Anglo-Saxons went some way toward controlling crime and injustice and creating peace, but they fell short. It was Aidan, Alfred, Athelstan, Dunstan, Edgar, and men and some women who are now forgotten, who recognized the essential usefulness of the following spiritual ideas. (Spiritual ideas are practical. If they are not practical, they probably are not true.)
The second spiritual idea
Tribal justice – the responsibility of kin for the action of an individual – was still a force in Alfred’s day in the 9th century. It might seem on the face of it like a good idea to make the whole tribe accountable for the actions of one of their members, but as you can guess it made it more difficult to establish accountability as tribes tried to shield members and limit tribal responsibility and it increased animosity and hostility between kin groups. It also made the leaders in control of the group immensely powerful. What was missing was personal responsibility.
Delight in personal responsibility and individual dignity and power was a gift of the Jews and Christ, who taught that individual strength and happiness grow out of personal responsibility. Christ asked men and women to love God and each other. He did not ask a tribe or a family to love. Defending the individual, Christ destroyed the power of the fathers who had power of life or death over their children (as they often have the power of emotional life or death today). Christ told men and women they were children of God. He liberated those who had endured misery at their father’s hands by affirming they had a far greater father who loved each of them and would love them always.
Some Christian cultures have over-emphasized Christ the Judge. Our ancestors did not forget that Christ was a judge, but they remembered He had come to them individually as a friend and an ally.
Third spiritual idea
Following Judaeo-Christian tradition, our ancestors believed that God was just and that God’s justice made sense. The commandments He gave them asked them to love, to refrain from stealing, lying or murder, to treat their parents with respect, to treat their neighbours as they themselves wished to be treated. They could see that these ideas worked. A people that did not live by these teachings was far less happy, safe, and prosperous than a people that did.
This is one reason that the first ‘doom’ or judgement that Alfred the Great ordained with his Danish enemy, Guthrum, “when the English and Danes fully took to peace and friendship” was “they would love one God, and zealously renounce every kind of heathendom”.
Some may read this as heavy Christian conversion. Alfred read it that the Danes would forsake plunder and slaughter, and adopt a common culture. He understood the fourth, counterintuitive spiritual idea.
Fourth spiritual idea
Alfred understood that just laws were necessary but laws were not enough, and would never be enough. The laws a civilized society needs are not written solely in books, but in the hearts of men and women. A country depends both on just law and on men and women who choose to do the right thing because they know it is the right thing to do.
Our ancestors' belief in the responsibility, dignity, power and freedom of the individual person would become part of the inheritance we share.
But just as the laws were not enough, the individual alone was not enough, either.
Sixth spiritual idea
We experience the sixth spiritual idea so deeply and personally that we almost forget how strange it is - in order to find our true selves and be happy, we have to forget ourselves. When we forget ourselves, we can do wonderful things.
In Britain juries, judges, solicitors, barristers, defendants, clergy and kings built the body of common law by forgetting themselves. That may sound unlikely, but the facts are they worked together even when they were in conflict; they took the wisdom of previous generations into account; and at their best they transcended their own prejudices and made the fairness and justice of the law more important than any person.
The practical results of their spiritual ideas include the Charter of Liberties - no one, not even the king, is above the law; jury trials; the jury’s power to overturn unfair statutory laws; presumption of innocence; habeas corpus; the defendant’s right to remain silent; and numerous procedural and fundamental rights that protect the individual from injustice and oppression.
Seventh spiritual idea
These rights preserve our freedom as long as we preserve them.
They did not say much about this. Their actions spoke for them.