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    Quotables: The Roots of American Order

    April 4, 2012 by Brandy Vencel
    The Roots of American Order
    by Russell Kirk

    [L]ack of interest in the Middle Ages…does not signify that the Americans drew little from medieval civilization. {p. 179}

    From its Norman beginnings, English law had two aspects, and two systems of courts: common law, and equity. {p. 184}

    The common law is founded upon custom and precedent, although upon national custom and usages, rather than upon local. {p. 184}

    [T]he common law is “case law,” or a complex body of legal precedents upon which all judges are supposed to base their present and future decisions: to rule on a present case, they must consult the body of established precedents in earlier analogous cases. Or, to put this more accurately, the common-law judge is expected to hear the arguments of opposing litigants, both of whom will cite precedents favoring his own claim; and the judge is to decide in favor of the claimant whose lawyer has most convincingly demonstrated that precedent stands on his side. {p. 185}

    Rather than “unwritten law,” really, common law may be described as non-codified law. {p. 185}

    The central distinction of the common law…is the rule of stare decisis, “to stand by decided cases”: all judges are supposed to be bound by previous decisions…The purpose of stare decisis is to ensure that evenhanded justice will be administered from one year to another, one decade to another, one century to another; that judges will not be permitted to create laws or to decide cases arbitrarily, or to favor particular persons in particular circumstances. They must abide by the accumulated experience of legal custom, so that the law will be no respecter of persons, and so that people may be able to act in certitude that the law does not alter capriciously. {p. 185}

    American advocates of the common law…generally opposed the first ten amendments, on the ground that the common law did and must prevail in American also, that the common law already extended such protections to citizens, and that to enumerate some civil liberties in the Constitution might endanger civil rights not there specified. {p. 187}

    [C]ommon law is a continuity, opposed to innovation, adjudicating suits at law upon the basis of enduring norms that for a long while have been recognized as just and binding. {p. 188}

    [Common law] was the foundation of good order in England, so that upon it rose the whole fabric of a free society, the model for other free societies. For a body of law to be really enforceable, it must receive the willing assent of the mass of people, living under such a law. Stable government grows out of law, not law out of government. If the political power decrees positive laws without reference to general consent, those laws will be evaded or defied, and respect for law will diminish, so that force must be substituted for justice: precisely that resistance to statutory law occurred in some European countries, over the centuries. {p. 189}

    [Common law’s] high value would not be seriously challenged until early in the nineteenth century, when Jeremy Bentham and his disciples would attempt to overthrow the common law for the sake of codified statutory law, on abstract principles of justice. {p. 191}

    President Madison rejected Bentham’s offer to write a code for the infant United States. {p. 192}

    In the twentieth century, the common law of England, of the United States, and indeed of every country that has adapted English common law to its needs, steadily gives ground before the advance of statutory law. Some legislators scarcely seem aware that the common law still exists, and they succeed in enacting statutes which deal in less satisfactory fashion with subjects already adequately covered by common law. {p. 192}

    What with the influence of Christian teachings and of large economic changes, slavery was extinct: a serf might be bound to the soil, but he was a member of the social community, and of the spiritual community of the Church. {p. 193}

    According to Montesquieu, writing about the middle of the eighteenth century, the only grand change in the art of government which has come about since Aristotle’s day is representative government. {p. 194}

    The fundamental qualification was one of property–possessing a freehold worth at least forty shillings a year in rent, “above all charges.” This measure seems to have been intended to keep the ignorant and disorderly from disturbing elections…Property qualifications for voting passed into the American colonies from the beginning…{p. 199}

    As the end of medieval times approached, England knew more of order and justice and freedom than did any other nation. {p. 199}

    The work of a university is the ordering and integrating of knowledge. {p. 207}

    The very word “university” implies the universal, the general–something more than local and private; the universities’ degrees were recognized as valid throughout Christendom. {p. 207}

    Even the state universities established early in the nineteenth century took “Oxbridge” or the Scottish universities for models, though they would be much altered by emulation of German universities and by utilitarian aims. {p. 210}

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  • Reply Brandy @ Afterthoughts April 4, 2012 at 2:14 pm

    Oh, SCOTUS. Actually: POTUS! I can’t believe his definition of judicial review: judges doing their jobs. Ohmigosh!

    I was thinking about this part just now: “If the political power decrees positive laws without reference to general consent, those laws will be evaded or defied, and respect for law will diminish,” which I thinks coincides with what Cindy said in a passing comment about too much law making anarchists of us all.

    • Reply Go quickly and tell April 4, 2012 at 2:37 pm

      I agree with you, Brandy, that our president is extending his executive powers where they do not belong. And the more liberal justices seem rather power hungry and dont seem to be doing any of us any real service.

      Unfortunately, I still do not agree with Cindy’s comment about anarchy. What more (laws) does is create criminals…. in the sense that now you and I could be *breaking* lots of laws…. we just dont know about them.

      For example, CMS regulations are making criminals out of doctors.

    • Reply Brandy @ Afterthoughts April 4, 2012 at 3:43 pm

      Statutory law is the name of the game in our state. Every year our Dear Leaders pile on more regulation. I don’t consider myself a rebellious person, but I must say that I feel my inner anarchist whenever new laws are announced. I chafe under all the restrictions. We are not even allowed to burn wood without “permission” in the winter.

      It makes me want to build a bonfire.

  • Reply Go quickly and tell April 4, 2012 at 10:23 am

    It’s always interesting to see which quotes folks select.

    I quoted that same one fm pg 192 in the comment section at Cindy’s last week, in reference to all the hullabaloo at SCOTUS.

    Also, I like the one above it (pg 189) where Kirk states ~
    For a body of law to be really enforceable, it must receive the willing assent of the mass of people, living under such a law.

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