I’ve just read two books to lift the heart above the media’s COVID monomania, albeit it in a bittersweet way. The second was Meadowland: the Private Life of an English Field, by John Lewis-Strempel, a birthday gift from my daughter. It traces the year in the life of a hay-meadow in Herefordshire as observed by its owner, which resonates with me because I own a hay-meadow in Devon.
It’s brilliantly written (though it’s hard to know how the author gets time to do farming), stressing the continuity of the field’s use by wildlife, by human farmers, and indeed its place in the politics and history of the area. To be tied into that rich tapestry by ownership and occupation is, as I’ve found here in Devon, to be grounded in the real world not only in the present, but across time. One is aware that one is holding a precious legacy for the future of both humanity and creation.
That sense of place struck me especially because I had just finished Roger Scruton’s England: an Elegy, which is something of a eulogy to an England that had all but disappeared by 2000, when it was published, and has certainly sunk beneath the azure main in the last year or two.
That same sense of place, past and present, abounds in the book and, indeed, within the English psyche, though often in an unconscious form, which is why we have allowed it to be squandered. Before Brexit, Scruton was a rare voice recognising that leaving the EU had little to do with economics, or even with sovereignty per se, but was about the sense of a majority of ordinary people (as it turned out) of being intimately bound up in the land, the place. The opponents of Brexit, on the other hand, tended to see themselves as above all that, and “citizens of the world.”
That the latter never understood the issue is shown by the ongoing accusations of xenophobia and parochialism, that internationalism leads to peace and order, and “nationalism” only to war, and colonialism, and slavery, and racism, and fascism, and Islamophobia, and indeed all things evil.
Forget all that, and instead consider the matter of the English common law, on which Scruton dwells at length. The key thing he identifies is that, historically, the English from Anglo-Saxon times on saw the law of the land as something that, like the natural world, already existed in the place and among the people. It was something to be discovered by wise judges, not something to be imposed by strong governments. So lawmaking in England was historically a process more like natural science than politics.
So the law would grow by my neighbour and I having some complicated dispute over property rights, or injury, or whatever. We would take it to court, and the judge (aided by a jury when appropriate) would determine what principles of justice applied, and make a decision. This would then become case law, unless overturned by a higher court up to and including the king, and would be cited in subsequent disputes. Note this well – it was individual cases that made law, rather than laws based on abstract principles being imposed on individual cases. In this way the law grew from the common instinct of justice arbitrated by judges who, because of the land-based economy of the country, also emerged from the local situation.
For example, the lowest level – the Justice of the Peace – was from Tudor times an unpaid voluntary official appointed from local landowners, who were also the local leaders. If that sounds despotic, remember that those landowners shared a sense of responsibility towards the local community that depended on them as well as sitting under their authority.
The higher powers, and especially the king, retained that sense of responsibility arising from authority, rather than merely power. They were the final court of appeal under God (as Moses was in the wilderness), had the power to decide legal penalties, and possessed their own particular sphere of jurisdiction. But even the king was appointed subject to the law – the common law. That’s why the Stuart theory of the Divine Right of Kings to Rule was so unpopular, especially in Parliament, that body of men appointed from the local community to represent the local community, and to insist on the preservation of its rights. Those rights, remember, were considered not to be granted by any political power or universal declaration, but to be inherent in the people, and even indeed, in the land itself.
Scruton understates, I think, though he does assume, the role of Christianity in establishing the common law. Common law seems to have had its roots before the Saxons adopted Christianity, which accounts for persisting anomalies like trial by ordeal in the middle ages, and also slavery, which I’ll come to specifically. But since the national psyche came increasingly to be formed by Christianity, the underlying congruity between the law of God and the law of the land came to be a unique assumption of the English system. One could argue that it was a version of the same assumption of a congruence between God’s law and natural law that made Englishmen like Francis Bacon the originators of modern science.
(Aside – Scruton points out that the early prominence of Irishmen like Robert Boyle or Scotsmen like Robert Morison in science does not damage the thesis, given the cultural hegemony of England at that time.)
Slavery is an interesting, and significant, example of the common law approach. Slavery has been an economic given throughout human history, in almost every society. It was the very basis of the Roman economy, so it is not surprising that it persisted in western Christianity despite the New Testament and objections from Christian thinkers like Gregory of Nyssa.
The Saxons had their own independent pagan traditions, enslaving mainly the families of slain enemies or criminals, and their descendants. They also sold the surplus abroad. Such deeply embedded systems must have been as hard to eradicate from their economy as they are from our own international trade in cobalt or Nike trainers, so that by the time of the Norman conquest 10-30% of the population were enslaved.
But William (perhaps for economic reasons, but urged on by his archbishop, the great theologian Anselm), made international slave trading punishable by a fine. A new distaste for slavery had become a characteristic feature of the Norman-French embracing of Christianity, but after the Conquest it seems to have set a new moral tone in conquered England too. By the twelfth century slavery had more or less disappeared from England. Thereafter common law simply ceased to recognise its legitimacy: it was not up for discussion, and disappeared.
It was the international merchant adventurers, a new progressive class in Tudor England, who saw the advantages of an international trade in slaves that had always existed among the Muslim Barbary pirates and in other parts of Europe. Indentured Irish paupers, once out of reach in the colonies, could easily have any rights under English law ignored. Once the trade in African slaves began (started by the Portugese via the port of Lagos) the common law of England had little influence on what happened between Benin and Jamaica. The average person in England would have had no more conception of how their sugar came to them than the casual i-Phone user has of Uyghur Muslim slaves in the Apple supply chain.
Yet when it came to be tested in a British court in 1772, in the case of a slave brought to England who had escaped, Lord Mansfield based his judgement on the common law, even though no relevant statute law existed:
No master was ever allowed here to take a slave by force to be sold abroad because he deserted from his service, or for any other reason whatever.
Though there had been campaigners against the slave trade already, this case brought the issue to public attention. Another William, William Wilberforce, brought it to fruition across the world nine centuries after the Conqueror began it in England. It is doubtful if the long campaign to abolish slavery altogether would have succeeded, had not the mind of the English public in general, which in essence embodied the common law that had outlawed slavery on the land for 500 years, resonated with the call to freedom. The call for the abolition of slavery became a mass movement for the first time in any country in history, and perhaps the common law was the reason.
In other words, it could be said that the force of common law, arising from the people and, metaphorically and conceptually, from the land itself, pressured the vested interests into submission. Not only that, but a Parliament which, although actually occupied in both houses by the privileged classes, had its roots in the “common law of the land,” became the force which not only remedied two centuries of aberration from it, but waged war on slavery across the world, for the first time in human history, through the Royal Navy (manned by common people with a sense of mission).
Even at that time, though, the bureacratization of the law had begun. The process of downgrading common law (from below) with statute law (from above) accelerated, and culminated almost without anyone noticing in the imposition of European law as the arbiter even of British statute law when we joined the EU. That sense of being controlled from above is, arguably, the underlying reason for the common people of England’s strong rejection of the EU (and not so much the people of Scotland). By and large it was those educated and in control who wished to remain – those with more of a sense of international order than a sense of place.
Now, alas, it seems as if this key point has been missed by the government of Britain. In the COVID crisis a small ruling cabal, that has effectively sidelined a nominally representative parliament, appears to have decided that what Britain needed was the replacement of rule from Brussels with rule from the Cabinet Office. Although Boris Johnson has made libertarian noises about “the inalienable right of the English to go to the pub” or “the sheer inhumanity of imposing another lockdown,” he appears to have missed the main point of English law. And that it is that he has no right to impose anything at all, but only (under the common law) to discover the law that is already implicit.
Our problems will persist, and I have no doubt increase, whilst we still follow the European “Roman Law” model that it is for governments to make the rules by which we must live. Politicians need to rediscover the fact that their only real job is to protect the natural boundaries that enable us to live peaceably in the freedom God intended for us.
Just a footnote here for US readers, who may feel I’ve ignored the glories of the US constitution. Indeed the fact that the written constitution spells out freedoms that are only implicit in the common law of England ought to be a distinct advantage. In practice, sadly, we have seen US Supreme Court judges down the years imposing interpretations of the constitution opposite to what its framers intended. Their excuse is that the constitution should be a living thing – but notice that the “new meanings” are imposed from the top down by elites playing games with words, and not from the ground up by universal principles of justice at a local level. And now, sadly, those in power are pouring scorn even on that constitution’s legitimacy.
Still, the US Constitution is a great system of checks and balances. But although unstated, it is clear that it had its roots firmly in the English common law, the “self-evident” system of justice given by God that alone prevented it becoming manipulable as a tool of oppression instead of liberty.
Both books are highly recommended!