Deus Ex Machina

"This is the generation of the great LEVIATHAN, or rather, to speak more reverently of that mortal god, to which we own under the immortal God, our peace and defense." -Thomas Hobbes: Leviathan

Common Law Contra Constitutionalism on Defending Liberty

I’ve been thinking lately about the basis of a commonwealth. After reading the Opium War book I pretty much lost my belief in macho macro nation-states.

Opium Wars 28

I still like things like rule of law and stuff and in that sense I am still quite “Legalist” although maybe no so much the forced reunification of China under a central unmanageable bureaucracy.

The English Common Law System and American Constitutionalism

Lately I’ve been reading up on the English common law system and that got me thinking. How are the English liberties secured and the rule of law maintained? The fact of the matter is that the English common law system secures liberties by making politics as particular and local as possible without an overarching deductive system adjudicated by a central administration or judiciary. That’s how the common law works whereby the law is discovered by a process of particular judgements by local judges as opposed to some overarching system of laws.1


In this ironic sense the American Constitutionalism contains within itself a tension. It attempts to secure liberties via a set of universal legal principles enshrined and adjudicated by a central legal document and federal court. The problems are obvious at once. Any document of sufficient generality and abstraction inevitably becomes vacuous and vague, and when it is general and vague, and when there is only one central supreme court who alone can determine its meaning, then what you have is effectively a new central authority. I think this can be easily illustrated with the concept of freedom of speech.


Example: Freedom of Speech

Suppose we assume that the right to free speech is the right to speech freed from government control or regulation. Thus, the principle of freedom of speech on this idea is to check the government’s power over speech and to stop them from, erm, stopping you from speaking certain things.

Suppose we accept that, even within the framework of freedom of speech, there are some speech which ought not to be free, e.g. libel, slander, defamation, “giving aid and comfort to the enemy”, etc. Thus, there are some things which we ought to be free to say, and there are some things which we ought not to be free to say.

The question is, who decides when is a speech free and when it is not free? The answer inevitably has to be: The Supreme Court or more specifically, the supreme courts on the basis of legislation. The contradiction should be obvious by now. How could the principle of free speech, as a check upon central authority regulation on speech, work if it is the very central authority who decides which speech is free and which is not? The principle is pretty abstract, it isn’t obvious in which particular cases which speech should be free and which is not. The principle needs to be fleshed out by concrete legislation and court rulings. But if in the concrete it is ultimately the central authority who decides which speech is free and which is not, then what possible value could there be in the “right to free speech” as a check on that very same authority? Furthermore the authority in question is a pretty much unaccountable set of unelected judges.2


This sort of argument can be pretty much applied to any right guaranteed by the constitution. The constitution as a national document must necessarily enunciate principles at a certain level of generality and abstraction. When so enunciated the responsibility for deciding its meaning falls upon the central courts. They would then be free to decide what it means according to some overarching universalist deductive system. In short, Constitutionalism, far from being a protector of liberty, ironically grants a lot of power to central courts to rule and decide on its meaning.

The tensions within the American legal system is beginning to manifest itself. This is why I think the English “messy” common law system consisting of a thousand and one particular documents and localised decisions, is still a better defender of liberty compared to the American centralised constitutional arrangement.


1Roger Scruton compares the English Common Law system against that of the Continental European Civil Law system in his England: En Elegy:

The common law rests on the doctrine of stare decisis — that particular decisions should stand unaltered. These decisions have the status of ‘precedents’, which must be followed wherever they apply. In general, the English courts have adopted the principle that decisions of higher courts are binding on the courts beneath them (otherwise, what could be meant by distinguishing ‘higher’ from ‘lower’ courts?). This principle naturally poses problems for the highest court of all, the House of Lords, which in 1966 arrived at the typically English conclusion that it could disregard its own decisions, so that no judgement, in the end, is eternally binding on anyone, since the judgement of any court may be overruled by the House of Lords. To discover whether a precedent applies, a judge must ascertain its ratio decidendi — the reason for the decision. This may not have been explicitly stated by the original court, but merely implied in the reasoning of the judge. Those brought up on Roman law or the code napoléon find this amazing, since they see law as at deductive system, beginning from first principles, and working downwards to the particular case. But we need only recall the close connection between common law and moral judgement to see that it is not amazing at all. The important thing in moral life is to do what is right, not to expound the principle which makes it so; and often the principle eludes us, even when the rightness of the act is clear. Readers of Jane Austen will not need to be reminded of this. Like morality, the common law builds upwards from the particular to the general. The abstract rigour of civilian (i.e. Roman law) systems is no guarantee of their justice. For justice is done in the particular case, and until tried in the courts abstract principles have no more authority than the people who declare them.

This is particularly obvious if we attend to civil law – the area in which the English legal system has excelled. When one person has a complaint against his neighbour and applies to the judgement of a court, he is seeking a remedy. The facts of the case may never have been considered before, and the judge may have no explicit rule of law, no precedent and no Act of Parliament to guide him. But still there is a difference, the common law says, between a right and a wrong decision. Thus it was, for example, in the leading case of Rylands v. Fletcher (1865) in the law of tort. The defendant was a mill-owner who had constructed a reservoir on his land. The water burst through old mine shafts into the mines of the plaintiff, which were thereby flooded and put out of use. No similar case had come before the courts, yet clearly there were questions of right and liability to be decided. The Court of Exchequer Chamber (one of the antique courts which then existed, signalling its history in an exquisite name) gave judgement in the following words of Mr justice Blackburn: ‘We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.’ This rule, the judge added, ‘seems on principle just’.

Until Rylands v. Fletcher, however, no such rule had ever been formulated. The facts of the case arose in the context of new industrial activities, generating conflicts that had not been tried at law. Therefore, did Mr Justice Blackburn merely invent the rule? If he did, then Mr Fletcher was penalised by an act of retroactive legislation — in other words, by the invention of a law of which he could have had no prior knowledge. Surely that would be a flagrant injustice. But notice the judge’s words: ‘We think that the true rule of law is . . .’ In other words, in Blackburn’s own eyes, he was not inventing the rule, but discovering it. And such was the opinion of the House of Lords, in upholding his judgement. The common law was based on the assumption that there is a law governing each judiciable conflict, and that its right application will provide a remedy to the person who is wronged, and a penalty to the person who has wronged him. The business of the judge is to discover that law and apply it in the given case.

2There is an interesting article about Dicey’s doctrine of “Parliamentary Sovereignty” which pretty much argues for something similar:

There are two aspects to Dicey’s doctrine:

  • that Parliament can make any law whatever, and
  • that no one (including the courts) can override or set aside Parliament’s law.

When we say Parliament can make any law whatever, we really mean it. It’s a radical idea, that many law students find hard to believe at first.

Acts of Parliament can breach international law, for instance. The case students usually learn as authority for this is Mortensen v Peters, in which a Danish ship’s captain found international law did not help him in a criminal court. Contemporary proof is the fact that Parliament doesn’t let prisoners vote even though this breaches Britiain’s international human rights law obligations. Parliament can ultimately lay down the law regardless of human rights; and (something that comes as a surprise to many people) the Human Rights Act 1998 allows it do so.

Nor is Parliament’s legislative competence limited in time. It can legislate retroactively, changing the legal consequences of past actions. The War Damage Act 1965 is the Act usually cited as proof, but the War Crimes Act 1991makes the point just as well.


All of this is in contrast to legislatures whose power is legally constrained, usually by a written constitution. In the United States, for instance, free speech is famously protected by the First Amendment to the Constitution, which says

“Congress shall make no law … abridging the freedom of speech, or of the press …”

Those first five words show us that Congress is not sovereign like Parliament. The US Constitution is a higher law, limiting its legislative competence. It follows that American judges review the constitutionality of Congress’s laws, and set them aside if they are in breach—something Dicey’s second principle tells us can’t happen in our own courts.


I’m a great fan of Parliamentary sovereignty, because of its democratic strength: it puts all constitutional power in our hands, unlike written constitutions that pay lip service to a mythical “People” but in truth empower judges.

The real danger to Parliamentary sovereignty isn’t Europe, but the gradual development of a hostile domestic judicial culture aiming to subject it to principles of higher “legality”.


These were something a friend on Facebook wrote which inspired these reflections:

Now that it’s obvious that D O N A L D TRUMP is going to win the Republican nomination, I don’t think he needs to elaborate much on his plans. The GOP is going to hold on to the Senate and the House. TRUMP be able to do whatever he wants, however he wants. So no need to explain how he’ll be a diplomat about it. One of Romney’s talking points was how well he worked with a Democrat legislature in Massachusetts. Trump won’t need to dedicate time to that type of argument.

And even if Democrats manage to retake the Senate, they hurt themselves by establishing a precedent to use executive orders every time Congress stops the president. So I hope they’re ready for revenge when TRUMP uses his presidential powers to bypass every single objection they have.

It’s going to be payback for the 2009 congress. We’re going to be able to do whatever we want. Everything the Democrats forcefully “accomplished” is going to be undone.

Well, since the constitution has already been screwed, time to fight fire with fire and trash it completely.


One comment on “Common Law Contra Constitutionalism on Defending Liberty

  1. Pingback: The Incoherent Logic behind the American Constitutional Order | Deus Ex Machina

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This entry was posted on February 24, 2016 by in Uncategorized.
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