WE began with nothing but a concept of a number of persons who are equal, and argued to the existence of natural law ¾ the law to obtain in the state of nature. We now have a good theory of international law. We understand why a casus belli is met by an ultimatum and a declaration of war; because, if the nation claiming to have been wronged had not announced its cause for all to hear, it would have rendered itself an outcast from the society. We understand how we expect to keep the peace among nations, even though nations differ from men in that one of them can quite plausibly be capable of fighting three or five or even fifteen of the others. Each nation knows that, if it breaks the peace, all of the others will join together to expel it from the society ¾ what is called collective security.

And we have a good theory of law between equals of the other great class, those who can without confusion be called sovereign, namely intelligent human beings.

However, this is by no means sufficient. Natural law requires that the collective is to proceed by consensus. This is plausible enough for nations, which are inherently few in number. But human beings ¾ at least in satisfactory societies ¾ increase in numbers. When there are very many individuals in the society, there is an enhanced danger that one person may lack the fortitude to oppose the remainder, so that the society becomes, not safer, but more erratic as it grows.

There is yet a further problem which natural law cannot answer. The law requires that each entity join in upholding the law. And this is reasonable enough for nations; all of them can join together and ¾ presumably ¾ muster more than enough force for any purpose. But this is not reasonable for human beings. The human being cannot at once aim a rifle and also guide a plow, watch the horizon and make a plan.

Consequently the system in which all of the entities act collectively gives way to one in which a small number act on behalf of the whole ¾ following a procedure which assures that the action of the few is that which the many would have followed.

In order to institute such a system, it must be possible for the consensus, today, to decide what future conclaves will hold: it must be possible to go beyond humanism (mere freedom from objection) and encompass reason.

Nor is this difficult, in a society of numerous (natural or fictitious) persons. The law is based upon the nature of men (or nations), that there are a number of them who are equal. And this condition can be presumed to continue.

The natural law requires ¾ or, perhaps, results from ¾ the following of precedent; the decision in any case is to depend only upon the circumstances prevailing between A and B, not upon who A or B may be. In a "mature" populous society, very many different cases between P and D will have been settled, so that in future cases nothing is left to do but hear the evidence and decide which of the past precedents is properly to be followed.

Thus it is a short step indeed to change from assembling the whole society to assembling a small part, on the understanding that the part will follow the precedents set by the whole.

If we accept the concept of "reason", from which no person can demur, we can agree that what has been proved beyond a reasonable doubt has been proved to all reasonable men ¾ even though the greater part of all reasonable men did not hear the proof. Thus if some few representatives are convinced beyond a reasonable doubt, they can ¾ plausibly ¾ claim that all men would agree with their conclusion.

But, if only some of the people are hearing the case, there must be some assurance that they are indeed following the precedents established by the whole of the people. The few ¾ the jurors (law-givers) ¾ must have heard less than all of the preceding cases. The parties will insist upon pointing out the precedents; the jurors will hear not only the evidence, but also the law. And, since the purpose of the proceeding is to reach an agreement which can be justified to the remainder, the law must be explicitly settled in each case.

If the decisions are based upon the theory that all persons are equal, the decision in the case of Black must be consistent with that in the case of Brown: otherwise, either Black or his adversary would have cause to object. Thus the decisions can be tested by the process known as review, by the criterion of stare decisis.

Observe that review ¾ re-view ¾ is indeed what the word implies: the "higher" court, usually having a greater number of members, does not change the decision, but either accepts it or remands it for the amendment of errors. The trial court must agree with, and indeed initiate, the final ruling.

We are now on the brink of a development which goes beyond the scope of natural law. If the review of decisions is made by the general assembly, that assembly can, presumably, announce at once that the decision in Brown was wrong and that the law in truth is thus . . . . But if the review is made by some few members of society, a new problem is introduced. The few may very well be able to prove that the decision was wrong: but it is impossible for them to erect a new law to govern other cases, because there may well be others in the society who know of instances which would disprove the proposed new law. Thus judicial review ¾ review by the nominated judges ¾ can strike down false law, but must leave behind it a void or, at most, some other law no better established.

The solution to this problem is, we can see, that when the occasion occurs, then the people assemble and agree upon an amended law. And, because it has been agreed that an assembly very great in numbers is unreliable ¾ the individual may feel himself irresponsible ¾ so this assembly may be restricted to a select few.

If the people have delegated hearing the cases to a few jurors, reviewing the law to a few judges, and drafting the law to a few legislators, it goes without saying that they will delegate the task of fighting off aggressors ¾ which was the very purpose for which they joined together ¾ to some few who can give it their undivided attention.

Corroboration Of Common Law

The common law is, in principle, easily found; it is the law of the law reviews. It is the law erected upon the decisions in the reports, and the law which the opinions claim to expound.

In practice ¾ as is well known ¾ the common law is difficult to find, if not because some of the precedents are contrary to law, then at least because the field of law has become fragmented, and there is difficulty in ensuring that the holdings in one field are consistent with those in another.

Nevertheless, there can be seen major instances where the common law is indeed that here deduced ¾ i. e. democracy.† The most obvious one is that no court can convict without the consensus of the jurors. (And, of course, that the jurors pass upon both the facts and the law.) Less obviously, the requirements for "indictment or information" affirm that the state does not have the initiative to investigate or prosecute, but is to act responsively.

Under common law, the grand jury included only twelve members, so that an indictment was possible only by consensus ¾ each member was responsible for whatever was done. The legislatively-enhanced grand jury of eighteen or even twenty-three is, in contrast, hardly a check on the executive at all.

An undeniable confirmation found in common law is, that the common law characteristically holds that it is criminal to fail to pay a (proper) tax. Nor, of course, is this the only obligation upon citizens; they are required to serve upon juries and to give testimony. These obligations are special examples of the general commitment to defend an equal who is threatened.

Yet another confirmation is that common law indeed concerns itself only with sovereigns. The law provides remedies only for equals; what a person does with his own property or dependents, or what he may suffer from acts of God, are no concern of the common law. The common law specifies only who, in the given circumstances, is the proper party to act, not what the action may be. (The definition of the proprietor may indeed differ from one society to another ¾ presumably, it is the person who first makes a claim in the traditional manner.)

Under the common law of England, one could be charged with murder only if the victim were "living under the King's peace," i.e. a responsible person.

The concept of sovereignty is not merely implicit in the decisions ¾ it is made explicit in the law of injunctions. The issue is, whether D can be enjoined from taking some action on the ground that the action would give rise to a claim for damages done to P. And the law replies, No. (With an exception, narrowly construed, that if the harm would be irreparable, such that D could not conceivably make P whole again, an injunction will issue.) The law is, then, that there is a right to act first, and take the consequences in damages: the law makes no claim to understand cause and effect, it knows only what is right, or wrong, a priori. This principle ¾ "no prior restraint" ¾ can be reduced to a word: liberty. †

The concept of liberty is now so obscure that it is customary to speak of "individual liberty." Even F. A. Hayek, in his monumental The Constitution of Liberty [Chicago: 1963] defines it only as freedom from coercion "without due process of law:" thus, for Hayek, the law is a threat to liberty, not its shield.

The common law is, we see, contrasted to permissiveness: it asserts that a sovereign acts as of right, and that he alone is responsible for what he has done.

This model has, then, explained what is familiar as the "common law" (as distinct from "civil code") society, in which there are juries and judges and a legislature ¾ and in which the latter may quite well proceed only by majority, and be not bound by precedent.

Table 7.1 shows that the nations which honor common law, in the breach if not in the observance, have highways satisfactory to the users rather than the governors.

All of these countries display road signs worded in English and use similar vehicles; in Britain and South Africa a driver yields right-of-way to one on his left (except at a "roundabout" [circle].) One may, or may not, find it amusing that the most conservative people on earth have the most destructive government (last column ¾ the figure for the U. S. is rising fast, that for South Africa, I imagine, falling.)

The term, "common law", has hitherto been used without definition. It has two plausible meanings which are here rejected. The first meaning is, common usage ¾ mere custom; as in the holdings which declare that common law can always be changed by statute. The second is, the law which was common to all the courts of England ¾ this law was not "common" in the sense of "common experience" or "common sense", it applied only in cases of one class of persons, viz. subjects (as an example that this is significant, one might note that English common law would have held Aaron Burr, president of the Senate, guilty in the killing of Alexander Hamilton ¾ only the Lords could fight with impunity.) The term "common law" is here used to mean the law which can be tested by stare decisis, which would be shared by a number of courts reconciling their decisions; this is the reverse of the first definition, it implies that the law is based upon reason and not peculiar to each community.

The Common Law of Crime

The common-defense theory of jurisprudence is transgressed most acutely in the holding that the court (or, at the very least, the legislature) is empowered to decide the sentence in a criminal trial without the concurrence of the accused ¾ i.e. that the state can lay hands on an outlaw, as if the state were the equal of a natural person.

The essence of criminal law is, that he who refuses to take up arms when an equal is wronged renounces the protection of law. A citizen has an unquestionable right to hunt down such outlaws, and kill or enslave them. The popular belief is that common law allows the state also to "punish" natural persons, just as if it were the equal of a person ¾ the words "common law" are synonymous with barbarous murders and muti