When law was sovereign
All of us in the modern West grew up believing that we were living under "the rule of law." The truth, however, is that the rule of law – the sovereignty of law – ended a couple of centuries ago. And by losing it, we lost a primary driver of our civilization.
The sovereignty of law was never perfect, of course… it had to be applied by actual human beings… but it engaged the better aspects of human nature and thrived along with them. The systems that replaced it, on the other hand, thrive mainly upon human weaknesses.
What "rule of law" means to people today is that a single set of rules applies to everyone equally. That's not remotely true in practice, of course, but that doesn't make the concept bad: implementation in the real world always introduces problems. What makes our "rule of law" deeply and even fatally flawed is the part that's not included in the slogans: the fact that a small group of law-makers stand above the law, not below it.
Unlike the rest of us, if the law-makers don't like the way the law applies to them, they are free to change it, and can nearly always do so without consequences.
In the old days of Western civilization, no one was above justice. Law was sovereign over everyone. And that version of law was not made; rather, it was discovered. The judges of that era didn't write edicts, they discovered and explained what was just or unjust in particular cases.
That sounds foreign and even wrong to many modern people, but it worked very well for more than a thousand years; in certain areas of modern legal systems it still functions. But to make this idea clear, there is one thing you must understand… something that strikes moderns as terribly foreign and even impossible, even though it founded Western civilization and maintained it over most of its run:
Law, in those days, was not legislation. In fact there was no legislation of our kind over all those centuries.
The law books that were published at the time were collections of the reasonings noted above, not edicts and threats of force.
And just to buttress this statement, consider that when English philosopher Jeremy Bentham died in 1832, he was hailed as "the founder of modern legislation." Legislation, previously, was a collection of legal findings, put together into one group for convenience.
You should also bear in mind that from the founding of Western civilization until about 1800 AD, there were no democracies. In fact, if you check quotations from the American founders, you'll find them saying that democracy had always failed and would always fail.
Having grown up within a culture that holds democracy and rule of law as untouchable and unquestionable gods, this may disturb you, but it's true, and the old way was actually far better at organizing human affairs. The material advantages we have now (cars, medicine, etc.) didn't come to us via democracy; they came to us through brave and dedicated individuals and the accumulation of hard-won knowledge.
Once Upon A Time…
Our civilization formed in the vacuum left behind by Rome. (That's an incomplete statement, of course, but it's close enough to serve our purposes today.) There were few real rulers exercising power upon Europeans in those days. Very often, the "king" had no fixed court and traveled around with a collection of armed men; and where the king wasn't, power wasn't. Historian Robert Latouche, for example, noted that there was a "state of anarchy which prevailed in Gaul throughout the whole of the Merovingian period." In another place he writes, "Never in our history has the conception of the state known so complete an eclipse."
The Europeans of the 6th through the 10th centuries had to forge a new society by themselves, not at the urging of glorious leaders. And so they created their methods of attaining justice on a town-by-town basis, as historian R.H.C. Davis noted:
Even the law might change from village to village; a thirteenth-century judge pointed out that in the various counties, cities, boroughs, and townships of England he had always to ask what was the local customary law and how it was employed before he could successfully try a case.
Law, then, was built from the ground, up. It was written about in the language of the common people and it addressed actual disputes that arose among them… after the fact. People sought judges to solve existing problems, not to solve future problems before they occurred.
(There is a great deal more to be said about this, but I'll leave off here. You can quite a lot of detail in FMP issues #52 and #53, and in my book, Production Versus Plunder.)
Even kings had to acknowledge this original model of law if they hoped to be taken seriously. A king was held to be a worthy ruler if he upheld the law, and unworthy if he did not. The law, then, was above the ruler; it was sovereign.
On top of that, the universal standard for justice in this era (and this was well noted among English jurists) was "the reasonable man." So long as you were reasonable, and your actions defensible with reason, you really didn't have to worry about legal problems.
And this is very important to understand: Under Western civilization's original model, you faced a comprehensible world. That spawns a far healthier and more productive state of mind than the modern one, which revolves around hundreds of thousands of pages of law that not even a collection of the greatest judges and lawyers actually know… and thousands of armed enforcers standing ready to use violence for the breaking of any one of them.
Even through the 19th century, many people clung to the old model, as economist Friedrich Hayek recalled:
It used to be the boast of free men that, so long as they kept within the bounds of the known law, there was no need to ask anybody's permission or to obey anybody's orders. It is doubtful whether any of us can make this claim today.
This is what life was like when legal systems were developed through decisions of courts and similar tribunals, rather than through legislative statutes or executive edicts.
In Our Time
Beginning in 1800 or so, a new model of governance was imposed upon the West. Under it, law became the edicts of the powerful, and it was called legislation. Supposedly the new system placed the people in control, but that was never actually true. For the most part it was just a flattering slogan.
When law became legislation, the sovereignty of law was ruined. From that point on, rulers were no longer subject to the law – they created the law. And they could change the law however they saw fit. They were firmly above the law.
For the past few centuries, "the law" has been under the firm control of smallish groups of rulers; thus it became something wholly different from what it had been. This change transferred sovereignty to the winners of popularity contests, aka, politicians.
And so our modern world hasn't really been "Western civilization" for quite some time. It has been a hybrid civilization, missing one of its original (and primary) pillars. As a result, the people of the West no longer have the confidence that their civilization once cultured. Rather, they've been made to feel inadequate.
But when law was sovereign, people just like them – their direct ancestors – encountered a comprehensible world, in which they were fit participants.