This is something very important – something we do not pay sufficient attention to: common law.
It is the basis of our freedoms: the legislature with all its lawmakers are not the source of our rights and freedoms – they do not grant them to us from above. Rather, core rights and freedoms are something we are born with, not something that comes from the state.
Yes, we recognize that in order to co-exist with others, we may agree to put some restrictions on our freedoms: that is the role of our elected representatives.
In common law, there is the explicit recognition that rights come from within each individual and that governments – all governments – are there to restrict these freedoms. The less (smaller) the government, the fewer restrictions on our rights and the more free we will be. The bigger th government, the more restrictions and the fewer freedoms….
This is a philosophy which views each human being as an individual, full of potential and free to fulfill this potential or not.
It is in sharp contrast to the view that every person is born as a cog in a machine, a member of a society which has the ultimate power over her or him. Under this philosophy, it is the society which is the source of right in as much as it permits each member of the society to fulfil a role it deems most beneficial for the society. In this type of a set up, one only has the options that the society opens for them, no freedoms to choose things or actions outside of what the group would benefit from. This is called the civil law…
We must never forget the distinction between the two – and we must never give up our heritage of freedom for the gilded cage of civil law.
Just last night, I was reading to my son a 19th century traveller’s description of the Magna Carta Island – and the writer had permitted his imagination to float back across the centuries to that unforgettable June morning in 1215 when King John was brought there and forced to acknowledge this principle – already old then, but in danger of being eroded…
Sure, the Magna Carta is an imperfect document – as all human products are. But, it is the source of – and vastly superior to – all further re-tellings of it, from the US Constitution to the Canadian one, and so on. Along the way, the documents have become more and more cumbersome and less and less perfected…so we can trace just how much of our birthright we are permitting ourselves to give up in order to live in ‘civilized’ society.
But, do not lose heart!
Precisely because from Magna Carta on, all these documents are mere affirmations of our pre-existing rights, it is our rights that are supreme should there ever be a disagreement. Precisely because it was the rights that were pre-existing!
Now, if we could only have judges who see it as clearly as this!