NOTE: Along with a friend, I’m in the process of writing an essay about the metaphysics of the English. The following is a brief message to another friend about the matter including one of the main theses of the piece, that being the importance of common law.
We English have never been a Traditional society in the ordinary sense. We have never had a true empire, or even a true king in the sense of pontifex. Tradition, however, is manifest through our laws.
Where in other societies (Roman Empire, Persia, Ghibelline Empire, etc.) the rex was the vessel for mediating power between the temporal and Absolute, in England, lasting from the fifth century AD to about sixteen-hundred when James II was deposed in regicide, this mediating power is found in our common law system and in the relationship between the people and the sovereign; there are a couple of quotes which sum this up from Cantor’s The English:
As early as the fifteenth century, educated Englishmen were accounting for their country’s prosperity by favourably comparing English political and legal institutions with those of the less fortunate French and Germans. An English chief justice of the mid-fifteenth century, Sir John Fortescue, in fact, worked out a whole treatise on political theory using this theme. He asserted that the nature of the English constitution was a limited monarchy in which the consent of the people, that is, the important groups in society, had to be taken into account by the king and the royal government. In contrast, Fortescue maintained, the French and Germans suffered from the oppressive effects of despotism, which was suitable in his eyes for French and German peasants but not for English gentlemen. (pg. 17)
The essential nature of English constitutionalism is the idea that the government is responsible to the governed and that a higher law overrides royal authority. The personnel changes, particular institutions appear, flourish, and are altered, but the idea of the constitution remains the same, whether in the Anglo-Saxon period or the Victorian era. … Law resides not in the king but in the folk, and the king is merely an executive of this folk law. Here already is the operative principle of the common law. (pg. 20-21)
The lack of a decisive authority and any idea of sovereignty are immediately evident when we look at the Anglo-Saxon dooms. Unlike the code of Roman law, which was definitively put together in the reign of the sixth-century Byzantine emperor Justinian, the Anglo-Saxon law collections are not codes. They are in no way systematic or comprehensive or based on abstract moral and political synthesis. The Anglo-Saxon law was fundamentally oral and customary; it resided in the bosom of the folk and in the memories of the wise old men of the community. The only laws written down are those that refer to difficult points at issue or situations that are unusual, such as the peace problems created by the appearance of a new group in society. If we could interview an Anglo-Saxon doomsman, he would say that the written laws represent not more than half of the customs of the community. Like an iceberg, a great part of Anglo-Saxon law lurks beneath the surface. (pg. 30-31)
The law to the Anglo-Saxon mind is thus a pre-existing substance, and its confusion and contradictions are sanctified by antiquity. The concept of legislation is totally lacking and the good law is the old law. Even when an enterprising and intelligent king under the guidance of churchmen actually creates new laws he must always do this by asserting that he is merely making clear and confirming the good old law. The law, like an English fog, is always there, covering the way of life of the community, and this customary way of life cannot be abrogated or even substantially altered by any overruling authority.
These Anglo-Saxon notions about law are directly opposite to the Roman idea of jurisprudence. The Romans believed that law resides in the will of the emperor, who as the public corporate embodiment of the state has the authority to proclaim whatever law he deems to be in accordance with the moral law of nature. Insofar as the Anglo-Saxons could even comprehend such a proposition they found it fundamentally wrong and socially dangerous, and for long centuries there was great hostility in England to any Romanist ideas of sovereignty. When in 1399 King Richard II was understood to say that law resided in his own mouth, he was held to have enunciated a very un-English fancy for which, among other reasons, he had to be done away with. (pg. 31)
In short, such notions rest within the people, though “the people” does not mean peasantry or indeed demos in the normal sense, but, rather, the idea of ancestry and thede, itself God-blessed as its founding fathers, Hengest and Horsa, were descended from Wotan.