Monday, January 26, 2015

"Our White Common Law"

I first learned about the common law from Richard Maybury's book, Whatever Happened to Justice, in which he pointed out that the origin of the word "outlaw" meant someone outside of the law and outside of its protection. Say someone killed someone in a fight. The killer owes the family, say $50,000. If he didn't pay it he was outlawed and anyone could hunt him down, kill him, or capture and enslave him for profit. There wasn't much crime in those days.

He also pointed out law is discovered, like the laws of physics, and not invented, the way much is today.

By the way, there is Judaism and then there is Christianity and there is no "Judeo-Christianity." "Judeo-Christianity" is one of those "inventions" and it's a bad one.

This is from the site, Occidental Observer and was written by Kyle Bristow.

In 1066 AD, the Normans—led by William the Conqueror—invaded and captured the British Isles. With this invasion, the Norman invaders brought with them their customs, folklore, technology, art, and legal system. The Norman legal system would become what legal scholars label the common law — legal doctrines that are developed through judges taking into consideration our legal traditions and legal precedents to render decisions rather than solely statutory codifications of law.

When Henry II of England (r. 1154–1189) established secular tribunals, the common law was that which was deemed to be “common” throughout the realm—which disregarded the nuances unique to Mercian law, Danelaw, and the laws of Wessex. In deciding common law rights and obligations, English judges frequently deferred to the laws imposed by the Norse invaders, as well as legal musings of the ancient Romans, Greeks, Byzantines, and Germanics. This unified England, as the judges took into consideration history and tradition and judged accordingly. Many of our contemporary torts (civil claims relating to assault, battery, defamation, false imprisonment, etc.), crimes punishable by the state (murder, mayhem, arson, burglary, robbery, battery, rape, arson, etc.), and rights (e.g., self-defense, privacy, weapon ownership, free speech, property ownership, procedural due process) — have roots in this organic and very much European law.

Despite what Zionist neoconservatives and Christian conservatives would have us believe (e.g., here), ordered liberty existed in Europe prior to our forefathers’ adoption of Judeo-Christianity, and our contemporary legal system arguably has significantly more in common with the legal ideals of pagan Europe than anything coming out of the Levant in ancient or modern times. Simply said, the proposal that Judeo-Christian law constitutes the basis of modern American law is nothing more than a propagandist fiction—that is, the European conceptualization of rights and obligations was formed independent of and not because of Judeo-Christianity. Virtually all legal procedures and rights in use and recognized, respectively, today are of European and not Judeo-Christian origin.

In Njals Saga, which was written in the late thirteenth century and with a story that takes place between 960 and 1020 in pagan Iceland, the Icelandic legal system is detailed extensively by the anonymous author. This Icelandic system was based upon the legal system of Nordic countries, since the Norse settled Iceland. In this saga, Njal—a lawyer—attempts to mediate, arbitrate, and litigate controversies between Icelandic peoples, and the reader is introduced to the legal system commonly existing throughout Northern Europe approximately one millennium ago:

lowly peasants could file suit against even powerful feudal lords and would get their day in court;

process servers were used to summon defendants to court by orally stating the claims made against them—and the defendants would accept service by repeating the claims verbatim;

district courts would try cases and if any party disagreed with the verdict, they could appeal to the Althing—a higher court—for review;

a court would only have personal jurisdiction over a defendant if that defendant engaged in conduct in that jurisdiction or paid homage to that jurisdiction’s “godi”—the feudal lord;

jurors would serve as factfinders and parties could exercise peremptory challenges to excuse a certain number of prospective jurors from the trial for any reason or for no reason whatsoever;

lawyers could represent real parties in interest at hearings and could call witnesses to testify and question them; causes of action could be assigned to third parties, who could then litigate the cases on their own;

a system of probate law existed whereby the estate of a decedent was distributed to their heirs in an equitable manner; a placeholder called “Jon” was used by Norse lawyers in a way akin to how lawyers today use “John Doe” for unknown parties;

husbands and wives could sue one another for divorce;

the elected “lawspeaker” would publish all laws by orally reciting them in public;

individualism—both in the context of rights and obligations—was a significant theme of Norse law;

and the Icelandic people had a relatively well understood body of laws, rights, legal procedures, and specific penalties for criminal offenses.

In 1938, the U.S. Federal Rules of Civil Procedure were adopted—which are used by American federal courts today, while most state courts use similar rules. For federal court and almost all—if not all—state courts there is a rule that permits a party to make an “offer of judgment” to the opposing party; if the offeree rejects the offer of judgment and a trial verdict results in a less favorable outcome for the offeree than the offer of judgment, then the offeree must pay the offerer’s attorney’s fees and court costs that were incurred following the offer. Modern American jurists praise the offer of judgment as being an excellent vehicle by which tort reform goals are served, since parties are encouraged to settle cases out of court.

But the Norse beat them to the finish line with this legal procedure: it was in use by the Norse and Germanic tribes at least one millennium ago and was detailed in Njals Saga numerous times. In fact, for Norsemen and Germanics one thousand years ago, it was viewed as dishonorable and cowardly for one to reject a fairly made offer of judgment.

Tacitus chronicled the first-century Germanic peoples’ customs in his Germania. In this work, the Roman historian observed that our forefathers would hold trials, and if the controversy was relatively insignificant, the wrongdoer—after a public trial—would be made to pay fines to the tribal government and restitution to the victim, while the death penalty was reserved for two types of crimes: treason and moral infamy—the latter constituting conduct such as cowardice and sexual deviancy. For treason, the condemned was hanged—according to Tacitus—so that “glaring iniquities” would be exposed in plain sight, while those condemned to die due to moral infamy were drowned and buried in swamps so that degeneracy was out of sight and out of mind.

Although Tacitus did not delve into it, the Germanic people also had a form of punishment called outlawry; there were two types: lesser and full outlawry. If a person was sentenced to lesser outlawry, then their status as an outlaw would last only for a specific number of years, whereas full outlaws were made outlaws for the remainder of their lives. As an outlaw, anyone could kill them with legal impunity, if an outlaw killed another outlaw then the killer’s outlaw status would be rescinded—thereby rewarding outlaws for killing one another, and if any non-outlaw rendered assistance in any way to an outlaw, then that person would be made an outlaw as well. A sentence of outlawry was, in effect, a death sentence.

On an interesting note, Leif Erikson’s father, Erik “the Red” Thorvaldsson, was sentenced to full outlawry in Norway for having committed the crime of manslaughter, which induced Erik the Red to move to Iceland in order to escape with his life. While in Iceland, he was sentenced to lesser outlawry for a term of approximately three years for “some killings” he committed around 982. So as to again escape with his life, Erik the Red sailed west to Greenland and established the first Norse settlement on that island. When his son, Leif Erikson, came of age, he accidentally sailed further west to a land he called “Vinland”—translated as “Wine Land”—due to its great climate for growing grapes. Vinland is in present-day Canada, and Leif Erikson beat Christopher Columbus to the New World by nearly half a millennium due to the legal pressures imposed upon his father.

Judges today frequently defer to our Anglo-Saxon common law—that is, the substantive legal principles we inherited from our Germanic forefathers, since the English inherited their laws from their Germanic invaders—in deciding cases that concern what constitutes a right. For example, in Roe v. Wade, the United States Supreme Court referenced the “common law” twenty-three times in its opinion to determine whether abortion is a right of the people. The justices basically ruled that prior to quickening, European peoples historically permitted abortion, and so there was a right to it via the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The implication was that whether a right exists or not is determined by history and tradition, so the judges deferred to our history to decide whether the right existed or not.

Additionally, in McDonald v. Chicago—in which the United States Supreme Court ruled that the Second Amendment recognizes a right for individuals to keep and bear arms that cannot be infringed upon by state governments — “common law” was referenced three times, “tradition” was referenced forty-nine times, and “history” was mentioned in the opinion over one hundred times.

More recently, in DeBoer v. Snyder, the United States Court of Appeals for the Sixth Circuit ruled that same-sex marriage is not a right since it does not exist in history and tradition. In DeBoer, “common law” was referenced eight times and “history” was referenced twenty-four times.

State courts also rightfully defer to the common law in deciding substantive rights. In Glass v. Goeckel, 703 N.W.2d 58 (Mich. 2005), the Michigan Supreme Court was tasked with deciding whether the public has a right to walk along the shores of the Great Lakes when a private landowner purports to hold title to the water’s edge. The Glass court answered in the affirmative after noting in pertinent part, “Throughout the history of American law as descended from English common law, our courts have recognized that the sovereign must preserve and protect navigable waters for its people. This obligation traces back to the Roman Emperor Justinian, whose Institutes provided, ‘Now the things which are, by natural law, common to all are these: the air, running water, the sea, and therefore the seashores. Thus, no one is barred access to the seashore . . . .’ Justinian, Institutes, book II, title I, § 1[.]”

In State v. Delgado, 692 P.2d 610 (Or. 1984), the Oregon Supreme Court was tasked with determining whether a citizen has the right to keep and bear knives. The Delgado court answered in the affirmative after noting that knives have been carried since “the Viking Period of the 9th and 10th centuries” for war and chronicling their use by Westerners since then for utility reasons and before then for ceremonial purposes.

Roe, McDonald, DeBoer, Glass, Delgado, and countless other cases demonstrate rather unequivocally that our people’s legal history is important.

Although statutory law can abrogate the common law—and states have done this by doing away with the right for one to demand a trial by combat or by preventing one from suing a third-party who made sexual advances towards their spouse for “alienation of affection” — the common law nevertheless has a significant influence on contemporary American jurisprudence. This influence is assuredly a good thing, because the common law is White law—when judges defer to history, after all, they are not deferring to Asiatic legal history, African tribal legal customs, or the legal precepts of Moctezuma II, but rather, to our history and to that which our people customarily believe to be right and wrong.

The common law is a reflection of the soul of Western Man—that which he appreciates is prescribed as a right, and that which he abhors is proscribed by law. American laws will reflect our attitudes so long as our people comprise a significant portion of the population. Otherwise, laws that infringe upon European ideals—such as hate speech restrictions that infringe upon the right of free speech; civil rights laws that violate the rights of free speech, free association, and property rights; firearm restrictions which are an affront to the right of self-defense; and same-sex marriage laws which mock the European conceptualization of the institution of the family—will become prevalent.

Or to quote Njal, “With law our land shall rise, but it will perish with lawlessness.”


Mindstorm said...

Heh, Brennu-Njáls saga (translated as "Saga o Njalu Spalonym" to Polish). Brings back memories... Do you remember the reasons for a divorce recounted therein? Literal 'sexual incompatibility'. It was quite a shock for the sixth-grader me.

Unknown said...

These s0-called "primitive" societies had law far in advance of ours. When I read them I was shocked at how sophisticated they were.

Carnivore said...

These s0-called "primitive" societies had law far in advance of ours.

Yeah, a trap that's so easy to fall into because of the propaganda is the idea of continual 'progress' - that is, today's society is so far advanced compared to earlier times in everything, not just technology. As it is, outside of technology, modern society has many aspects that are quite primitive.

Anonymous said...

"The century following the peaceful end of the Cold War and the liberation of the captive nations may witness population losses for Europe that exceed those of two world wars and rival those of the Black Death of the 14th century. European Man is an endangered species. European Man is dying out. By 2050, Russia, the fourth most populous nation in 1950, will be 15th, behind Egypt, and far behind Congo and Tanzania. The only Western nation in the top 14 will be the USA. But most Americans will then trace their ancestry to Asia, Africa and Latin America.

Since 1914, all the great European empires—British, French, German, Russian, Italian—have vanished. All the great armies and navies have melted away. All are being invaded and repopulated by African, Asian, and Middle Eastern peoples they once ruled. And almost all of the native-born populations of Europe are aging and dying and passing away.

“This is how the world ends,” said T.S. Eliot, “Not with a bang but a whimper.” Like Southey, he, too, may have got it right."