“The lamps are going out all over Europe; we shall not see them lit again in our lifetime.”
- Edward Grey, Secretary for Foreign Affairs, on the eve of the Great War
Genesis 2: 9 The Lord God made all kinds of trees grow out of the ground—trees that were pleasing to the eye and good for food. In the middle of the garden were the tree of life and the tree of the knowledge of good and evil.
16 And the Lord God commanded the man, “You are free to eat from any tree in the garden; 17 but you must not eat from the tree of the knowledge of good and evil, for when you eat from it you will certainly die.”
Genesis 3: Now the serpent was more crafty than any of the wild animals the Lord God had made. He said to the woman, “Did God really say, ‘You must not eat from any tree in the garden’?”
2 The woman said to the serpent, “We may eat fruit from the trees in the garden, 3 but God did say, ‘You must not eat fruit from the tree that is in the middle of the garden, and you must not touch it, or you will die.’”
4 “You will not certainly die,” the serpent said to the woman. 5 “For God knows that when you eat from it your eyes will be opened, and you will be like God, knowing good and evil.”
You know the story: they ate the fruit, their eyes were opened, God banished them from the Garden, and man has been cursed to toil and eternal damnation ever since.
Of course, I am not insisting that you believe the story.
The Middle Ages
For us law needs only one attribute in order to give it validity; it must, directly or indirectly, be sanctioned by the State. But in the Middle Ages, different attributes altogether were essential; mediaeval law must be “old” law and must be “good” law….If law were not old and good law, it was not law at all, even though it were formally enacted by the State.
Law was in fact custom. Immemorial usage, testified to by the eldest and most credible people; the leges partum….
Where we moderns have erected three separate alters, to Law, to Politics, and to Conscience, and have sacrificed to each of them as sovereign godheads, for the mediaeval mind the goddess of Justice is enthroned, with only God and Faith above her, and no one beside her.
Another who has written of this time is Jacques Barzun, a phenomenal scholar of European history and culture. His book, “From Dawn to Decadence,” is a must read for anyone interested in European history of the last 500 years. Barzun offers, regarding the law of the Middle Ages and the Middle Ages generally:
The truth is that during the 1,000 years before 1500 a new civilization grew from beginnings that were uncommonly difficult….showing the world two renaissances before the one that has monopolized the name.
…the Germanic invaders brought a type of custom law that some later thinkers have credited with the idea of individual freedom.…no rule was held valid if not approved by those it affected.
Anglo-Saxon law…defined crime literally as breaking the peace.
Such was a nation of laws, not men; every noble vested with veto power; the king below the law, whose duty was limited to enforcing the law – not creating the law; law based on oath – sacred oath between the parties and including God.
All in a cultural milieu that fully incorporated the Church; kingly authority tempered by the competing governance structure that the Church offered.
Returning to Kern:
For us, the actually valid or positive law is not immoral but amoral; its origin is not in conscience, God, nature, ideals, ideas, equity or the like, but simply in the will of the State, and its sanction is the coercive power of the State. On the other hand, the State for us is something holier than for mediaeval people….
Such is our lot: legislation and regulation by men wiser than us and wiser than God. I know many readers don’t like the “God” part of this; just stick to customary law as it was known in the Middle Ages: the old and good law, with crime defined as breaking the peace. I can live with this if you can.
Law must come from somewhere. Which of these two models is more predictable, less arbitrary, more libertarian? To ask the question is to answer it; yet, many libertarians (and most everyone else) avoid (or even fight against the logical answer to) this question.