Two Traditions of Governance

In order to more peacefully and profitably govern the small towns and villages in the region it might be helpful for local officials (elected and unelected) to take into account that we have a mixed tradition of governance in our country. One the one hand, we inherited common law from the British, which was used during the colonial period, and, on the other hand, at the time of the Revolution we chose a more continental approach and wrote out a constitution and codified parts of existing law based on the principles set forth in that document.

The original difference between the traditions is that, historically, common law was law developed by custom, beginning before there were any written laws and continuing to be applied by courts after there were written laws, too, whereas civil law developed out of the Roman law of the emperor Justinian’s Corpus Juris Civilis.

The main distinction that is usually drawn between the two systems is that common law draws abstract rules from specific cases, whereas civil law starts with abstract rules, which judges must then apply to the various cases before them.

Frederic William Maitland, an Edwardian English medievalist, is credited by Norman Cantor (Inventing the Middle Ages) with accurately describing the actual way that the English House of Commons worked as it evolved through the late Middle Ages. Before Maitland’s The History of English Law was published in 1895, the prevailing conception of the spirit of English democracy was that it had always been the politically charged debating society that it was during the Victorian Era. Maitland, by going back and looking at the actual written records from the medieval period, showed definitely that in fact the Parliament had developed as a body to carry out the Crown’s business effectively.

As Cantor writes, “There was nothing political, consensual, or even dramatic about the Parliament of 1306.” The political machinations associated with the modern Parliament (and U.S. Congress) did not develop until after the mid-17th century and, according to Maitland, have never subsumed its original purpose.

As Cantor further writes, “The valuable function of government, we know now, is not to be an arena for irreconcilable ideological polarities and an outlet for passionate debate. The state is there to make the lives of ordinary people secure and comfortable, to maintain a civil society through the rule of law.”

There is apparently the tendency for those who live their entire social and economic lives in a small town to proceed along the path of English common law. That is, to devise rules of conduct and governance from a lifetime (at least) of specific experiences. In contrast, it seems to be the tendency of people who have relocated through their adult (and perhaps their young) lives and perhaps re-imagined their own sociological perspective to adopt a set of abstract principles and to judge specific experiences by them.

We would all do well to realize the civic history of the United States is a blending of these two traditions and that there is no reason why this blending can not be recreated at the local level in the 21st century to create as vibrant, resilient and flexible a system as we have at the national level. It is, in fact, so resilient that it will in all likelihood even recover from attempted evisceration by two Bush administrations.

14 responses to “Two Traditions of Governance

  1. Whether common law, civil law, or where ever our laws come from, they are useless if they are not enforced. Bush not only attempted to eviscerate our system of law, he flagrantly violated the law. He is setting a precedent that will affect us for generations to come in Washington and in Trumansburg. Perhaps if we passed a resolution to encourage our representatives to look into this, it would undo some of the damage, and leave behind a record that we honor our system of law, and object to it’s being undermined.

  2. Bill Chaisson

    Actually, because we have a constitution and aren’t solely governed by common law, the Bush administration can not “set a precedent” in any way that violates the Constitution.

    We recovered from the weak presidents of the late 19th century who let the robber barons have their way, and we will recover from the Bush administration.

  3. Bill,

    Are you saying that precedents can’t be set in a system of civil law? Why would you say that?

    Richard Nixon set a precedent when he said “When the president does it, that means that it’s not illegal” claiming extraordinary executive privilege. This left an impression on a young White House Staff assistant named Dick Cheney. He agreed with Nixon. He was sad to see Nixon leave. Imagine if Ford had not pardoned Nixon, but he had been prosecuted for his crimes. That would be a better precedent to set. See how that works?

    What if we had prosecuted Reagan and H.W. Bush for their roles in the Iran Contra Affair? Do you think G.W.Bush would have been elected president if his father had been in prison? That would have been a better precedent to set. Get it?

    What if McCain wins in November. Do you suppose he will undue all the damage done to our system of law? Are you crazy?

  4. Bill Chaisson

    When I use the word “precedent” in this context, I mean legal precedent. Nixon is famous for “expanding the power of the presidency,” but after his crimes were exposed and he resigned, the power was diminished.

    I agree that the return of Nixon protegé Dick Cheney to the White House as vice president did bring back the ideology of the “strong president” and I agree that there have been very bad consequences. But I do not agree that there has been some sort of damage to the Constitution. On the contrary, the strength of the Constitution and the laws the follow from it are what have kept these administrations from seizing (and keeping) even more power.

    Do I think G.W. would have been elected if his father was in prison. In a word: yes. A mayor of Boston was re-elected when he was in prison.

    John McCain is all over the place rhetorically. I’m not actually sure what he would do if elected. Given his performance as a senator, I would say that he would not continue to damage the Constitution in the same way that the Bush administration has. I strongly suspect that his saber-rattling is campaign claptrap to woo the right.

  5. Bill,
    In the above post you contradict yourself. I think you’re saying that you don’t think damage has been done to the Constitution, and then you turn around and say McCain wouldn’t continue to damage it. Do you need me to outline the damage?

    And there’s no way GW could get elected with HW in prison. No way.

  6. Bill Chaisson

    You’re right. I did contradict myself.

    I do not think that the Constitution has been damaged, but I do think that people’s faith in the government has been damaged. Exhibit A is the very, very low standing of the current administration in opinion polls.

    My reading of American history leaves me with the feeling that many factions over the years have attempted to seize more power than the Constitution actually allows them. And yet the balance of powers within the government has always managed to bring the government and the country away from an extreme departure from the principles outlined in the Constitution.

    It is really very difficult to find an administration that did not either attempt to circumvent the Constitution or weakened the central government (either for ideological reasons or through incompetence) and handed over power to business interests.

    As the United States has grown more powerful economically and politically, the amount of governmental power to be seized has only increased. The consequences of the Bush administration defying the Constitution are greater than, say, the Andrew Jackson administration doing it.

    If Bill Clinton went to prison for something he did in office and Chelsea ran for president, I’d still vote for her, if she seemed like she would do a good job. Not the same thing, of course, because she didn’t work in his presidential campaign, but still I don’t judge the son (daughter) for the sins of the father and I don’t think most Americans do either.

  7. Bill,

    Every station Bush has reached is a direct result of his privileged birth. His grandfather Prescott Bush should have gone to prison under the “Trading with the Enemies Act” HW Bush should have been prosecuted for his role in Iran Contra. Had we upheld the law, Bush would be working in Wal Mart instead of running this country.

    As to your “I do not think that the Constitution has been damaged” He has damaged it in many ways, but the most egregious is the Military Commissions Act.

    According to Center for Constitutional Rights legal director Bill Goodman, the provision of the MCA that strips the right of habeas corpus is a direct violation of the suspension clause of the U.S. Constitution because it denies non-citizens a meaningful opportunity to challenge the legality of their detention. The clause states that the writ of habeas corpus can only be suspended “in Cases of Rebellion or Invasion.”

    The MCA was a successful and damaging attack on our Constitution, especially amendments 4,5,6,7 and 8 of the Bill of Rights.

    Earlier, the Patriot Act striped most of our 4th amendment rights.

  8. Bill Chaisson

    We don’t have too many patrician presidents. The Bushes are the first since FDR. I can’t think of any East Coast patricians between TR and John Quincy Adams. There are more patricians in the Senate.

    My point is that it is unusual to use social privilege to become president. Most of these people prefer to exercise power behind the scenes and put a pliable bourgeoisie into the Oval Office.

    It is an absurd remark to say that Bush would become a working class person had he been prosecuted for his actions while in government.

    There basically two kinds of presidents, the completely ineffectual and those who bend the rules to use their power. There is evidence that even a straight arrow like Harry Truman allowed some of his cabinet to get a little out of hand.

    I don’t mean this to be cynical. On the contrary, I think that you always need a watchdog to keep the executive branch in check. I’m extremely frustrated with Congress and the Supreme Court in this regard. Particularly Congress because they’re popularly elected. There has been a real failure in the leadership of the Senate to check the excesses of the Bush administration. Hillary Clinton voting for the Iraq invasion is Exhibit A.

    Congress did rein in some of the initial excesses of the Patriot Act. That was probably because they finally got around to reading it.

    Allen, you would really enjoy Brian Dykstra’s “Jesus Factor,” if it returns (again) to the Kitchen Theatre. It is a one-man play that is essentially a screed against the religious right, but is a bracing critique of the War on Terror too.

    I can see, but do not agree with, how habeas corpus would be suspended if the attack on the World Trade Center was construed as an “invasion.” That is one of those things that will be corrected if enough of the right people (which is to say, the Senate and the lawyers who work for them) realize that it was a mistake to interpret the attack as an invasion and invoke the exception.

    I don’t think there is any to be gained with this going-to-hell-in-a-handbasket attitude. It amounts to crying wolf when you are really dealing with a bad dog.

  9. “We don’t have too many patrician presidents. The Bushes are the first since FDR.”


    “My point is that …….”

    You’re changing the point

    “It is an absurd remark to say that Bush would become a working class person had he been prosecuted for his actions while in government.”

    I didn’t say that. I said he’d be a working class person if his father and grandfather hadn’t avoided justice.

    ” I think that you always need a watchdog to keep the executive branch in check.”

    My point exactly – can you say impeachment?

    “I can see, but do not agree with, how habeas corpus would be suspended if the attack on the World Trade Center was construed as an “invasion.” ”

    So, you agree, then that he has damaged the Constitution?

    “I don’t think there is any to be gained with this going-to-hell-in-a-handbasket attitude.”

    Here’s what can be gained – If we get enough people to realize that we are going to hell in a handbasket, perhaps there is some hope of changing course.

  10. Bill Chaisson

    Sorry, but I don’t regard the Kennedys as patrician. I think they regard themselves as such, but they are pretenders. At least the Jack-Bobbie-Ted generation were. Being a patrician is a historical phenomenon. If your dad makes gobs of money and sends you to Choate and Harvard, it doesn’t make you a patrician.

    “I didn’t say that. I said he’d be a working class person if his father and grandfather hadn’t avoided justice.”

    I doubt it. This presumes that if Preston Bush had been prosecuted and served time that some sort of shame would have been brought down on the family. This just runs counter to the assertion (that I have often heard from the left) that we are talking about a class of people who believe they are above the law. A class of people who would treat the prosecuted Bush as if he were persecuted and give his son a job out of truculence.

    As regards hell in handbaskets.
    Relying on hyperbole to change the public’s mind does nothing but increase their tolerance for hyperbole. One has to use more and more high pitched and partisan rhetoric to even catch the attention of the press. This tenor of talk falls only on the ears of the choir. Witness that there is absolutely no significant movement in this country for impeachment. None.

    Why? Because the faction of the left making the case has been too hysterical in their rhetoric. But more importantly because both the executive and legislative branches are responsible for the Patriot Act and for the invasion of Iraq. The legislature has failed in its oversight role and they can’t figure out any way to pin it solely on the White House.

    So the Democrats will (in their usual fumbling way) try to take over leadership of both the executive and legislative branches and correct the civil liberties and foreign policy course in some non-dramatic way. They have no interest in “making a scene.”

    We will change course by voting Barack Obama into the White House and voting a clear majority of progressive Democrats into both houses of Congress.

    The way to do that is to coherently criticize the Bush administrations policies, not try to throw the bunch of them in jail. Too many Americans have too much respect for the office of president per se and too little understanding of Middle East history, the global economy and civil rights to go along with an impeachment effort.

    Americans lack this education because the so-called progressive movement in the US has failed to give it to them. The left has failed to exert a positive influence on the public school curriculum, failed to develop a popular media that informs without lecturing, and failed to elect public officials that could use their positions to propound a progressive program in government.

    As a life-long Democrat I am pretty ticked off.

  11. Patrician,
    1. a person of noble or high rank; aristocrat.
    2. a person of very good background, education, and refinement.

    JFK, doesn’t do it for you, GWB does? OMG! You can’t be serious!

    As regards hell in handbaskets.
    It would require very little research to find quotes from the likes of Thomas Jefferson and Martin Luther King, that, had you been the editor of their papers, you might have called hyperbole. Yet they changed the course of history. Perhaps it would be more instructive to point out factual errors in my writing.

    You say there is absolutely no significant movement for impeachment, and yet I was part of the effort that recently resulted in passing impeachment resolutions in the Tompkins County Legislature, and the Ithaca City Council. hmm…

    I got this yesterday from former Attorney General Ramsey Clark, more hyperbole?

    Demand Immediate Action on a Bill of Impeachment of President Bush,
    Vice President Cheney and other civil Officers of the United States

    Demand that your congressional representative
    pressure John Conyers and the House Judiciary Committee

    A message from Ramsey Clark

    Dear Allen,

    George Bush has brought the American People in eight months short of eight years:

    — wars he initiated and accelerated in Afghanistan and Iraq that have cost hundreds of thousands of lives, including thousands of U.S. soldiers killed and tens of thousands disabled for life with no intention and little prospect of ending direct U.S. military involvement half a world away in the next eight years;
    — vast increases in military expenditures, erosion of the planets environment, greater global warming, and a staggering National Debt;
    — pervasive violations of the Bill or Rights, civil rights and civil liberties of U.S. citizens and human rights of foreigners including summary executions, torture, kidnapping, prolonged secret detention, and massive invasions of privacy;
    — corruption of justice by pursuing political and selective prosecutions, false charges and national, ethnic, racial and religious persecution and profiling;
    — tax cuts for the rich, neglect of the poor, $4 a gallon gasoline, high prices for food and other necessities, mortgage foreclosures on the homes of tens of thousands of American families, a pattern of policies intended to enrich the rich and impoverish the poor in the U.S. and abroad.

    President Bush has concealed, misrepresented and falsified facts essential to governance in a free society to mislead the Congress, the Judiciary and the people.

    In his remaining eight months, President Bush will continue to threaten other nations in violation of international law and clearly intends to commit new aggressions in his belligerent presidency. If not stopped by impeachment he may strike Iran’s nuclear projects and immerse the United States in avoidable war for a generation far more exhausting than any we have known.

    Seeking to prevent anyone from daring to even talk with empires, or peoples he proclaims “evil”, Bush invokes “appeasement” of the Nazis, as he condemns “…the false comfort of appeasement, which has been repeatedly discredited by history” to prevent any communication with enemies he selects. Yet he knows that not only Barack Obama and Jimmy Carter have proposed meetings with Iran, Syria, North Korea, Hamas, Hezbollah and others to resolve conflicts, but that his own Secretary of State, Condoleeza Rice, and Secretary of Defense, Robert Gates, Admiral William J. Fallon, immediate past commander of all U.S. forces in the Middle East and his predecessor General John P. Abizaid, among many other U.S. leaders, have urged dialogue with Bush defined evil empires, as a means of reducing tension and avoiding war.

    George Bush knows only force. When he speaks of freedom as his purpose, he intends force as his means. Freedom from the barrel of the gun. He believes torture, kidnaping, secret detention are the way to freedom.

    Above all he uses deliberate deception, concealment of facts and outright lies to the American people and the world as the way to start the wars he begins, but fails to end.

    Completely arrogant, he built a $700 million dollar U.S. Embassy, the largest and most expensive in history, in the heart of Baghdad in the midst of a half decade bloody occupation of all Iraq, his Imperial Capitol in the Emerald City, exposed to daily mortar attacks. And a major new $60 million dollar U.S. prison away from home just north of Kabul, an Afghan Guantanamo, surely good for the recruitment of 25,000 Muslims from around the world who cannot bear to see a new alien torture factory on Muslim soil.

    In the final eight months of his presidency George Bush has made it clear he will be the decider of the next eight years and more. What else can he mean when he lectures the Israeli Knesset telling it “…Israel’s population may be just over 7 million. But when you confront terror and evil you are 307 million strong because America stands with you.”, and in the same breath proclaims that letting Iran acquire nuclear weapons would be an “unforgivable betrayal of future generations … America stands firmly with you in opposing Iran’s nuclear weapons ambitions.” And that immediately after both Israeli Prime Minister Olmert and major opposition leader Benjamin Netanyahu, whose address immediately preceded Bush’s, called for harsh action to be taken against Iran’s nuclear development.

    Of course, Iran like the rest of the world knows both the U.S. and Israel have nuclear warheads capable of obliterating whole nations and major new nuclear arms programs, all in violation of the Nuclear Non-Proliferation Treaty. Threatened nations may believe possession of nuclear weapons is the only deterrent to U.S. aggression.

    While President Bush continues his quest for a “peace” agreement between Israel and Palestine, he arms and incites Palestine to civil war, condones ever expanding Israeli settlements in East Jerusalem and the West Bank and proclaims the U.S. as “proud to be Israel’s closest ally and best friend” in a rare moment of truthfulness, hardly reassuring Palestinians that he can be an honest broker and enraging Arab peoples who have suffered with Palestine for sixty years.

    After praising Israel, which has brought Palestine to tenuous conditions of impoverishment and sudden death, Bush, who has reduced the population of Iraq to the most miserable and endangered on earth with one in five in internal, or external exile, lectures “nations across the Middle East” to “…treat their people with the dignity and respect they deserve.”

    There has been no greater failure in the history of the Congress and the American people than our present failure to proceed with impeachment proceedings against George W. Bush, Dick Cheney and others for these long near eight years of high crimes and misdemeanors, trashing our most precious principles by torture, aggression, and lies, making America the enemy of humanity in many eyes. Our failure to act now may expose America and the world to years of war, impoverishment, environmental degradation and suffering.

    The Constitution is far more explicit about the importance and procedure for impeachment than any other power vested in the Congress.

    It provides in Article II, Section 4, that “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” and in Article I, Section 2, that “The House of Representatives … shall have the sole Power of Impeachment.”

    A Bill of Impeachment filed in the House of Representatives is referred to the Committee on the Judiciary. The Judiciary Committee has the primary responsibility for initiating and receiving all Bills of Impeachment, investigating, conducting hearings, voting on and sending those Bills of Impeachment to the House of Representatives for final determination. Its faithful performance of this awesome duty is essential to the integrity, honor and survival itself of Constitutional government in the United States.

    The Judiciary Committee and its Chairman have failed to act in the face of overwhelming evidence of the most grievous high Crimes and Misdemeanors ever to imperil our nation and its place among nations.

    It is imperative that We, the People of the United States, demand of the Committee on the Judiciary of the House of Representatives and its Chairman John Conyers that they immediately commence consideration of the many allegations of impeachable offenses by President George W. Bush, Vice President Dick Cheney and other civil Officers of the Untied States and present a comprehensive Bill of Impeachment for Committee consideration by July 4, 2008.

    I ask every American who cares about the integrity of our government and the welfare of our People and those we assault to immediately demand Chairman John Conyers and the Committee on the Judiciary of the House of Representatives commence hearings on a Bill of Impeachment of President Bush, Vice President Cheney and others by July 4, 2008.

    Ramsey Clark
    May 20, 2008

  12. Bill Chaisson

    Your definitions of patrician entirely leave out the historical component, which I believe is primary.

    Patricians, in general, do not “do it for me.” They serve a purpose in that they provide historical continuity for a society, but it is the arrivistes that move the culture forward. The Kennedys, in their day, were arrivistes and injected much needed vigor into politics and governance. JFK married into a patrician family. It was generally acknowledged that he married “up.”

    Thomas Jefferson was starting a country, not running an established one. Compare his pre-independence rhetoric with that written while he was actually in office. It would be my prediction that you will find a significant change of approach.

    MLK’s rhetoric was brilliant because he essentially re-packaged Biblical prose. Every listener had already heard what he was saying in another context and he was compelling because he gave them a new perspective on things that they were already supposed to know.

    All Ramsey Clark’s letter does is confirm what I wrote in my previous post: that the legislative branch is complicit in all this crap.

  13. Bill,

    You keep changing the subject on me. Oye. You said there was absolutely no impeachment movement. I posted Ramsey Clark’s letter to prove to you that you are wrong. Further proof exists in polls which show large percentages in favor of impeachment, and John Conyers has a bill in his Judiciary Committee, which calls for impeachment of Cheney.

    You say you are frustrated by the lack of Congressional oversight. I am to. They could do much better. Perhaps they should use the most powerful tool in their toolkit – impeachment.

    Watch this video though. It will warm your heart to see that one guy is trying. This is Henry Waxman trying to get straight answers out of Bush appointed EPA head Stephen Johnson who denied the California attempt to raise their emissions standards above those set by Bush’s corrupt EPA. Johnson remains cool and collected as he basically tells Waxman to go F himself. Darrell Issa jumps in to defend Johnson which doesn’t please Waxman. Even a bulldog like Waxman can’t get answers from these people. Conyer’s just subpoenaed Karl Rove. Rove will probably ignore him. This is what happens when the House leadership refuses to let them use that special tool in their toolkit.

    I’m just trying to do the little bit I can do down here in the grassroots to put more pressure on in hopes that Pelosi will tell Conyers to go ahead and put impeachment back on the table. No hyperbole.

  14. Bill Chaisson

    I said there is no popular movement. None. No one cares. Those bills will go nowhere.

    I’m not changing the subject. I am defending my point that the Constitution is not damaged, the people in government are corrupt and the Constitution is what is holding us together.

    Can you imagine what we would be feeling right now if there was no 22nd amendment? Sure, Bush is hugely unpopular, but he likely would be doing things a bit differently without term limits in place.

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