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.