The Resources - Common Law Review

The restoration of the fortunes of the Common Law Tradition requires both a recovery of historical awareness (which should go without saying: after all, what is a tradition without history), and recognition of the centrality of that tradition as the solution to current issues.

Regarding history: of the utmost importance is a restoration of a pan-Western, Christian understanding of the Common Law Tradition. This means that the classical liberal cooptation of the Common Law must be exposed and the confessional Christian nature of that tradition must be recovered – which is what I mean by “Beyond Whig and Marxist.” It also means that the estrangement of the classical and the Christian traditions must be overcome.

The Common Law Tradition is the backbone of Western Christendom, the heir of the patrimonies of Israel, Greece, and Rome, as mediated through the church. These two trends have worked hand in hand to split asunder the Common Law alliance and therefore pave the way for the ascendancy of its Civil Law antagonists.

To restore the Common Law Tradition to its wholeness and full-orbed historical depth, one must come to understand that the Whig cooptation of that tradition, while doing yeoman’s work to combat the ascendancy of the Civil Law Tradition, has also worked in the civil law’s favor by removing the foundations, both theological and historical, from which the Common Law gains its strength. Firstly, the Whig elimination of the public role of the church removed any grounding in a transcendent law-order and delivered over public policy to the hegemony of human rights and reason of state, the twin poles of modern politics. Secondly, the failure to recognize the existence of the Common Law Tradition outside the Anglo-American orbit played directly into the hand of the Civil Law Tradition by helping to eliminate Common-Law resistance in the countries of continental Europe.

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