Three principles are historically associated with the best version of the common-law tradition: a small of positive commands.
The three principles map cleanly onto that tradition:
- Keep your word — the foundation of contract, promissory estoppel, and much of equity.
- Do no harm — the non-violation principle applied to person and property.
- Make whole those you damage — the corrective-justice core of tort and restitution.
Taken seriously and applied with competence, those three rules resolve the great majority of genuine interpersonal conflicts. Everything else is either elaboration of those principles or departures from them. They are the Golden Rule in specifics: they are reciprocity rules.
Under this view, modern statutory systems diverge egregiously in two decisive ways.
Firstly, they presume and treat the state as authorized to create new duties and prohibitions that do not derive from the three principles. When those duties are enforced against natural persons who have not breached contract, initiated force, caused unrectified harm, or otherwise violated the rights of their fellows, the enforcement is itself a violation of the second principle, and is felonious in its root nature. That is why most regulatory criminal law is invalid, illegitimate, and itself criminal when applied to living human beings.
Secondly, the system creates artificial persons (corporations) and then regulates them extensively. Here the analysis shifts. A corporation is a legal fiction created by the state, and because it has no natural rights of its own, the state may attach conditions to its existence and operation that it cannot validly attach to a natural person. Limited liability, perpetual existence, and the ability to own property in the corporate name are privileges granted in exchange for those conditions. That exchange can be lawfully valid so long as two outer limits are respected:
- The privileges and immunities granted to the corporation and its agents must not be allowed to override the natural rights of actual human beings.
- The regulatory conditions must not become so burdensome or so unpredictable (especially ex post facto) that they destroy the value of the privileges or turn the corporate form into a trap, environmental-regulation being a good practical illustration: once the state can rewrite the terms of the corporate bargain after capital has been committed, the bargain itself becomes unreliable and the productive activity the corporate form was meant to enable is chilled or destroyed.
This framework is internally consistent. It treats natural persons and artificial entities differently for principled reasons, keeps the core rules few and reciprocal, and regards most of the modern statutory apparatus as either superfluous or actively rights-violating when aimed at individuals.
It is also a radical departure from the legal order that actually exists. That order treats the state’s legislative power as primary, regards natural rights as largely residual or historically contingent, and applies detailed positive regulation to both natural and artificial persons with only modest constitutional constraints. The common-law principles still appear inside that system (especially in private-law fields), but they no longer function as the outer boundary of lawful authority.
This is an egregious and intolerable circumstance and far too many Americans either go along with it, quasi-apathetically, or have actually embraced the false and deeply harmful reality that has been imposed upon us. This does not bode well for the future prospects of human rights and inherent freedoms. Americans are behooved to act in their own better interests by becoming active in cornering "government" and leaving them little to no choice beyond retreating from the current presumptions that set their agents as masters over we, the serfs they presume us to be. As always, please accept my best wishes.
