Still Finding Freedom
There are two strands in American law, one coming out of the British feudal experience, which expressed itself through Coke's parliamentary absolutism, whereby the all and whole of life becomes taxed, regulated, ordinanced, to a degree of minutiae and interference with free action that is insulting to any notion of real freedom. Whether enacted by a king or a legislature, whether that legislature is distant or local, this is not freedom. This is legalism strangling out authentic life. It partakes of the nature of Jormungand, the great serpent who gradually as time goes on squeezes more and more of our beloved Mother Earth, and full of as much venom.
But there is another strand that was in stubborn defiance and retreat, a strand that still held on to the Magna Charta and all the ancient rights of Englishmen, that was so surrounded by strangles of feudal law and minutiae, arbitrary powers of unnoblemen (the proper name for nidings who long ago forgot their obligation to serve the folkrights and the Gods) and unkings, and the brute force of modernism and commercialization, that it did not still know freedom in its bones, but it remembered an inkling, and it held on to that with dear life. This current then came to America, and in America, a people holding on to its last remnants of the tribal rights guaranteed by the Magna Charta discovered peoples and tribes who actually still knew freedom, and actually still held on to their ancient rights, and this, along with the wide open spaces of forest and meadow, in whose loving, brambled embrace the frontiersman might escape out beyond the pale of the law of strangulation, inspired the essence coagulated into the ambered sap of Magna Charta to come alive again within the folk. The book Indian Givers gives a good introduction to the notion that it was living Native American societies that allowed English folk (English, Irish, Scottish, as well as Dutch, German, French, etc.) to begin to rewild. It was this reawakening of the spirit of Magna Charta that made for our revolution, for the guarantees of the Bill of Rights within the Constitution, and for the strong clinging to rights and freedom that are written all over our history.
But this liberatory invocation of freedom often remains rhetoric in the face of the other strand with which it, in contradiction, co-exists : the plenary power of legislation (according to Coke, and according to actual municipial practice in the United States) to touch everything within its grasp as it so chooses, and this banal totalitarianism sometimes masks itself as a form of "democracy". Ancient folk may have had more sense and simply called it "meddling", an attempt to regulate everything in life externally, in advance, outside the good sense, wisdom, prudence, and spontaneity of the free actors involved in a situation.
This feudal, Cokeian totalitarianism of banality is pervasive and expresses itself in endless ordinances, codes, and libraries of statutes. Such baroque legalism is certain to produce contempt for law (which it is not, although it is power) in the hearts of those who are truly free. Much of the rhetoric of freedom remains unrealized promise, untapped potential, the mere echo of a promissory note that hints at unheard-of vaults of freedom.
Freedom is something we are still learning. This is what the land told me when I went out to it today. I went up into the hills, hills which always preserve the older, wilder forms of life, and in that broad splay of color and vegetation, grounded, gnarled chaparral, and million-years-old sandstone geology, I saw, with my eyes of heart and eyes of contemplation, that Loki's serpent has managed to wrap its tendrils skillfully and pervasively around much of life, strangling it out, and therefore, we are still learning freedom.
There was/is a movement, variously called the "patriot" or "common law" movement that has generated a fascinating literature. These are folks who largely, I think, sense the discrepancy between these two strands of law, one a strong defense of freedom, the other that which strangles freedom, and have created an expressive literature around these contradictions that has too often degenerated into a crippling literalism. Finding themselves surrounded by endless mesh of legal barbed wire, and looking to the spirit invoked in '76, they said, this cannot apply to a freeman. This cannot apply to someone grounded in Magna Charta. This intuition is correct! There is a fundamental contradiction. But they then began to imagine a kind of legal prestidigitation, a kind of juggling of legal process, where, with the right passwords and the invocation of appropriate legal jargon, they could reinvoke their ancient rights, and bypass the statutory chains that increasingly surround a dungeon they once felt was called "America". Such ungrounded hocus-pocus has largely proven a fool's errand that has ended a lot of people up in jail, to which many have responded, "Oh, well, they didn't have the right hocus-pocus," and go forward to brew up more legal incantations. Meanwhile, they distribute unchecked fakelore that cites some cases accurately, selectively quotes out of context from other court cases, and in some cases constitutes almost complete fabrication. I call it "fakelore" because it distributes itself like folklore, is often as unchecked, but lacks the authenticity, groundedness, or proven experience of folklore that has had time to mature. I might more kindly call it fakelore reaching after folklore, perhaps, with some greater practical intelligence and savvy, on its way to becoming folklore. The citation of fake court cases and out-of-context court cases is deplorable, and the publishing of such material used to be considered, quite rightfully in my mind, contempt of court, because it constitutes a danger to report a court case declaring one thing when in fact it declares another. This is not an impingement upon freedom of speech or press, because one maintains the right to disagree with a court case, and even to hold widely differing interpretations of the ruling, but it must be grounded upon an authentic reporting and citation of the ruling itself. Why is this important? If you distribute literature that purports that certain rights may be recognized in court, but this is not true, and then people, trusting that literature, go out and act upon that purported confirmation of right, they may end themselves up in a lot of legal trouble. It's fraudulent and unbrotherly.
But this does not mean that the common law movement is all nonsense. Its fetish for arcane legal incantation may put many off, and the unfortunate fact that many of its early strands did indeed seem to stem out of racist Christian Identity groups really ought to make one genealogically suspicious, but it is, I think, an error to dismiss in toto, because there is an element here of folk education in common law, and a reinvocation of ancient rights which really are ancient rights! They are so ancient that many of them predate Christianity! One of the errors these folks make is assuming that people in power must follow the rules. This is an incredibly naive stance. People in power follow power, and consult their lawyers when it seems like someone might call them on it, and then they utilize technicalities to engineer what they wanted to do anyway. The idea that people in power can be constrained with the mere invocation of a legal formula is sophomoric idealism : adorable, in a way, but dangerous. When power is actually checked through popular scrutiny, power tends to approximate rules, and then let the lawyers do the clean-up.
I suspect that a lot of people in power dislike the common law movement not primarily because of the racism of some of its genealogical strands, but because it carries the threat of ordinary people calling on the law, and interpreting it according to their strong, ethical sense of freedom. It threatens to take law out of the hands of elite professionals, who serve the strangling serpent, and regenerate authentic law, as decided by empowered juries. Here Lysander Spooner's important historical treatise on the ancient rights of juries gives actual grounding to popular movement. However, until such time as jurors all over the country know their actual rights and history, and are willing to invoke them in open court in defiance of magisterial, Cokeian judges, of what actual effect is such submerged knowledge? It remains that boiled-down essence, that coagulated sap, that the colonists carried with them that still requires full awakening. Until empowered juries begin nullifying statutory arrogance, on an unprecedented scale, in alignment with protest groups petitioning for redress of grievances in the streets, such that it really, authentically becomes the "second house" or "popular branch" of the judiciary, as some have put it, and thus begins to put popular checks on legislative mania, we will remain tangled in legal codes and statutory brambles largely dreamed up by the lobbyists of the rich, who certainly have little interest in non-wealthy classes retaining anything of authentic freedom.
Learning how to become free men on the land is of utmost importance. It is a project that I suspect will take some time. And it will require some grounding in indigeneity that racists (conscious or no) who simply assume the legitimacy of "Manifest Destiny", never investigating actual original title issues in this country, will probably not find. The question of the true holders of odal rights in a country is of some extreme importance in determining your law and your foothold on any land, for if you come in with the conqueror, and only on the basis of that conquest, there is some reason to believe that one is walking in under color of feudal law, with fealty to the sovereign/conqueror, rather than any legitimate rooting in the land itself. This is an extremely complex issue that is barely ever talked about in the United States, except, of course, by Native American tribes. It is worthy of note that treaties, under the Constitution, are above all statutory law, and within a heathen context, represent sacred oaths that, as Voluspa indicates, anger Thor to a pitch of rage when parties unilaterally break them. Considering the countless treaties that have been broken by Washington, it might be a bit humbling for a heathen to realize that the term grið-níðingr, or "truce/treaty-breaker", is one of the strongest forms of legal abuse or disapprobriation that existed amongst ancient heathens.
What is your law? What is your land? These are fundamental questions, questions the answers to which most have no clue.
The literature of the common law movement makes for a fascinating read that is not entirely unprofitable, so long as one's critical mind is alert to its errors and naivetes, for there is to be found therein a legitimate reaching after the ancient rights, which can both educate heathens, as well as be more greatly informed by knowledge of heathen culture. This is not to say that I endorse the literature ; only to note it as an important curiosity that might inspire an authentic populism, if it were more grounded in a shrewd study of history. Moreover, many of its tenets, while not literally able to banish the statutory chains that bind us, would make for meaningful popular legal debate, and such debate about the fundamentals of law could be incredibly fructifying.
Here a critical note may be of some value. The lack of attention given in the heathen community to the study and restoration of heathen law is both baffling and deplorable. Magna Charta itself is little known and studied, with the pre-Conquest Anglo-Saxon law which Magna Charta was largely fortifying, being a no-man's land ; deeper still, the Gragas and Frostathing laws remain largely untranslated, let alone available or studied, not to mention the very important Saxonspiegel, the Code of Jutland, the Frisian laws, and all the laws of the Germanic tribes as written down in Latin. Why should such be a priority for heathens? With law the land shall be inhabited, begins the Code of Jutland, and when heathens complained to Christian kings about their usurpations, they referred to their religion as their law. The two were inseparable, because the Gods protected those who lived freely within the law. The law-assemblies, after all, were places of sacred invocation of the Gods, where the Gods watched very closely the decisions come to by men. "What you bind on earth shall be bound in heaven", adjusted for idiom, is not just a Christian sentiment, but an authentically heathen one. Where we have authentic law-assemblies and they hand down discovered and authentic heathen law, we shall be held accountable. Where we do not have and have not reconstituted authentic law-assemblies, we shall also be held accountable.
Law and freedom should not be in contradiction ; the one should protect the other. We are still relearning freedom. The greatest tasks in reconstituting the culture and spirituality of our ancestors remain ahead. Who will speak up as pioneer? Who will take hold of the ancient embers and carry the torch forward?
These are not dry, abstract matters, the dust of musty archives, the split-hairs of scriveners. These are matters of the heart, that emerge more prominently the greater you bring your soul into relation with the land and its many spirit-guardians (collectively, the "heath"). Authentic law bubbles up from the deepest layers of Wyrd. Such a torah is indeed written on the heart, and not to be found in the arbitrary enactments of meddlers, whose love of freedom is overshadowed and buried by their compulsion to control. Real law controls the wolves and grinds down monsters, releasing the free ; law turned on its head and made into unlaw controls the free and grinds down the folk, releasing the monsters. Look around and decide which strand has greater power, and then make your choice as to which side you will lend your weight. Follow your heart.