The Rise of Limited Government
Frohnen, Bruce, The World and I
Political history in the West has largely consisted of attempts to put into action the religious principle--going back as far as Moses and the Ten Commandments--that rulers must obey the higher law. Israelite leaders, like their people, often violated the commandments and their covenant with God. But there grew up institutions--judges and prophets--to hold rulers and people to the higher law and bring them back to it when they strayed. In the Christian world, the higher law tradition grew into a fundamental separation between religion and politics. From this arose a separate church hierarchy that pronounced rules of conduct binding on rulers as well as subjects. On several occasions popes officially deposed rulers and encouraged people to rebel against them because the rulers had committed serious crimes against the higher law.
Within this millennium, religious institutions have not been alone in limiting rulers' powers. Customs developed into a set of generally accepted standards of conduct binding rulers. Local authorities resisted encroachments by central governors on their customary practices, and local associations--such as craft guilds and townships--secured charters allowing them significant autonomy. And within government itself there arose the principle of separation of powers according to which political functions must be divided so that no one man or institution can exercise them all.
THE RISE OF CUSTOMARY LAW
The Christian church in the West built a body of canon law on the basis of the Ten Commandments. Clerics developed rules putting God's law into action in particular circumstances and relationships and further limiting rulers' powers. For example, the church refused to recognize marriages not entered into voluntarily, even when the monarch or his official sought the union. Rulers were bound to respect the dignity and free will of their subjects, even when this interfered with their dynastic ambitions.
Particularly in England, over time canon law came to be integrated into the customary or common law of the land, which was developed after the Norman conquest by judges who ruled in individual cases in the light of precedent or custom, with minimal recourse to statutes; it continued to evolve through the end of the eighteenth century and into the present day. Common law consisted primarily of local customs governing disputes over property ownership, contracts, and procedures in the courts. These customs developed into more general rules that were applied by judges (often the king or local nobles) in particular cases.
One important set of rules in common law related to contracts. When one person or organization contracted with another, it was assumed that both parties knew all the contract's provisions--how many goods would exchange hands, what the price would be, and so on. If one party sought to change any of these provisions, say by telling the purchaser that he must pick up the goods rather than delivering them to his principal place of business, the other party was not necessarily bound by the contract any longer. Only if the other party agreed to this change in the contract's terms, either by saying so or by accepting the goods without protest, would the contract still be considered valid. The assumption that goods would be delivered to the purchaser's place of business was based on custom. The assumption that parties should only be held to contracts concerning which they know all the relevant provisions was based on customary notions of fairness.
The common law became so ingrained in the people's lives that nobles and kings ignored them at peril of dissension and rebellion. "The law of the land"--what lawyers today refer to as due process of law--became sacred to the people; they would fight and die to protect their right to be treated and judged according to the customary rules of their country and not merely the whim of the king.
THE STRENGTH OF THE NOBLES
It was to defend the law of the land that English nobles rebelled against King John in the early thirteenth century. …