Legislation vs. common law

Paul Marks of Samizdata writes about the negative consequences of legislatures. Some of the things he says probably have a degree of shock value to most readers, because most people have been taught from the time of their youth that the purpose of government is to 'make laws.' I grew up learning how a bill becomes a law, how the Senate and the House must both pass the bill, and how the President must sign the bill for it to become a law. There was even a Schoolhouse Rock bit about it - "I'm just a bill, Yes, I'm only a bill, And I'm sitting here on Capitol Hill..." Thus, for any problem that anyone might have, Congress makes a law that the president signs. That is how problems are dealt with.

Thus, I'm sure many people will be shocked upon reading the Pauls' words - "Having a group of people elected to pass laws is a terrible system" - because it goes against the very heart of what we've been told all these years, and because it is in direct opposition to the Constitution that devoted a full third of government for that very purpose. Perhaps the initial interpretation of that sentence will be a conjuring of thoughts of the Wild West and an assumption that libertarians desire a lawless, chaotic society. Nothing could be further from the truth. Just about all libertarians want desire a society with law, i.e., standards by which just actions are delineated to allow individuals to interact with each other. The key to resolving the apparent contradiction is the distinction between legislation and common law.

If law is thought of as a spectrum, at one end is legislation. Legislation is law that is made by a few men for the many. It is harsh and scabrous and screams with the capriciousness of youth. Unrefined in its manner and fickle in its affectations, it caters to the select few who are powerful enough to whisper in its ear. It is enacted by decree and imposed on society without any principles as its foundation.

As Lysander Spooner wrote:

What, then, is legislation? It is an assumption by one man, or body of men, of absolute, irresponsible dominion over all other men whom they call subject to their power. It is the assumption by one man, or body of men, of a right to subject all other men to their will and their service. It is the assumption by one man, or body of men, of a right to abolish outright all the natural rights, all the natural liberty of all other men; to make all other men their slaves; to arbitrarily dictate to all other men what they may, and may not, do; what they may, and may not, have; what they may, and may not, be. It is, in short, the assumption of a right to banish the principle of human rights, the principle of justice itself, from off the earth, and set up their own personal will, pleasure, and interest in its place. All this, and nothing less, is involved in the very idea that there can be any such thing as human legislation that is obligatory upon those upon whom it is imposed.

At the other end of the spectrum of law is the common law, which is found by judges, not by lawmakers. It builds through the successive rules of judges. Slowly, year after year, and generation after generation, judges rule on practical real-life cases such as - "Is Smith violating Jones's property rights by raising snakes in his own yard forcing rats onto Jones's property?" or "Does the merchant owe the buyer restitution if the good sold to him stops functioning after 3 months?" First principles are applied, whether they be the Non-Aggression Principle, the Golden Rule, etc. Only the parties involved in the case are effected. It is not a conscious purpose of the judges to make rules of living for everyone, but with accumulation of rulings and evolved wisdom of the common law, that is exactly what slowly emerges. Over the years, rulings are made, precedents are set, and experience builds into a common law literature.

Common law arises out of the bonds of the common people. It is discovered from the application of principles of justice and evolves over time. It is a tradition based on history, descending first from custom, and eventually written into law. Continuity remains with the past and seamlessly paves the road to the future. Common law is the laboratory in which just applications of first principles are identified. It is the garden in which bad law is weeded out and good law is cultivated. It is not an abrupt imposition, but rather a gradual process. The common law is like a pearl growing inside an oyster, as slowly year by year layer upon layer is added to result in something with wondrous beauty. And as society evolves, the flexibility and dynamic nature of common law allow it to evolve in parallel.

Law as it exists today is heavily biased toward the legislation end of the spectrum. Approximately 600 individuals create rules imposed on hundreds of millions, not discovered upon application of principles of justice, but arbitrarily created, often to cater to the highest bidder or special interest group. So when libertarians denounce legislation, it is not because they seek to do away with law, but rather because they wish for law to return to a state in which it is discovered by reason, founded on principles of justice, and evolves with society.

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I get the feeling that

I get the feeling that Libertarians feel like those in our elected governement were randomly selected by some arbitrary force.

I also get the feeling that Libertarians believe that once a law is written into law it can never be repealed or adjusted.

No doubt Common Law has advantages in neighborhood disputes but how does it resolve issues involving the larger population?

For example, laws are needed to define how foreign nationals can enter the country.
Laws are also needed to finalize budgets, standardize infrastructure, and protect children.

My fear is that Libertarians expect "holy" behavior from its citizens. It only takes a small percentage of the population to misbehave and destroy the lives of the majority around them. (i.e. Enron!)

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I get the feeling that Libertarians feel like those in our elected governement were randomly selected by some arbitrary force.
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No, just that they wield arbitrary force.

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I also get the feeling that Libertarians believe that once a law is written into law it can never be repealed or adjusted.
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In theory, sure a law (and I assume you mean legislation when you say 'law') can be repealed; in practice, it rarely is, even when the large majority of the population ceases to follow it.

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For example, laws are needed to define how foreign nationals can enter the country.
Laws are also needed to finalize budgets, standardize infrastructure, and protect children.
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Again, nobody is saying laws aren't needed. It is *how* laws are best enacted that is under debate. Common law isn't just localized to small neighborhoods, although it does have a very decentralized nature. When you talk about 'infrastructure', common law again has a lot of advantages. In desert regions like the American southwest, common law can develop specialized to the needs of a population with a limited water supply. Irrigation and drainage rules, procedures for water use, and standards for common source sharing evolve in a specialized manner. Surely this is better than people in Washington 'making' these rules for the people of the Southwest.

Same with the treatment of children. Yes, their rights need to be protected. The question of course is 'how' best to do so. Should parents be held accountable for their child's actions? If so, up to what age? What should be the punishment? Is allowing their child to pursue a trade rather than high school a crime? Should this be limited to certain trades and not others? There is no *arbitrary* answer. For someone in Washington 'make' rules that apply to *everyone* is a one-size-fits-all solution that cannot evolve and get better over time. The common law serves as a laboratory in which different solutions can be tested at different times and in different places. Only with evolution can the better laws be filtered from the rest.

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My fear is that Libertarians expect "holy" behavior from its citizens.
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Quite the opposite. Libertarians realize more than most that man is imperfect.

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It only takes a small percentage of the population to misbehave and destroy the lives of the majority around them. (i.e. Enron!)
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Again, nobody is saying laws are not needed. Surely you don't believe that libertarians support the Enron executives. They carried out fraud, and should go to jail.

Spoonie Luv said: "My fear

Spoonie Luv said:
"My fear is that Libertarians expect "holy" behavior from its citizens."

My fear is that Statists expect "holy" behavior from politicians handed arbitrary power to enact laws over others, huge amounts of other people's money to do it with, and the ability to use force to secure compliance.

Spoonie Luv said:
"It only takes a small percentage of the population to misbehave and destroy the lives of the majority around them."

You're right, the government is only a small percentage of the population, and they misbehave and degrade or destroy the lives of many, many people every day.

I am going to keep this

I am going to keep this simple and easy to digest:

America now has more "law & order" on the books than ever before. Look around you: tell me how well it's working.

I am here to point out to you that this is what happens when you hire hundreds of drones to sit around and write laws for more than two centuries.

Get it?

Now, I have a question:

How long do you think this can go on?

Billy, I agree with you. It

Billy,
I agree with you. It can't go on forever. But as the 70 year span of full-fledged communism in the USSR shows, people are often willing to put up with arbitrary laws and violence for far too long. Hopefully, America sees reality for what it is much sooner.

"I get the feeling that

"I get the feeling that Libertarians feel like those in our elected governement were randomly selected by some arbitrary force.
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No, just that they wield arbitrary force."

But so would judges if they decided the law. If the law is whatever the judge says it is the judge can become king or really an absolute dictator. If the judge's power is limited then it is limited by law, which would normally be some for of legislation or constitution.

Legislation has its problems, and common law has some advantages but I think you exaggerate both. Legislation has the advantage that it is response to the will of the people. You could (and sometimes we do) have elections for judges but then they may just act more like politicians.

I think I should make an effort to distinguish between judicial decisions and common law. Common law would come from judicial decisions and perhaps other traditions, but just because something is a judicial decision doesn't mean that it is based on anything like the normal conception of common law. Even if our system where law is normally set by legislation by congress or by the state legislatures, judges can legislate from the bench. You might say this is not what you are arguing for, that you are arguing for real common law, but how would you create such a system? Moving to a system where judges make the decisions is possible but it might not lead to a real common law system. You might wind up giving up democracy without gaining common law, rather then keeping both.

Tim, Legislation has its

Tim,

Legislation has its problems, and common law has some advantages but I think you exaggerate both. Legislation has the advantage that it is response to the will of the people. You could (and sometimes we do) have elections for judges but then they may just act more like politicians.

I think I should make an effort to distinguish between judicial decisions and common law. Common law would come from judicial decisions and perhaps other traditions, but just because something is a judicial decision doesn't mean that it is based on anything like the normal conception of common law. Even if our system where law is normally set by legislation by congress or by the state legislatures, judges can legislate from the bench. You might say this is not what you are arguing for, that you are arguing for real common law, but how would you create such a system? Moving to a system where judges make the decisions is possible but it might not lead to a real common law system. You might wind up giving up democracy without gaining common law, rather then keeping both.

If you have read other posts on this blog, you may have noticed that I regard democracy in very low esteem. It is precisely because common law is undemocractic that I prefer it.

I do not see democracy as any kind of 'will of the people' because the 'will of the people' does not exist. Only individuals have wills. When individuals act collectively, they still act on their own free will, and for their own individual reasons. Modern societies have interpreted this collective action as somehow representing a unified voice. If 51% of the population desires to lock up the rest for hurting themselves, is that the 'will of the people'? Is that justice?

This democratic legal framework of law called legislation has become the means where the mob gets to impose their will on others without any regard to ethics. Thus, I hold both democracy and legislation in low regard.

Yes, common law has its disadvantages, but I much prefer its decentralized nature to legislation.

thedefinition of legislation

thedefinition of legislation law you have based your argument is just dictatorship! legislation is based of democracy and the conscience of the citizens. The legislators are elected by the people but not that they impose them selves to be legislators.

Hi Lest Keep The Common Law,

Hi Lest Keep The Common Law, That We Need To Keep The Judges I Plase.

Jonathan - "If you have read

Jonathan -

"If you have read other posts on this blog, you may have noticed that I regard democracy in very low esteem. It is precisely because common law is undemocratic that I prefer it."

I hold freedom in much higher esteem then democracy but even a minimal government is going to have to make some decisions and I would prefer those to be made by either representative or direct democracy rather then by arbitrary judicial dictat. Its not freedom vs. democracy. Its authoritarianism vs. democracy. Giving up democracy might easilt cause you to also have less freedom.

Yes, common law has its disadvantages, but I much prefer its decentralized nature to legislation.

Democratic legislation can be decentralized and judicial decisions can be very centralized.

I really wonder how, even in theory, you would move towards a common law system. You could change legislation or the constitution to give judges more authority but if you do that the judges might not care about any common law tradition they can just impose their personal biases.

Tim

Tim, I hold freedom in much

Tim,

I hold freedom in much higher esteem then democracy but even a minimal government is going to have to make some decisions and I would prefer those to be made by either representative or direct democracy rather then by arbitrary judicial dictat. Its not freedom vs. democracy. Its authoritarianism vs. democracy. Giving up democracy might easilt cause you to also have less freedom.

How about we vote on absolutely nothing which is backed up by the use of initial force? That would break the monopoly on law, something I believe is vital for society to progress.

I really wonder how, even in theory, you would move towards a common law system. You could change legislation or the constitution to give judges more authority but if you do that the judges might not care about any common law tradition they can just impose their personal biases.

Practically, it is very difficult to move to a common law system. Politics is dirty, and the incentives are screwed up. The only solution is to move away from politics. I think that one way to practically create common law systems is to move as many interactions and transactions as possible into cyberspace, where the only law is common law. With strong cyptography, that might just be possible.

How about we vote on

How about we vote on absolutely nothing which is backed up by the use of initial force? That would break the monopoly on law, something I believe is vital for society to progress.

I would make a distinction between what the government (whether legislative, judicial, or executive branches or some sort of combined branch) can, should, and/or will decide and how it will make the decision.

You can push the libertarian idea of no initial use of force under either a common law or a legislative system. You can also push for either type of system without the "no initial use of force " idea.

I think that one way to practically create common law systems is to move as many interactions and transactions as possible into cyberspace, where the only law is common law.

I don't think the only law in "cyberspace" is common law. I also don't think moving away from "politics" to rule by judges makes things any less screwed up or otherwise supports freedom. Judges are often unrestrained by legislative or constitutional law, why would they be so much more restrained by common law, and even if they would be what makes you think the common law would be so libertarian?

Tim

[...] Don Boudreaux at Cafe

[...] Don Boudreaux at Cafe Hayek notes that there is more to law than legislation (as Jonathan has also noted): Law is so much more vast than legislation, and s [...]