The Law

Most people have heard of concepts such as ‘the rule of law’, ‘respect for the law’, perhaps even ‘a government of laws, not of men’. The idea being that ‘the law’ is a noble thing, worthy of respect, the safeguard of civilization. Even non-libertarians (who reject the idea that ‘the law’ should be the law of nonaggression) hold that the law is something stable, something that helps defend the basic institutions of society over the centuries.

How is it possible to reconcile the above with the ever changing and ever increasing statutes and regulations churned out by politicians and administrators? Far from being majestic and worthy of respect, the actual law is normally a sordid mass of commands worthy of contempt.

By what right does the state tell people to do a certain thing or not do another thing? Whether it be to not cut meat on a wood surface, or to only make cheese in a certain way, or whatever?

The normal reply (which can be traced back to John Locke and others) is that government gets its authority from ‘the people’, but even if one believes (which I do not) that the majority have the right to tell everyone how they should live their lives down to every last detail of civil interaction, it is hard to see how this fits in with the world as it is.

Even in nations with democratic governments ‘the people’ do not tend to vote on the laws. Even the elected politicians who form the ‘legislature’ in such nations do not debate or even vote on most of the laws. The vast, ever changing and ever growing web of rules and regulations that control people’s lives are mostly created by administrators elected by no one.

John Locke stated that the power of the legislature could not be delegated as it was already delegated power (‘the people’ had delegated their power to the legislature). However, we are told (if ever someone raises the point) that the modern state is too big and complicated to operate without the power of ‘delegated legislation’ in the hands of administrators That would seem to be a good argument against the size and complexity of the modern state – at least to those people who claim to hold ‘democracy’ as something almost sacred.

However, even if all laws were made by the legislature (rather than by administrators) this would not mean that the law would either just or stable. Otto Von Bismark said that laws are like sausages – people who like them should not watch whilst they are being made.

When Oliver Wendell Holmes Jr examined the actual laws of the United States in the 19th century, he found that he could not use any process of ‘induction’ to find general principles of law as his Harvard teacher (one ‘Christopher Columbus Langdale’ if my memory serves) told him he would be able to.

What O.W. Holmes Jr found were the statutes of politicians. Laws passed in order to be seen to ‘do something’ about some problem and thus win a few votes at election time (however useless or actually harmful the ‘something’ would actually be), or laws created as the product of some corrupt deal with special interests, or laws created by politicians who really wished to ‘do good’ but were fatally ignorant, and indeed laws passed simply on a whim… all in all, a mess.

And this was in the 19th century and in the United States. A time and place where the claims of ‘the law’ to control every detail of human action were rather more limited than they are in any nation today. Our modern politicians place no limit on their ability to help people by passing new laws.

Sadly O.W. Holmes Jr seems to have reacted to his study of the state of law by drawing the conclusion that the whole idea of principles of law was rather less practical than had been thought. ‘The Common Law’ (1881) is a much more radical book than it seems. It is not that the book suggests wild statist experiments, it is that the book downplays the idea of principles of law restraining the actions of government in specific cases. As Justice Holmes was later to say ‘general propositions do not decide concrete cases’ (O.W. Holmes Jr., Lochner v. New York, 198 U.S. 45, 76 [1905]). This is the death of the idea of a government of laws, not of men – instead of principles we have the feelings of politicians and judges.

Because politicians had passed statutes that showed no respect for the principle of a limit to the sphere of government, and the courts had upheld such statutes this somehow meant that such statutes were legitimate. In short because there were power hungry politicians and weak (or worse) judges, the whole study of the law should be based on their actions. Not how to prevent these actions, but simply accepting them.

Because Mr Holmes could not find principles of law via a process of ‘induction’ (i.e. by the careful examination of the stinking mess that politicians actually produce), he (partly at least) turned away from the basic tradition of American Constitutional Law – and most of the legal profession has followed him.

We still have endless talk about ‘rights’ (not just in the United States, but in many nations) – but the idea that their are constitutional limits to the FUNCTIONS of governments is largely defeated. When Americans complain that the courts have upheld the constitutionality of the government spending taxpayer’s money on some unconstitutional program, or passing some unconstitutional statute or regulation, they forget that in the rest of the world such disputes are almost unknown. “Of course the government can spend money on anything it likes, it is democratic, is it not?”

Nor is it different for regulations. A single regulation can destroy a business (and with it the lives of many people), but no British court would think of opposing such a regulation. There are people in Britain who oppose regulations which come from the European Union (the orders of the E.U. are the claimed authority for most regulations that British Civil Servants produce), but opposing the orders of Parliament itself? Certainly not.

Chief Justice Sir Edward Coke in the early 17th century may have held that there were limits to the power of Parliament to order people about and he may once have spoken for the basic common law tradition (people from various parts of what was once known as the liberal tradition have been citing Cook for centuries – men as varied as Thomas Jefferson and F.A. Hayek), but the opinions of Sir Edward would be considered absurd in any British court today. The idea that government can not grant a monopoly – of course it can. Or the modern version – the idea that government should not be allowed to break up a large company (in order to please the commercial rivals of this company who will have given support to powerful political folk). How absurd, of course government must be allowed to proceed with its ‘antimonopoly’ work.

So if the politicians tend to be people interested in increasing their power and in winning votes by seeming to ‘do something’ by passing laws supposedly to cure various ‘social problems’ – well (to quote an old enemy of liberty) ‘what is to be done?’.

Clearly relying on judges is no sure safeguard. It is not only that judges are either appointed by the government or are vote seeking people themselves. The tradition of legal education has decayed, either principles of law will not be taught – or they will be principles such as ‘social justice’. Principles not as limits on government power, but as excuses for government power. For all the talk of ‘civil liberties’ such areas of ‘negative’ rights have become very narrow and confused. Even ‘freedom of speech’ tends to collapse (in the eyes of the legal-political-academic-media establishment) when it is (for example) ‘hate speech’ in areas such as race, religion, gender, homosexuality and so on.

Nor (as has often been pointed out) can such a concept as ‘free speech’ be separated from the traditional property rights culture that it came from. If I am in your house and start to bore you with one of my lectures are you ‘violating my freedom of speech’ by telling me to either stop lecturing you or leave? However, if you come to my house and I choose to state opinions with which you do not agree are you violating my rights by telling me to stop talking or leave?

What may be said in a house depends (in the end) on whose house it is. Just as what is said in a newspaper depends (in the end) on whose newspaper it is. Talk of ‘freedom of speech’ separate from the context of property rights simply leads to confusion and absurdity. I am told there was even a recent case before the United States Supreme Court in which the judges could not even understand the difference between burning a cross on a farmer’s field with his consent and burning a cross in the back garden of a family that had not given their consent – to the judges either both actions were lawful or neither were (I would have hoped that it would be obvious to anyone that the first action was not a violation and the second action was a violation – violation of property rights).

If modern legal profession people can not be trusted understand such concepts as free speech – what can they be trusted to understand?

The practice of following precedents ( i.e. the judgements of judges) clearly will not work in the modern world.

Perhaps we need a wise ‘law giver’. Someone who will write out the principles of law with both true insight and clear language (so that most people may understand). Someone like the great French thinker Frédéric Bastiat who in his work ‘The Law’ stated the basic principle of law better than any legal scholar or political philosopher I know of.

Justice (according to the common law tradition of thought at least) is to refrain from violating the body or the goods of another person or group. Something that is simple enough to say, but hard to apply to the complexities of the concrete circumstances of actual cases. To decide for example ‘was this a case of fraud’ is often very difficult indeed (not all violations of goods are simple thefts – ‘he promised to give me a pound of beef if I gave him a loaf of bread, I did give him the bread, but he went away and never gave me my beef’ is also a violation). But the principles of law being hard to apply does not mean they cannot be applied or that there are no principles of law.

However, is a lawgiver going to be a follower of the same tradition of thought as Bastiat? Is it not more likely (at least in the modern world) that someone writing a law code would be a lawgiver of the type that Rousseau would have liked?

Even some libertarians have been so influenced by the notion that a crime is whatever the government says is a crime (a notion that goes back to such philosophers as Hobbes and was once understood to be the mortal enemy of the common law), that they state that even such things as murder or rape are just civil disputes to be settled by compensation.

The whole notion of crime and punishment may have become so corrupted that the only way forward is to treat everything as a tort in civil law. However, whatever may have been the case among the Anglo Saxons I do not think that many people today would accept payment to let off someone who murdered their parent, or their child. And as for giving a women money as compensation for the act of rape… – well I think that this shows that not just statists, but also libertarians, can produce very silly ideas.

However, my own support of the old tradition (supported by all the Founding Fathers of the United States) of juries acting as judge of both the ‘facts of the case’ and ‘the law of the case’ can be attacked as silly.

What would old H.L. Mencken have said of the idea? Would he not (as he so often did) argue that whilst most people may be less corrupt and have less lust for power than most politicians (after all it takes a rather perverted person to go through the twisted and sordid process of getting oneself elected to office), most people are also even more stupid and ignorant than most politicians.

I end with no answers to offer the reader.