From: Another Problem with Legislation: James Carter v. the Field Codes, Mises Blog (Oct. 14, 2009) (archived comments below).
There is a fascinating paper published in 1884 by James C. Carter, The Proposed Codification of Our Common Law: A Paper Prepared at the Request of The Committee of the Bar Association of the City of New York, Appointed to Oppose the Measure. This paper was an attack on David Dudley Field’s attempt to (legislatively) codify New York’s common law. Carter opposed replacing case law with centralized legislation. Carter notes that caselaw precedents are flexible and allow the judge to do justice (see also John Hasnas’s classic The Myth of the Rule of Law), while statutes are applied literally, even where injustice is done or the legislator did not contemplate this result. Thus, Carter argues, one of the worst effects of legislatively codifying law–replacing organically developed law with artificial statutes–is that it changes the role of courts and judges from one in which the judge searches for justice into mere squabbles over definitions of words found in statutes. As he said at pp. 86-86:
At present, when any doubt arises in any particular case as to what the true rule of the unwritten [i.e., judge-found, common-law developed] law is, it is at once assumed that the rule most in accordance with justice and sound policy is the one which must be declared to be the law. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle. The contention is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched exchange for the manly encounter upon the elevated plane of principle!
For more on problems of legislation, and discussion of legal codes and codification efforts, see my Legislation and the Discovery of Law in a Free Society; and the articles collected here; also my posts Book Recommendations: Private, International, and Common Law; Legal Theory and The UN, International Law, and Nuclear Weapons.
In particular, for further related commentary, see my Legislation and the Discovery of Law in a Free Society, e.g., note 78 and related text, which reads (edited here):
See Peter H. Aranson, Bruno Leoni in Retrospect, at 675. See also Lawrence M. Friedman, A History of American Law, p. 404 (discussing James Carter’s view that legislated “[c]odes impaired the orderly development of the law; they froze the law into semipermanent form; this prevented natural evolution. . . . A statute drafted by a group of so-called experts was bound to be an inferior product, compared to what centuries of evolution, of self-correcting growth, could achieve. . . . [T]he social and economic legislation of the late 19th century . . . were doomed to failure; they were hasty intrusions, and they contradicted the deeper genius of the law.”); and Bruce Benson, The Enterprise of Law, p. 282 (“public production of law undermines the private property arrangements that support a free market system”). An interesting discussion of, inter alia, the debate on whether to legislatively codify the common law is found in Mark D. Rosen, “What Has Happened to the Common Law?—Recent American Codifications, and Their Impact on Judicial Practice and the Law’s Subsequent Development,” 1994 Wis. L. Rev. 1119 (1994).
For further discussion of Leoni’s ideas in this regard and related issues, see Gottfried Dietze, The Necessity of State Law, in Liberty and the Rule of Law, supra note 36 (ch. 3, p. 74); Gordon Tullock, “Courts as Legislators,” in Liberty and the Rule of Law (College Station, Texas: Texas A&M University Press, Robert L. Cunningham ed. 1979); Giovanni Sartori, Liberty and Law, and chapter 13 of idem, Democratic Theory; Leonard P. Liggio, “Law and Legislation in Hayek’s Legal Philosophy,” 23 Southwestern U. L. Rev. 507 (1994); Murray N. Rothbard, “On Freedom and the Law,” New Individualist Review (Winter 1962, vol. 1, no. 4) 37 (reviewing Leoni, Freedom and the Law).
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Update: See also the comments of Samuel Read, quoted in Samuel Read on Legal Positivism and Capitalism in 1829:
… we observe every day men, and even legislators, pretending to reason concerning political justice and the general principles of law, as if there we no such distinction as that which has been here pointed out, and who seem to have scarcely the most distant comprehension that there is a natural code discoverable by the light of reason, to which alone reference ought to be had when any law … is brought into question either for the purpose of enactment or repeal. Instead of reasoning like legislators, such persons merely contend as lawyers; they but inquire what is, or what has been, not what ought to be; and, provided they can find a precedent, think they have no need to trouble themselves with any farther investigation as to right or wrong. They pronounce the two cabalistic words, “vested right,” and think themselves at once entrenched behind an impregnable fortress, without considering it as at all incumbent upon them to show that the investiture is consistent with real and natural right.
UPDATE: See also KOL361 | Libertarian Answer Man: Oaths: With Kent Wellington
See also: KOL199 | Tom Woods Show: The State’s Corruption of Private Law, or We Don’t Need No Legislature; KOL188 | Free Talk Live on Restitution, Punishment, and the Common Law.
And:
“[T]he mere fact of legislation—of democratic law-making—increases the degree of uncertainty. Rather than being immutable and hence predictable, law becomes increasingly flexible and unpredictable. What is right and wrong today may not be so tomorrow. The future is thus rendered more haphazard. Consequently, all around time preferences degrees will rise, consumption and short-term orientation will be stimulated, and at the same time the respect for all laws will be systematically undermined and crime promoted (for if there is no immutable standard of right, then there is also no firm definition of crime).”
—Hans-Hermann Hoppe, “Time Preference, Government, and the Process of De-Civilization from Monarchy to Democracy,” 5 J. des Economistes et des Etudes Humaines (1994): 340, also in Democracy: The God That Failed
(from The Superiority of the Roman Law: Scarcity, Property, Locke and Libertarianism):
See also Hans-Hermann Hoppe’s comments regarding common law and civil law, quoted in Roman Law and Hypothetical Cases:
From Economy, Society, and History (Mises Institute, 2021; https://www.hanshoppe.com/esh/), p. 111: 1
This is the structure that the initial founding cantons in Switzerland had, where all free men swore an oath that they would come to mutually assist each other in case of an attack against them. And these cities frequently had written law codes, that is, Magdeburg Law or Hamburg Law or Hanover Law or Lübeck Law, etc., so that people who moved to these cities knew what law code would apply to them, and when new cities were founded, the normal thing to do was to adopt one of the already existing law codes and maybe make a few amendments to it. That is, some law codes became the law codes, not just of one city, but of many, many cities, who adopted the initial example of a place that first took the initiative to write these laws down.
In this connection, let me make a little side remark. In English-speaking countries, America and England, there is a certain amount of pride in having the so-called common law, which is, in a way, noncodified law, or case law. The Continental tradition, as you know, has been for a long time different. There, we have had codified law taken from the Romans, especially from the East Romans who had codified this law for the first time in an extensive manner and then, of course, in modern times, the Napoleonic Code, which has been taken over by most Continental European states in one form or another with some modifications. And, as I said, Anglo-Saxons looked down on codified law and hailed their own noncodified common law. I want to just remark that, for instance, Max Weber has a very interesting observation regarding this. He sees the reason for the noncodification of the common law in the self-interest of the lawyers to make the law difficult to understand for the layman and thus make a lot of money. He emphasizes that codified law makes it possible for the layman on the street who can read to study the law book himself and go to court himself and point out, here, that this law is written down. So, maybe this excessive pride that the Anglo-Saxons have in their common law might be a little bit overdrawn.
October 15, 2009 at 8:53 am-
I’ve long felt that the concept of “general police power” of the legislature is inappropriate. The powers of the legislature should be sharply circumscribed, and perhaps divided among separate specialized bodies (i.e. legislative committees should be made into separate standalone entities).
Furthermore, any bill passed by the legislature should be merely a recommendation, and should not have the force of law until ratified by a citizen referendum. And there should be an automatic 10-year sunset provision in every law to allow it to be reconsidered periodically.
October 15, 2009 at 9:18 am-
Why no mention at all of the citizen ‘jury’ in applying justice & law {??}
That is a huge error in this article.
Modern codified law has lots of problems, but granting even more autonomous power to government legal bureaucrats {“judges”} just makes thing much worse for justice and the citizenry.
If judges/juries have any reasonable doubt at all about the meaning of a specific codified law — the proper & just action is to completely dismiss any and all indictments initiated under that “law”.
Any law, statute, or regulation that a court judge cannot readily understand and apply… is, by legal definition, grounds for immediate dismissal. Vague laws automatically trigger “reasonable doubt” on their meaning, and bar any convictions.
If legislators cannot clearly state their requirements in specific legal codes, then such codes are instantly void… and the judicial branch is obligated to reject them in practice. Judges absolutely do NOT have the authority to interpret, re-write, repair, band-aid, create or guess at the meaning of vague laws.
Sloppy work by legislators is unacceptable in a fair & just “Justice” system.
- October 15, 2009 at 9:21 am
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A statute drafted by a group of so-called experts was bound to be an inferior product, compared to what centuries of evolution, of self-correcting growth, could achieve
BTW, this is exactly what I was saying back in the thread about corporations. I was arguing against statutory corporation laws, and you kept trying to drag me into a discussion about the common law of vicarious liability, which I didn’t care about.
Please see:
http://blog.mises.org/archives/009070.asp
and scroll down to my comment at December 9, 2008 12:37 PM.
October 15, 2009 at 10:05 am
October 15, 2009 at 10:35 am-
Excellent post. I have been wanting to see more on common law and LvMI comes through once again!
Stephen: This may be deeper in your sources, but can you post how Hayek’s LLL fits in this?
October 15, 2009 at 2:36 pm-
Good stuff. As I’ve been saying for some time now, common or customary law is a process, not a set of rules. Adoption of common law precedents by an authoritarian legal system simply adopts what has been developed up to that point, but not the process itself, ensuring stagnation, and ultimately, injustice.
- Based on this lecture, The Production of Law and Order: Natural Order, Feudalism, and Federalism, starting at 1:07:30. [↩]
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