Note: Updated and revised version included as chap. 13 of Legal Foundations of a Free Society (Houston: Papinian Press, 2023).
***
“Legislation and the Discovery of Law in a Free Society,” J. Libertarian Stud. 11, no. 2 (Summer 1995): 132–81. For a condensed version of this essay, see “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010; archived comments) and “Legislation and Law in a Free Society,” 45 The Freeman 561 (September 1995).
Note: I have since changed my mind on the some of the issues regarding the Hayekian “knowledge problem” and Leoni’s work in this regard, as I noted in a subsequent article, “Knowledge, Calculation, Conflict, and Law,” footnote 5 and accompanying text:
This is why private-property rights serve Barnett’s goals of peace and prosperity: private property rights permit conflicts to be avoided (peace) and allow genuine, free-market money prices to form which can be used for economic calculation and hence rational resource allocation (prosperity).
Concentration on the information-conveying role of prices instead of calculation obscures this role.[5] For example, Hayekians claim that prices contain economic information in “condensed” (or encrypted, encoded, or abridged) form. Barnett follows the Hayekians when he states that “the knowledge-disseminating function of prices is largely unknown . . . the knowledge embedded in prices is not explicit. . . . It is encoded knowledge.”
5. Leoni seems to similarly attribute Hayekian knowledge-related concepts to Mises:
“[T]hat the central authorities in a totalitarian economy lack any knowledge of market pricesin making their economic plans is only a corollary of the fact that central authorities always lack a sufficient knowledge of the infinite number of elements and factors that contribute to the social intercourse of individuals at any time and at any level. (Freedom and the Law, 89 passim.)”
See also Kinsella, “Legislation and the Discovery of Law in a Free Society,” esp. 157–60, in which I, too, influenced by Leoni, conflated Hayekian and Misesian ideas in overstating the analogies between central economic planning and central law-creation. See note [25] below, and accompanying text, concerning the possibility of deducting more concrete legal principles from (themselves deduced) abstract rights.
Oh, that I had heeded Jeff Herbener’s comments on an earlier manuscript, but I either got these comments too late, or did not fully appreciate them at the time. (More information on the calculation debate; see also Knowledge vs. Calculation, Mises Blog (July 11, 2006).)
A condensed version of this article was published as “Legislation and Law in a Free Society,” 45 The Freeman 561 (September 1995), and later as “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010).
[Update: See also Peter G. Stein, “Roman Law, Common Law, and Civil Law,” Tul. L. Rev., 66, no. 6 (1991–92): 1591–1604, pp. 1591–92:
When a common-law lawyer is asked to identify the most obvious difference between the common law and the civil law, he will probably answer that the civil law is based on Roman law whereas the common law is relatively immune from Roman influence. Several recent Roman-law writers, however, have noted that the Roman law of the classical period, the first two centuries A.D. when it reached its highest point of technical development, is in many respects closer in character to the common law than it is to modem civil-law systems that are derived from Roman law. There are of course significant differences between the classical Roman law and the common law, and recently Professor Watson has argued that the stress on similarities “leads to serious misunderstandings of the two systems, and of legal development in general.”1
If the comparisons are confined to the structure of the two systems in their formative periods, it is suggested, there remain some important similarities.2 They can be briefly listed. First, both systems were built up through the discussion and decision of cases, and the law was perceived as essentially law discovered through debates among experts over particular sets of facts rather than as general rules laid down by a legislature. … in both systems the major part of the law actually emerged out of recorded discussions of cases. Therefore, both systems produced narrow rules whose limits were continually being modified by further debates. In both systems it was assumed that the relevant law existed, but was not yet articulated, and that its precise scope needed definition.]
For related articles, speeches, lectures, and interviews:
- Another Problem with Legislation: James Carter v. the Field Codes (Oct. 14, 2009)
- Classificationism, Legislation, Copyright, C4SIF (Oct. 25, 2011)
- KOL371 | Austrian Economics Discord Conference: Law, Decentralized and Centralized
- KOL221 | Mises Brasil: State Legislation Versus Law and Liberty
- KOL368 | Legislation vs. Law, with Robert Breedlove, of the “What is Money” Show
- KOL001 | “The (State’s) Corruption of (Private) Law” (PFS 2012)
- KOL129 | Speech to Montessori Students: “The Story of Law: What Is Law, and Where Does it Come From?”
- KOL020 | “Libertarian Legal Theory: Property, Conflict, and Society: Lecture 3: Applications I: Legal Systems, Contract, Fraud” (Mises Academy, 2011)
- KOL221 | Mises Brasil: State Legislation Versus Law and Liberty
- KOL199 | Tom Woods Show: The State’s Corruption of Private Law, or We Don’t Need No Legislature
- KOL187 | Anarchast with Jeff Berwick Discussing IP, Anarcho-libertarianism, and Legislation vs. Private Law (2012)
Further resources:
- Seth S. Brostoff, “The Encyclopedist Code: Ancien Droit Legal Encyclopedias and Their Verbatim Influence on the Louisiana Digest of 1808” (2020), discussing the influence on the Louisiana Digest of “three French legal encyclopedias popular during the Ancien Régime: Lerasle’s Encyclopédie méthodique: Jurisprudence (8 vols., 1782–89), Jean-Baptiste Denisart’s Collection de décisions nouvelles (1st ed., 6 vols., 1754–56), and Joseph-Nicolas Guyot’s Répertoire de jurisprudence (2d ed., 17 vols., 1784–85).
- Is English Common Law Libertarian? (Powerpoint; PDF)
- Bruno Leoni, Freedom and the Law
- Watson, Alan, The Importance of “Nutshells”
- Herman, Shael, The Louisiana Civil Code: A European Legacy for the United States
- Giovanni Sartori, Liberty and Law
- Alan Watson, Roman Law and Comparative Law
- The Story of Law, by John M. Zane (also online)
- Arthur Hogue, The Origins of the Common Law
