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Legislation and the Discovery of Law in a Free Society

by on January 8, 2021

Note: Updated and revised version included as chap. 13 of Legal Foundations of a Free Society (Houston: Papinian Press, 2023). Text from ch. 13 appended below.

***

“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.]

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TEXT OF CHAPTER 13

13

Legislation and the Discovery of Law in a Free Society

Originally published in the Journal of Libertarian Studies in 1995, this was one of my earliest scholarly publications and my first in that journal, written just a year after I had met Hans-Hermann Hoppe and Murray Rothbard; Hoppe was then the new editor of the JLS after Rothbard’s passing in January 1995.*

I had become fascinated with the Roman/civil law (the law of Louisiana and continental Europe) and the English common law and its possible connections to libertarian political and legal philosophy. I conceived of this project in law school (1988–91) at LSU, a civil-law law school, when I was still more under the thrall of Ayn Rand and her type of rationalism. At first I thought the more “rationalist” civil law was more compatible with a reason- and deductivist-based approach to politics and law than was the common law. One of my law professors, John Devlin, suggested I read Oliver Wendell Holmes’s The Common Law to counterbalance some of these views. This helped me gain an appreciation of the English common law and decentralized legal systems in general. I ended up concluding that decentralized legal systems—the original Roman law, and its offspring, European civil law and the later English common law—were more compatible with natural principles of justice favored by libertarianism than legislated law. This article was an attempt to highlight what is good in these ancient systems of law and what we can draw on and use in our libertarian theorizing.†

 

 

*    Stephan Kinsella, “Legislation and the Discovery of Law in a Free Society,” J. Libertarian Stud. 11, no. 2 (Summer 1995): 132–81. See “How I Became a Libertarian” (ch. 1) for further details.

†   I later studied and wrote about international law and have also written and spoken about aspects of international law of interest to libertarians. See, e.g., Noah D. Rubins, Thomas N. Papanastasiou & Stephan Kinsella, International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, Second Edition (Oxford University Press, 2020); Kinsella, “KOL250 | International Law Through a Libertarian Lens (PFS 2018),” Kinsella on Liberty Podcast (Sep. 26, 2018); idem, “International Law, Libertarian Principles, and the Russia-Ukraine War,” StephanKinsella.com (April 18, 2022).

For a condensed version of this chapter, see “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010). For later talks based on the content of this chapter, see “KOL001 | “The (State’s) Corruption of (Private) Law” (PFS 2012),” Kinsella on Liberty Podcast (Jan. 11, 2013), “KOL221 | Mises Brasil: State Legislation Versus Law and Liberty,” Kinsella on Liberty Podcast (May 17, 2017), and “KOL020 | “Libertarian Legal Theory: Property, Conflict, and Society: Lecture 3: Applications I: Legal Systems, Contract, Fraud” (Mises Academy, 2011),” Kinsella on Liberty Podcast (Feb. 21, 2013).

The original author’s note thanked “Professor Saúl Litvinoff and Jack Criss, Jr. for helpful comments on an earlier draft of this article.”

 

 

  1. Introduction 295
  2. Centralized and Decentralized
    Legal Systems 296
  3. Civil Law and Common Law 296
  4. Civil Law, Rationalism, and
    Libertarianism 298

III. Law, Legislation, and Liberty     301

  1. Anarcho-Capitalism 302
  2. Certainty 303
  3. Certainty, the Rule of Law, and Legislation 303
  4. Decentralized law-finding systems 306
  5. Limits of Courts’ Decisions: Jurisdiction, Scope of
    Decision, and Precedent 306
  6. Government Courts: Extra-Market Powers and
    Disguised Legislation 308
  7. Civil Codes 310
  8. The “Special” Status of a Civil Code 310
  9. Diluting Effect of Special Statutes 311
  10. Negative Effects of Uncertainty 312
  11. Sanctity of Contract 312
  12. Time Preference and the Structure of Production 313
  13. Time Preference and Crime 315

 

  1. Central Planning and Economic Calculation 316
  2. Central Planning and the Impossibility of Socialism 318
  3. Legislation as Central Planning 320
  4. Special Interests and the Unrepresentative Character
    of Legislation 324
  5. Decentralized Law-Finding Systems 325
  6. The Proliferation of Laws 327
  7. Naive Rationalism and The Primacy of Legislation 329
  8. The Role of Legislation and Codification 332
  9. The Role of Legislation 332
  10. The Secondary Role of
    Legislation 332
  11. Alleged Deficiencies of Decentralized Law-Finding
    Systems 334
  12. Structural Safeguards to Limit Legislation 338
  13. The Role of Commentators and Codes 340
  14. Common Law vs. Civil Law 345
  15. Conclusion 350

Appendix: Legislative Supremacy in the Civil Code            350

 

 

Justice must stand quite still, or else the scales will waver
and a just verdict will become impossible.

—Franz Kafka[1]

 

  1. INTRODUCTION

Libertarians’ devotion to individual rights, and to laws in support of those rights, is unquestionable. Most of the laws favored by libertarians can be shown to be consistent with our individual rights—unlike the blatantly illegitimate laws advocated by socialists. Despite this, however, many libertarians overlook important procedural or structural requirements that must accompany any legal system in which substantively justifiable law can develop and last.

In particular, the danger and futility of making law by legislation is too often ignored, even by libertarians (other than anarcho-capitalists, who oppose the existence of any government on principle, including its legislature).[2] Libertarians often, for example, advocate that the legislature enact this or that law, or they at least support many statutes that are already in force, such as statutes prohibiting murder. The concept of separation of governmental powers into the legislative, executive, and judicial branches, which many libertarians support, implies that legislation can be a valid function of a libertarian government. But as Italian legal theorist Bruno Leoni noted in 1961:

It is … paradoxical that the very economists who support the free market at the present time do not seem to care to consider whether a free market could really last within a legal system centered on legislation.[3]

Leoni argued that legislation as such is incompatible with freedom. If this is correct, then even statutes that seem to embody libertarian principles simultaneously subvert those principles.

There is another way of forming law, however—in which law is “found” or discovered, rather than “made”—which does not depend on legislation or legislators. This is the way of decentralized legal systems such as customary law, Roman law, and the English common law.

In this chapter I will examine the two ways of forming law—centralized (i.e., legislation-based) and decentralized—and will argue that only the latter is compatible with libertarian principles. I will also examine the proper role for legal codification in light of this conclusion.

  1. CENTRALIZED AND DECENTRALIZED
    LEGAL SYSTEMS
  2. Civil Law and Common Law

In modern times the two dominant legal systems in the world are the common law and the continental civil law. Based on the body of English case law that developed gradually over the centuries, the common law spread to English colonies and commonwealths like America, Canada, Australia, New Zealand, and India. Modern civil law systems are based in part on Roman law, which, like the common law, developed many of its important legal principles in the accumulated decisions of jurists in thousands of cases over centuries (and which predates the common law by centuries).[4] Virtually all of Europe and many other jurisdictions, including Louisiana, Puerto Rico, Quebec, Scotland, and Latin America, have a civil-law system. The civil law systems are usually based on civil codes, such as in Japan. The earliest of these codes was the French Napoleonic Code of 1804.

In the common law and Roman law, there eventually evolved very sophisticated bodies of legal principles, concepts, methodology, and precedents. Because the classical common law and Roman law developed the large bulk of their legal principles through the decision and discussion of cases, they serve as rough examples of decentralized systems of “judge-found” law, as do largely private customary law systems like the Law Merchant.[5]

Unlike Roman law and the common law, however, modern civil law principles are embodied in a statute called a Civil Code, and the civil law enshrines legislation as the primary source of law. [6] In these systems, legal scientists elegantly codify the preceding body of legal principles developed mostly in a decentralized fashion (via the Roman law) and customary European law, but then the legislature enacts this code as a statute and makes legislation the primary source of law. The modern civil law is thus a good example of an explicitly centralized legal system, even though much of the substantive provisions of civil codes are based on legal principles discovered in decentralized fashion in Rome many centuries ago. Roman law thus has more in common with the common law and customary law than with the Roman law’s offspring, modern civil law, since the former were decentralized law-finding systems, while the latter are centralized, legislation-based law-making systems.[7] Today’s common law, while based on the classical and mostly decentralized Anglo-American common law, is also coming to be more and more dominated by legislation and, to that extent, is gradually being centralized as well.

Thus, previously, law was thought of as a body of true principles ripe for discovery by judges, not as whatever the legislator decreed. Nowadays, however, legislation has become such a ubiquitous way of making law that “the very idea that the law might not be identical with legislation seems odd both to students of law and to laymen.”[8] And, one might add, to many libertarians. As discussed below, however, a legislative system is incompatible with libertarian principles and destroys true Law. This holds true for all legislation-based legal systems, even civil law systems, which typically embody fairly libertarian principles, much as the original body of common law does. Although the civil codes of civil law systems codify, in elegant form, principles developed in the relatively decentralized Roman legal system, civil codes are still merely statutes in a system in which legislation is the primary source of law. Thus even civil codes, the most elegant and liberal exemplars of centralized legislation, are subject to the general criticism of legislation presented in this chapter.

  1. Civil Law, Rationalism, and Libertarianism

Before concluding this section and proceeding to general criticisms of legislated law, I want to briefly note the tendency of civilians to regard the civil law as a great “rationalist” system.[9] Civilians consider modern civil law to be “rational” or even “rationalistic” for various reasons, including the views that civil law: is rationally and systematically codified,[10] rather than “unscientifically” developed in an uncoordinated fashion by decentralized judges; is “certain” and clear because the rules are written;[11] and is proclaimed by the legislator. Civil law systems such as the Louisiana and French systems are also praised as being drafted “in the spirit of the Enlightenment,”[12] and as resting on an ideological commitment to democracy,[13] economic liberalism,[14] private property,[15] freedom of contract,[16] individualism,[17] natural law,[18] and justice.[19]

Most libertarians would agree that such virtues are genuinely justifiable and thus ought to be supported by any legitimate legal system. Moreover, civilians are also correct that these liberal principles are consistent with rationalism, because libertarian principles can also be justified with rationalist arguments.[20]

Under the libertarian conception of individual rights, the virtues typically cited in favor of the civil law are certainly necessary requirements of a just legal system. The virtues of economic liberalism, private property, freedom of contract, individualism, natural law, and justice are really only secondary derivations of the basic individual rights to person and property. Natural law is nothing more than the objective truth that each individual has certain rights—i.e., to own himself and to homestead unowned property or acquire it by contractual transfer. Justice is nothing more than giving a person his due, but what a person’s “due” is depends upon what his rights are.[21] Individualism has meaning and validity, because it is individuals that have rights. Economic liberalism, private property, and freedom of contract are only the playing out of the fact that individuals have a right to own, and thus trade, private property, and indeed have a right to do anything that is not aggression. Economic liberalism is only a consequence of the government’s lack of authority to hamper free trade and association between individuals.[22]

Any system of law must be compatible with the rights that individual humans have, and, to that extent, law should be “certain”—that is, we should be certain that law will protect our rights and will not infringe them. The more general goal of “certainty” in the law is merely an aspect of the rule of law, which is necessary for any civilization to survive. Without certainty and the rule of law, individuals are not able to predict the results of their actions and are thus unable to rationally plan for the future.

In Part III, below, I argue that centralized legal systems like the civil law and, increasingly, the legislation-dominated common law systems are antithetical to the values of justice, natural law, individual rights, and certainty. Civilians generally support these values, yet they also support the idea of the primacy of legislation which will tend to destroy these values. But how can the civil law be the great system of reason and rationalism, how can it support economic liberalism and individualism, if the civil law is based on legislation, which undercuts these things? Although worshipers of legislation claim to be rationalists, only a naive sort of rationalism, the same naivety that is behind the desire of socialists to “scientifically” plan market activity, can underlie such claims.[23]

Civilians are correct that reason and even rationalism justify the tenets of individualism, individual rights, economic liberalism, private property, and natural law. Contrary to claims of civilians, however, it is a completely private, decentralized law-finding system that is compatible with and that fosters such virtues and principles. Therefore, as will be shown, it is non-legislative, decentralized law-finding systems that are imbued with the spirit of reason and true rationalism. Legislation-based systems are not compatible with either libertarianism or rationalism, or with our natural human rights.

III. LAW, LEGISLATION, AND LIBERTY

In this Part, I explain the various reasons why legislation is incompatible with individual rights and the related standards that any valid legal order must uphold. Each criticism of legislation applies equally to the civil law, because the civil law is a centralized (i.e., legislative) law-making system, and also applies to modern common law systems to the extent that legislation has supplanted (decentralized) case law as the primary source of law.

  1. Anarcho-Capitalism

In the opinion of many libertarians, a principled and consistent application of libertarian principles invalidates not only most of today’s (legislated) laws, but also the state itself, since government is an agency of institutionalized aggression.[24] The state, by its mere existence, rests on aggression and necessarily initiates violence against innocent individuals (e.g., taxation; monopolizing law). The state cannot exist without aggression, and if aggression is illegitimate, then so is the state.[25]

As most libertarians are aware, this view is known as “anarcho-capitalism” or anarchist libertarianism, since this form of anarchism follows from a respect for individual rights that are also a feature of laissez faire capitalism. It almost goes without saying that, if government may not exist, neither may legislation, because only a governmental legislature can enact statutes. There is simply no room for government and legislation in the moral universe. This does not mean, however, that there would be no law if there were no government. Certainly law can develop in a decentralized court system, whether a government-based common-law system or a private system. As Rothbard explains:

[I]t is perfectly possible, in theory and historically,[[26]] to have efficient and courteous police, competent and learned judges, and a body of systematic and socially accepted law—and none of these things being furnished by a coercive government.[27]

The remainder of this Part is devoted to additional critiques of legislation that do not depend on anarcho-capitalism but only on the general rights and principles accepted by libertarians in general. In other words, one does not need to be an anarchist libertarian to oppose legislation as a means of making, developing, or identifying law.

  1. Certainty
  2. Certainty, the Rule of Law, and Legislation

Certainty, which includes clarity and stability in the law, is a necessary feature of any just legal order, as it is a crucial component of the rule of law itself. “The rule of law” is a phrase that is used with varying meanings:

(1) the absence of arbitrary power on the part of the government to punish citizens or to commit acts against life or property; (2) the subjection of every man, whatever his rank or condition, to the ordinary law of the realm and to the jurisdiction of the ordinary tribunals; and (3) a predominance of the legal spirit in English institutions….[28]

The rule of law is necessary because a government with arbitrary power to inflict violence on its subjects is a standing threat to individual liberty. And if laws are not equally applicable to all men and women, some individual rights will not be respected, because all men and women have certain inalienable, natural rights by their very nature as humans. Clearly, then, the rule of law must be maintained by any just legal system. But the rule of law “cannot be maintained without actually securing the certainty of the law, conceived of as the possibility of long-run planning on the part of individuals in regard to their behavior in private life and business.”[29] Thus, a direct implication of rationalism is that the law should be certain.

Even those favoring legislation recognize the importance of certainty; indeed, certainty is one of the purported hallmarks of the civil law. In the words of Professor Vernon Palmer:

What enduring objectives underlie the relentless drive toward codification in the twentieth century? In my view, this may be explained in three words—certainty, justice, and modernity…. An unchanging purpose of codification and recodification is to overcome an existing fragmentation of law and legal sources in order to create the conditions necessary for legal certainty.[30]

Yet, as Leoni points out, there is much more certainty in a decentralized legal system, than in a centralized legislative system. When the legislature has the ability to change the law from day to day, we can never be sure what rules will apply tomorrow.[31] As Leoni observes, in a system of legislative supremacy:

[N]obody can tell whether a rule may be only one year or one month or one day old when it will be abrogated by a new rule. All these rules are precisely worded in written formulae that readers or interpreters cannot change at their will. Nevertheless, all of them may go as soon and as abruptly as they came. The result is that, if we leave out of the picture the ambiguities of the text, we are always “certain” as far as the literal content of each rule is concerned at any given moment, but we are never certain that tomorrow we shall still have the rules we have today.[32]

Thus:

[A] legal system centered on legislation, while involving the possibility that other people (the legislators) may interfere with our actions every day, also involves the possibility that they may change their way of interfering every day. As a result, people are prevented not only from freely deciding what to do, but from foreseeing the legal effects of their daily behavior.[33]

We may have, then, either rule by legislators or the rule of law, but not both.[34] In the words of the Italian scholar Giovanni Sartori, “Mass fabrication of laws ends by jeopardizing the other fundamental requisite of law—certainty.”[35]

  1. Decentralized law-finding systems
  2. Limits of Courts’ Decisions: Jurisdiction, Scope of Decision, and Precedent

By contrast, judicial decisions—whether by private arbitrators in an anarcho-capitalist society or by judges in a government-established common-law system—are much less able to cause legal uncertainty than is legislation. This is because, as Leoni explains, the position of common-law or decentralized judges “is fundamentally different from that of legislators, at least in three very important respects.”[36] First, judges can only make decisions when asked to do so by the parties concerned. Second, the judge’s decision is less far-reaching than legislation because it primarily affects the parties to the dispute, and only occasionally affects third parties or others with no connection to the parties involved.[37]

Regarding this second point,  let me point out that this is true only for the plaintiff, however, in systems where a verdict may be enforced against a defendant regardless of his consent to the court’s jurisdiction—i.e., where courts have compulsory jurisdiction over certain individuals. But even this power is of a drastically lesser scope than the ability of legislators to enact statutes at any time, without being requested by anyone, and that affect everyone, not just plaintiffs and defendants. Further, in a totally private court system, courts do not necessarily have to have the ability to assert jurisdiction over unwilling defendants.[38] And even in a government court system such as the common law, it is not absolutely necessary that the courts have compulsory jurisdiction over unwilling participants. By contrast, legislation by its nature arrogates to itself jurisdiction over all the government’s subjects.

Third, a judge’s discretion is further limited by the necessity of referring to similar precedents.[39] This does not necessarily mean that a judge is automatically bound by a prior judicial decision on similar facts, but that at least such precedents are influential. When law is viewed as being found rather than made, it makes sense that one court would refer to principles already discovered and developed over the centuries by other judges. Because individuals crave certainty and predictability, they will tend to prefer decisions of courts that respect the wisdom of established custom and precedent, where possible. Thus, even a government court will feel a necessity to refer to similar precedents, so that its judgments and reasoning will be respected. A private court will have even more incentive to respect relevant precedents so as to gain and retain customers.

But a court’s essential job is to issue a just decision rather than automatically following precedents through blind obedience. Indeed, under the Roman law, and under the common law as it existed at the time of Blackstone, an individual decision was not absolutely binding on future courts.[40] Even the great common-law advocate “Blackstone was not a slavish adherent of the principle of stare decisis (decision according to precedent)—a prior decision could be overruled if ‘contrary to reason’….”[41] But Blackstone did favor stare decisis as a means of subordinating judges to law and for stability in the law:

For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments….[42]

In this sense, the civilian concept of jurisprudence constante is more likely to be adhered to by private courts than stare decisis. (Stare decisis contemplates adherence by a court to a principle of law announced and applied in a single occasion in the past. Under the doctrine of jurisprudence constante, the rule of law upon which repeated decisions in a long line of cases is based is entitled to great weight in subsequent decisions.[43]) In any event, it is very likely that judges will always attempt to distinguish or at least criticize similar precedents even if they choose not to follow them.[44] As mentioned above, this will tend to limit the judge’s discretion to “make” law.

  1. Government Courts: Extra-Market Powers and Disguised Legislation

Thus, decentralized law-finding systems offer more certainty than centralized law-making systems. As the discussion above shows, however, in a government-backed common-law type of decentralized system (as opposed to a wholly private court system), the common law itself can develop legislative characteristics that tend to undermine certainty just as legislation does. This is because common-law courts are government courts and thus have extra-market powers, such as the power to subpoena, the power of compulsory jurisdiction over defendants, and the power of judicial review.

Supreme courts, for example, may engage in what is really disguised legislation. The United States Supreme Court does this all the time.[45] However, this is not a problem of decentralized law itself, but of involving government in the court system. Under anarcho-capitalism, with a system of totally private courts and judges, these problems would be minimized as much as is possible in the real world. And, as Leoni points out:

[E]ven supreme courts are not at all in the same practical position as legislators. After all, not only the inferior courts, but also the supreme courts, may issue decisions only if asked to do so by the parties concerned; and although supreme courts are in this respect in a different position from inferior courts, they are still bound to “interpret” the law instead of promulgating it…. [Further,] under a system of “binding” precedent, supreme courts too may be bound … by their own precedents…. [T]his makes for a considerable difference between judges of supreme courts and legislators as far as the unwelcome imposition of their respective wills on a possibly great number of other dissenting people is concerned.[46]

Thus, even under a government-based decentralized legal system such as the common law, judges’ ability to “legislate” is radically different from that of legislators. The possibility of judges acting like legislators is not necessarily implied in the nature of decentralized law-finding systems, but “is rather a deviation from it and a somewhat contradictory introduction of the legislative process under the deceptive label of lawyers’ or judiciary law at its highest stage.”[47]

Although law developed in a decentralized legal order is an “unplanned,” spontaneous order, it results in certainty, while a centralized legal system tends to destroy certainty. In a decentralized legal system:

Law develops in a case by case manner during which judges fit and adapt existing law to circumstances so as to produce an overall order which, although it may not be “efficient” in a technical, rationalistic sense, … is more stable than that created by statute…. [S]tatute law is in fact much more capricious [than common law] precisely because, in the modern world especially, statutes change frequently according to the whims of legislatures…. A structure of law which is not the result of will and cannot be known in its entirety, paradoxically, displays more regularities than a written code.[48]

  1. Civil Codes
  2. The “Special” Status of a Civil Code

Can legislation be made more stable so that it does not engender uncertainty? Written constitutions such as the United States Constitution are, after all, difficult to explicitly amend,[49] although the Supreme Court has amended the Constitution de facto hundreds of times.[50] The more stable a written statute is, however, the less it resembles legislation, and vice-versa. Civilians contend that the civil law’s core is the civil code, which is not meant to change on a daily basis. Rather, a code is more like a constitution, which changes only rarely, in response to greater urgency. The code is not a normal sort of legislation; it is more stable than legislation, and therefore is not subject to the criticism that it engenders uncertainty in the same way as does a mere legislative system.

[C]odification has for its object the creation of a permanent framework and direction of the evolution of the law. It has a prospective life, and it is not limited to a short-lived or cyclical legislation…. [C]odification is to be contrasted with simple legislation tailored to the circumstances.[51]

A civil code is more like a constitution than mere legislation:

It is a commonplace that a civil code enjoys a more exalted status than an ordinary statute. The higher dignity accorded to a code is traditional in the civil law world. This respect is due originally to the special qualities of the legislation—its relative permanence, imposing structure, and inner coherence. Statutes may be ad hoc, scattered, and temporary, but the civil code in our tradition has attained something close to the stature enjoyed by a constitution or a Magna Carta in the common-law world.[52]

However, such flattery cannot change the fact that the civil code itself provides that legislation is the primary source of law. It does not provide that codal legislation, which conforms to certain code-like requirements (e.g., generality, natural law, and the like), is the only source of law. It does not abolish mere statutes and does not take precedence over any subsequently-enacted conflicting statutes, as the U.S. Constitution does; and neither does it provide for a supermajority requirement for its amendment. From a legislator’s point of view, the civil code and more mundane legislation are on the exact same horizontal level. (Moreover, even a higher piece of legislation like the U.S. Constitution is still just legislation: written decrees announced by a government committee and enforced by the state, whether just or not.)

Thus the code itself is subject to continual revision and, indeed, is continually revised. It may not in practice be revised as drastically or as often as the other statutes, but the legislature retains the ability to change the code from day to day. For, “a code is a special kind of statute, but a statute nevertheless.”[53]

  1. Diluting Effect of Special Statutes

What is worse, even if the civil code itself were to be immutably etched in stone—and civil codes are, admittedly, amended much less frequently in some regimes than are “normal” statutes—it would tend to be swamped by subsequent special statutes. Civilians do not disagree with this point. Once a code has been produced and the laws codified, as Professor Palmer recognizes:

Fragmentation continues inexorably. Special legislation lying outside of the code piles up on all sides, as caselaw and jurisprudence create a thicker and thicker gloss upon the code texts….[T]his inflation of redundant and overlapping laws … is the true enemy of a scientific codification and the true nemesis of legal certainty.[54]

The inexorable production of specialized legislation thus dilutes any stabilizing effect of a civil code and makes the code less relevant. Given the unwieldy hodge-podge of arcane, special-interest statutes that we are faced with today, is it any wonder that uncertainty—both in what the law is today and in what it might be tomorrow—is engendered? Yet we would not have reached such a chaotic state if not for the legislature’s ability to enact its will into law.

  1. Negative Effects of Uncertainty
  2. Sanctity of Contract

As discussed above,[55] without certainty of the law, individuals are less able to make long-range plans. The uncertainty resulting from legislative supremacy also has the negative side effect of weakening the sanctity of contract. Legislation:

…destroy[s] established rules and [nullifies] existing conventions and agreements that have hitherto been voluntarily accepted and kept. Even more disruptive is the fact that the very possibility of nullifying agreements and conventions through supervening legislation tends in the long run to induce people to fail to rely on any existing conventions or to keep any accepted agreements.[56]

When legislation becomes supreme and statutes are fruitful and multiply, our very conception of what the law is changes. Unlike in the past, “we are used to having our rights modified by the sovereign decisions of legislators. A landlord no longer feels surprised at being compelled to keep a tenant; an employer is no less used to having to raise the wages of his employees in virtue of the decrees of Power. Nowadays it is understood that our subjective rights are precarious and at the good pleasure of authority.”[57]

When contractual reliance becomes more risky, “contractual exchanges requiring temporally separated future performance become less attractive, leading the parties to develop costly alternatives, such as contractual hostages (if that is possible at all under the statute), otherwise unwarranted vertical integration of production processes, or the foregoing of such exchanges entirely.”[58] Such alternatives impoverish us all by imposing unnecessary costs on production and exchange.

  1. Time Preference and the Structure of Production

Another extremely pernicious but subtle effect of the increased uncertainty of legislative systems is the increase of man’s time preference. Individuals invariably demonstrate a preference for earlier goods over later goods, all things being equal. This is the phenomenon of time preference.[59] Time preference explains the advent of interest payments, payments made to someone who loans money. When a loan of money is made, the lender gives up (more-valued) present dollars and receives (less-valued) future dollars, and thus the loan will go forward only if the lender is compensated with interest.

Men prosper materially when time preferences are lower, since when this is the case, they are more willing to forego immediate benefits such as consumption and invest their time and capital in more indirect (i.e., more roundabout, lengthier) production processes, which yield more and/or better goods for consumption or for further production.[60] We forego picking bananas to eat them now (consumption) and devote some of our present time to the building of fishing nets (capital) so we can catch more fish in the future, which can feed more people for the same amount of work as it took to search for bananas.

Any artificial raising of the general time preference rate tends to impoverish society by pushing us away from production, long-term investments, and roundabout production processes and towards consumption and more short-term investments which produce fewer and/or worse quality goods. In other words, instead of foregoing picking bananas to eat them now and instead of spending time building fishing nets to produce goods in the future, we tend to eat more bananas now and live only for the moment, and reduce our investment in the future. Clearly, when the general time preference rate is artificially raised, the populace becomes materially poorer and worse off.

Yet increased uncertainty causes an increase in time preference rates. With the very possibility of legislation, the future is made more unpredictable than it would be without the possibility of legislation. Future goods are always less desirable to individuals than present goods. But if the future becomes more unpredictable, future actions and goods become less certain to occur, and thus future goods become relatively even less desirable, and present goods therefore become relatively more desirable. As explained by Hoppe:

[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”).[61]

Leoni anticipated a similar effect of legislation. Leoni called the illusory certainty generated by written legislation the short-run certainty of the law, as opposed to genuine, long-run legal certainty. The desire for short-run certainty over long-run certainty corresponds to an immature desire for immediate gratification. Leoni writes:

I am reminded of a conversation I had with an old man who grew plants in my country. I asked him to sell me a big tree for my private garden. He replied, “Everybody now wants big trees. People want them immediately; they do not bother about the fact that trees grow slowly and that it takes a great deal of time and trouble to grow them. Everybody today is always in a hurry,” he sadly concluded, “and I do not know why.” [62]

The answer is, in part, because an increased climate of uncertainty increases the general time preference rate.

  1. Time Preference and Crime

There is also a fascinating relationship, as Hoppe above alludes to, between higher time preference and increased crime. This is because earning a market income requires more patience than does the immediate gratification that criminals seek: “one must first work for a while before one gets paid. In contrast, specific criminal activities such as murder, assault, rape, robbery, theft, and burglary require no such discipline: the reward for the aggressor is tangible and immediate whereas the sacrifice—possible punishment—lies in the future and is uncertain.”[63] As a person becomes more present-oriented, immediate (criminal) gratifications become relatively more attractive, and future, uncertain punishment becomes less of a disincentive. Thus many people on the margin—those who are just deterred from committing crimes by the threat of possible future punishment under normal time-preference conditions in a free society—will not be deterred from committing crimes in a society with legislation and its concomitant increase in time preference. In other words, there are individuals today who are committing violent crimes solely because of the increased uncertainty in society caused by the existence of legislation.[64] Further, when the increased uncertainty tends to impoverish us by shortening the structure of production, more people are poor and impoverished, which also tends to increase the amount of crime in society.

When law is based on legislation, uncertainty is increased, not decreased, even in the supposedly “certain” civil law systems. This hampers the ability of individuals to engage in private calculation, i.e., in planning for the future and in knowing the legal consequences of their future actions. It makes contractual reliance more risky and thus imposes further costs on otherwise-beneficial economic transactions. And the unavoidable uncertainty caused by legislation also raises our time preference rate, which “necessarily exerts a push away from more highly capitalized, and hence more productive production processes, and into the direction of a hand-to-mouth existence,”[65] and thus tends to impoverish us all.

  1. Central Planning and Economic Calculation

Introductory Note: In this section (Part III.C), I relied heavily on Bruno Leoni’s interpretation of Mises’s and Hayek’s views on the economic calculation problem and his related criticism of legislation by analogy to central economic planning. Subsequently, I gained a deeper understanding of the difference between Mises’s and Hayek’s approach to this issue, after Joseph Salerno initiated the “dehomogenization” debate.[66] At the time I wrote the original article, I did not appreciate this distinction and thus too-uncritically accepted Leoni’s arguments, many of which are summarized or relied on in this section, even though Austrian economist Jeffrey Herbener had sent me helpful comments on an early manuscript, pointing this out.[67] I did not at the time (1995) fully appreciate his criticisms. I now believe there are many flaws in Leoni’s reliance on Hayek to criticize legislation, when he analogizes the problems of legislation to the economic calculation problem faced by a central economic planner, because Hayek’s own approach to the calculation problem and his focus on “knowledge” is flawed. By the time I wrote the article which would become chapter 17 of this volume, in 1999, I had realized my error, and discussed the flaws with the Hayekian approach in the section “Knowledge vs. Calculation.” In sum, as several Misesian Austrians have pointed out:

Rothbard: “the entire Hayekian emphasis on ‘knowledge’ is misplaced and misconceived”

Hülsmann: discussing “the irrelevance of knowledge problems”

Salerno: “[t]he price system is not–and praxeologically cannot be—a mechanism for economizing and communicating the knowledge relevant to production plans. The realized prices of history are an accessory of appraisement”

Hoppe: “Hayek’s contribution to the socialism debate must be thrown out as false, confusing, and irrelevant.”[68]

In this chapter I have retained the following section from the original article since it still contains some useful insights and also is a good summary of Leoni’s position on this matter.

Besides the fact that the possibility of legislation breeds uncertainty and is thus harmful for this reason alone, legislators face a problem that central economic planners also face. It is an information problem, and this unavoidable problem makes it unlikely that any body of legislation will develop substantively legitimate law—i.e., a body of law consistent with principles such as justice, individualism, and economic liberalism. For the same reason that central economic planning is impossible, centrally-planned laws cannot hope to be truly based on the true interests or needs or situation of the populace. I first discuss the reason why central planning—i.e., socialism—is impossible, before analogizing socialism to legislation.

  1. Central Planning and the Impossibility of Socialism

With the collapse of communism/socialism, mainstream opinion is finally starting to realize that socialism, in addition to being incredibly immoral and wasteful of human life, simply does not work. But this comes as no revelation and no surprise to the Austrian school of economics following in the footsteps of Ludwig von Mises. As far back as 1920, Mises explained why socialism is impossible. Although Mises’s amazingly prescient ideas were arrogantly and unfortunately ignored for decades by establishment thinkers, Mises has finally been vindicated by the universally (if belatedly) acknowledged failure of socialism,[69] and I will not re-argue the obvious here, especially in a libertarian journal.

However, Mises’s explanation of why socialist central planning is doomed to failure has, as pointed out by Leoni, important ramifications for legislation as well. Thus, in this subsection I briefly discuss the so-called “economic calculation debate” before exploring its implications for legislation.

In 1920 Mises published his devastating critique of socialism, “Economic Calculation in the Socialist Commonwealth.”[70] Mises showed that, besides the incentive problem of socialism (e.g., “Who will take out the garbage?”),[71] the central planner cannot know what products or how much of them to order to be produced without the information provided by prices on a free market. In a free market, in which there is by definition private ownership of property, the free exchange of goods by individual human actors in accordance with their subjective utilities establishes relative prices, in terms of money (which historically was gold and other precious metals). These money prices are the indispensable tool of calculation for rational coordination of scarce resources, since “monetary economic calculation is the intellectual basis of the market economy.”[72] Without market prices, how can a central planning board know what or how many products to produce, with which techniques and raw materials, and in which location? These and a practically infinite number of questions are simply unanswerable without the information provided by monetary prices. As Rothbard explains:

Mises demonstrated that, in any economy more complex than the Crusoe or primitive family level, the socialist planning board would simply not know what to do, or how to answer any of these vital questions. Developing the momentous concept of calculation, Mises pointed out that the planning board could not answer these questions because socialism would lack the indispensable tool that private entrepreneurs use to appraise and calculate: the existence of a market in the means of production, a market that brings about money prices based on genuine profit-seeking exchanges by private owners of these means of production. Since the very essence of socialism is collective ownership of the means of production, the planning board would not be able to plan, or to make any sort of rational economic decisions. Its decisions would necessarily be completely arbitrary and chaotic, and therefore the existence of a socialist planned economy is literally “impossible” (to use a term long ridiculed by Mises’s critics).[73]

Defenders of socialism often countered with the bare fact of the Soviet Union’s existence and “success” as disproof of the contention that socialism is impossible. However, as Rothbard points out, Soviet GNP and other production figures relied upon as evidence of the USSR’s success were wholly inaccurate and deceitful—as the final collapse of socialism has made manifest. Further, the Soviet Union and other socialist countries have never enjoyed complete socialism, for despite their best efforts to stamp out individual initiative, free trade, and private property, the existence of black (i.e., free) markets and bribery is widespread, which prevent socialism from completely controlling and thus strangling the economy.

Also, these socialist economies existed in a world containing many (relatively) capitalist markets, such as that in the United States. Thus, the socialist planners were able to parasitically copy the prices of the West as a crude guideline for pricing and allocating their own capital resources.[74] To the extent true socialism was able to be imposed on the populace, economic calculation thereunder was impossible and the people suffered accordingly.

In the words of Mises, “Where there is no market there is no price system, and where there is no price system there can be no economic calculation.”[75] “The paradox of ‘planning’ is that it cannot plan, because of the absence of economic calculation. What is called a planned economy is no economy at all.”[76]

  1. Legislation as Central Planning

One of Bruno Leoni’s greatest achievements was to teach us that Mises’s criticism applies not only to a central planning board of a socialist economy, but also to a legislature attempting to “centrally plan” the laws of a society. Leoni notes that several economists in the early ‘20s, but especially Mises, demonstrated “that a centralized economy run by
a committee of directors suppressing market prices and proceeding without them does not work because the directors cannot know, without the continuous revelation of the market, what the demand or the supply would be….”[77] Leoni recognized that:

…this demonstration may be deemed the most important and lasting contribution made by the economists to the cause of individual freedom in our time. However, its conclusions may be considered only as a special case of a more general realization that no legislator would be able to establish by himself, without some kind of continuous collaboration on the part of all the people concerned, the rules governing the actual behavior of everybody in the endless relationships that each has with everybody else. No public opinion polls, no referenda, no consultations would really put the legislators in a position to determine these rules, any more than a similar procedure could put the directors of a planned economy in a position to discover the total demand and supply of all commodities and services.[78]

What does this mean? Leoni is pointing out that legislators, even if they wanted to enact rules that truly take into account the actual situation, customs, expectations, and practices of individuals, simply can never collect enough information about the near-infinite variety of human interactions. The legislator, like a communist central planner, can only grope in the dark. And unlike a blind man who literally has to grope in the dark but at least knows when he has finally run into a wall or found the door, the legislator (or central planner) has no reliable guide for knowing whether they have constructed the “right” law (or economic allocation) or not. Further, not only can legislators not know the actual situation of the individuals they intend to cast their legislative net over, but they cannot predict the often far-reaching effects of legislation. Legislation routinely has unintended consequences, a fact that cannot be gotten around since it is necessitated by the systematic ignorance that legislators face.[79]

The ultimate reason that the legislator and central planner are both ultimately doomed to failure is that “there is more than an analogy between the market economy and a judiciary or lawyers’ law, just as there is much more than an analogy between a planned economy and legislation.”[80] There is “more” than an analogy because legislation and central planning are really the same thing: coercively-backed commands emanating from the government that order individuals to act in certain ways that the government prefers.

In a common-law process, law develops spontaneously, much as prices arise spontaneously on a free market. Mises showed that only when individuals remain free to trade and own private property can genuine prices be discovered. Similarly, true law is discovered in a process that “can be described as sort of a vast, continuous, and chiefly spontaneous collaboration between the judges and the judged in order to discover what the people’s will is in a series of definite instances—a collaboration that in many respects may be compared to that existing among all the participants in a free market.”[81] True law cannot be designed or imposed top-down on society. The form of a legal system, like a price structure or like a language, must evolve naturally, from the bottom up. This is why the artificial language Esperanto failed to take hold.[82] The naive belief that Law can be discovered by means of government employees’ dictates is reminiscent of the joke about the new English public school, in which the headmaster announced to the students one day, “from now on, it will be a tradition at the School to wear hats on Fridays.” Legislation is artificial law and is no substitute for evolved law.

A crucial reason for the systematic ignorance of central planners and legislators alike is “the decentralized, fragmentary character of knowledge.”[83] This makes central planners and central law-makers systematically unable to ever have enough knowledge to make informed decisions that affect entire economic or legal systems. Moreover, not only is a central planner “unable” to gather information only present in a dynamic price structure, but the attempt to plan actually destroys the price structure because the private property system at the base of a price structure is outlawed. Similarly, not only does a legislator face a severe ignorance problem—he could never hope to have a comprehensive and continually updated view of all the interactions, rules, relationships, and customs that exist among the people—he also subverts the very spontaneous legal order that would form in the absence of legislative interference. Customs change, for example, because of the uncertainty introduced, because people become more suspicious and rely less on contracts, and because their time preference increases, as discussed above.[84] As Professor Aranson puts it, “Legislation saps the social order of spontaneity.”[85]

Just as a decentralized, free market economy is essential to the coordination of resources and the production of wealth, so a decentralized law-finding system is a prerequisite to allowing true law to develop. This does not guarantee that the law will be just—there are no guarantees—but at least it is possible in a decentralized law-finding system, while in a legislated system it is not.

  1. Special Interests and the Unrepresentative Character of Legislation

A problem of a legislative system that is related to the central planning problem is its unrepresentative character. Although democracy is not without problems,[86] a representative democracy is better than one that is not. Because of the information problem faced by centralized law-makers, they cannot know the people’s wishes with any accuracy or detail. “[A] legal system centered on legislation resembles … a centralized economy in which all the relevant decisions are made by a handful of directors, whose knowledge of the whole situation is fatally limited and whose respect, if any, for the people’s wishes is subject to that limitation.”[87]

Italian legal scholar Giovanni Sartori puts the point forcefully:

[W]e make the inference that when a person who allegedly represents some tens of thousands contributes … to the lawmaking process, then he is making the thousands of people whom he is representing free, because the represented thereby obey norms that they have freely chosen…. How absurd! … In empirical terms, from the premise that I know how to swim it may follow that I can cross a river, but not that I can cross the ocean.[88]

Similarly, even if citizen involvement and participation in a small community can produce liberty, “we cannot draw the conclusion that the same amount of participation will produce the same result in a large community; for in the latter an equally intense participation will entail diminishing consequences.”[89] Leoni argues that “the more numerous the people are whom one tries to ‘represent’ through the legislative process and the more numerous the matters in which one tries to represent them, the less the word ‘representation’ has a meaning referable to the actual will of actual people other than that of the persons named as their ‘representatives.’”[90]

Legislators cannot discover the will of their constituents, and, as explained above,[91] cannot know very much at all about the actual interactions and circumstances of those who they seek to regulate. At best, then, a legislator will produce rather neutral, if bumbling, intrusive, and ineffectual, laws. But we all know about lobbyists and special interest groups, and their existence ensures that legislators will not be merely ignorant idiots. Instead, they will actively seek to enact invidious statutes that benefit a select few at the expense of others and, in the long run, at the expense of all of society.

In the political process, statutes are enacted that reflect the will of a contingent majority of legislators. This provides an opportunity for various groups to demand special treatment, such as protectionism or blatant wealth transfers. Those with a vested interest in a given piece of legislation are willing to invest much time, effort, and money (e.g. for bribes) to persuade legislators to enact the legislation. Each individual in the large group outside the special interest group feels the pain of the legislation much less than the special interest group will benefit, so that there is relatively little incentive for many people to oppose the special group’s lobbying efforts, or even to educate themselves as to which lobbying efforts are taking place. Escalating efforts at forming special interest groups to lobby for specialized statutes results in “nothing less than a potential legal war of all against all, carried on by way of legislation and representation.”[92] Any legislative system in a large, modern society is doomed to succumb, to a large extent, to special interest groups rather than representing the general will of the populace.

  1. Decentralized Law-Finding Systems

As discussed above, legislative systems such as the civil law are centralized law-making systems and face many of the problems faced by central planners in general. Decentralized law-finding systems like the common law, on the other hand, are analogous to free markets in that a spontaneous order arises in both.[93] Unlike a legislator imposing his will on society, when a judge decides a case he attempts “to discover and make explicit the rule that is implicit in the practices, customs, and institutions of the people…. Law then develops through the application of the rule to new situations.”[94] But as Liggio and Palmer note:

This process reveals another analogy with the decentralized market process, for the decision of a judge in a particular case is subject to review by other participants in the legal process. One judge cannot impose his personal will or idiosyncratic interpretation of the law on the entire legal system; similarly, innovations in the market process arise through the decentralized activities of entrepreneurs and firms and are then subject to the review of consumers, investors, and other market participants. In both the market process and the common law process there is little danger of having “all your eggs in one basket,” as is the case with both socialism and legislation.[95]

Judges in a decentralized law-finding system are also less likely to be influenced by special interests than are legislators. Professor Epstein argues:

that structural features limit what the manipulation of common law rules can achieve. The more focused and sustained methods of legislation and regulation are apt to have more dramatic effects than does alteration of common law rules and thus will attract the primary efforts of those trying to use the law to promote their own interests.[96]

To the extent a court-based legal system displays legislative characteristics, which often occurs in government-based court systems,[97] it faces the same central planning problems as does legislation.[98] For example, judges that attempt in their decisions to “maximize society’s wealth” [99] face the same information problems as a central economic planner.[100]

Judges, then, especially government-employed judges, can run into the legislator’s ignorance problem when they act like legislators and pretend they are omniscient.

  1. The Proliferation of Laws

Legislation is nothing more than controls, and it is evident that controls breed yet more controls. And invariably, because of government propaganda combined with public ignorance, the inevitable failures of the nostrum of legislation are blamed, not on the interventionist government, but on freedom and unregulated human conduct. Thus even more controls are imposed to solve problems caused by controls in the first place, and the process accelerates. For example, the well-known boom-bust business cycle, with its recurrent depressions and recessions (such as the Great Depression and recent recessions), is caused not by capitalism but by government manipulation of the money supply (which is, of course, only possible with legislatively-created institutions such as the Federal Reserve).[101] When such government-caused calamities strike, the current Roosevelt or Clinton milks the disaster as an excuse for more government intervention and power.[102] Thus, legislation has a ratcheting effect whereby statutes tend to lead to further statutes, and the government sphere expands outward as these statutes cascade down from generation to generation.

Such a continual outpouring of laws has many insidious effects. As has wisely been said, “The more corrupt the Republic, the more the laws.”[103] But the reverse is also true. As special interest groups become successful, others become necessary for self-defense, and soon a legal war of all against all begins to emerge, as already discussed.[104] The ability
of legislators to change laws reduces legal certainty, which makes contractual reliance more risky and hampers useful economic transactions. Uncertainty also increases the general time preference rate, which shortens the structure of production, thereby impoverishing society. The ensuing higher time preference also increases the prevalence of criminal activity.[105]

Additionally, when so many laws exist, and with such arcane, vague, complex language, it becomes almost impossible for each citizen to avoid being a law-breaker, especially when we have the perverse rule that “ignorance of the law is no excuse.” Even government officials cannot seem to obey federal tax laws regarding household help. Almost everyone has violated a tax law, securities regulation, “racketeering” law, drug law, handgun law, alcohol law, customs regulation, anti-sodomy law, or at least traffic ordinance.[106] But when we are all law-breakers the law is discredited[107] and, what is worse, the government can selectively and arbitrarily enforce whatever law is convenient against whichever “trouble-maker” it wishes.

Furthermore, “the legislative conception of law accustoms those to whom the norms are addressed to accept any and all commands of the State, that is, to accept any iussum as ius.”[108] People become more accustomed to following orders, and thus become more docile, servile, and less independent. Once people become docile and lose their rebellious spirit, “[t]he road is cleared for the legal suppression of constitutional legality. Whoever has had the experience of observing, for example, how fascism established itself in power knows how easily the existing juridical order can be manipulated to serve the ends of a dictatorship without the country’s being really aware of the break.”[109]

Legal inflation cheapens and dilutes law, just as money inflation by the Federal Reserve dilutes dollars and causes price inflation. True law becomes smothered by legislation.

  1. NAIVE RATIONALISM AND THE PRIMACY
    OF LEGISLATION

If the arguments made herein are correct, no centralized legal system can be a rationalist system, because legislation undermines the rationalist, libertarian virtues of individualism, individual liberty, and the rule of law. Why, then, is the civil law proclaimed as the great rationalist legal system, even though it sets up legislation as the primary source of law? Why are legislation and codification hailed as superior, scientific, and rational? Why, for that matter, is legislation so popular today even in common-law regimes, as well as in our federal system? It seems somewhat strange that those who support individual liberty, justice, and the rule of law would also support the very thing that opposes and erodes these things.

In Hayek’s view, there are two types of rationalism: evolutionary rationalism (or, in Karl Popper’s terminology, critical rationalism) and constructivist rationalism (Popper’s naive rationalism).[110] Each of these two variants of rationalism is associated with a unique view of liberty. Critical rationalism, i.e., true rationalism, relates to a “British” theory of liberty that derives from thinkers such as Locke, Hume, Smith, Burke, Montesquieu, de Tocqueville, and Lord Acton, while the “French” version of rationalism, i.e., naive rationalism, derives from Rousseau, Condorcet, Hobbes, and Descartes.[111] Hayek believed that “all modern socialism, planning and totalitarianism derive” from the naive rationalism of the French tradition.[112]

Like the socialists who naively believe that the delicate order of the market, coordinated by millions of individual interactions, can be replaced by the brute force of a central planning board, naive rationalists have an almost superstitious faith in the ability of reason to impose law on society.

In Hayek’s view, the decisive influence on the French Enlightenment political theory was the philosophy of Descartes, with its extravagant assumptions about the powers of human reason. Cartesian [i.e., naive] rationalism lead to the belief that everything which men achieve, including liberty, is the direct result of reason and therefore should be subject to its control. It traced all order to deliberate human design and expressed contempt for institutions that were not consciously designed or not intelligible to reason.[113]

But naive rationalists fail to appreciate the true role of spontaneous order in human society. Because they did not understand, for example, that resources are allocated rationally only in a decentralized free market, a free market appears chaotic and unruly, as something that should be tamed and replaced with “scientific” central planning.

The belief of civilians and other proponents of centralized law-making that true law ever could be made by a legislature stems from a naive rationalism because it assigns too broad a role to deductive reason. This is not surprising, given the French influence on the development of modern civil law. Reason is our only means of knowledge, but we would not attempt, for example, to take a sick person’s temperature by closing our eyes and deducing it. Instead, we would measure it, if we realized that a pure exercise of deductive thinking cannot hope to give us this information.[114] This would be naive.[115]

A genuine market order can only be generated from the bottom up by the free interaction of private property owners. Given this fact, it is rational not to destroy this order by the top-down commands issued by a sovereign central planner. A detailed body of law, while based on fundamental norms established by and compatible with true rationalism, can only be discovered and established in a decentralized fashion; and it is clear that centralized legislative commands can only disrupt and distort the spontaneous and rational development of Law. The championing of legislation, not to mention central economic planning, thus irrationally ignores the reality that Law is compatible only with a decentralized law-finding system, and it ignores the inevitable negative effects of attempting to legislate (i.e., uncertainty, proliferation of the laws, special interest wars, unintended effects). The civil law worships legislation because of a desire to impose “order” on a field where there is already spontaneous order. This naive rationalism is not really rationalism at all: it is anti-rationalism or irrationalism.

The desire to plan, to impose order—whether economic or legal—on others, is dangerous because, in the name of reason and freedom, individual freedom is smothered. As Thomas Sowell writes:

At its most extreme, [rationalism] exalts the most trivial or tendentious “study” by “experts” into policy, forcibly overriding the preferences and convictions of millions of people. While rationalism at the individual level is a plea for more personal autonomy from cultural norms, at the social level it is often a claim—or arrogation—of power to stifle the autonomy of others, on the basis of superior virtuosity with words.[116]

Bentham is a good example of the dangerous arrogance of naive rationalism. Bentham longed to (legislatively) codify his utilitarian “greatest happiness principle” and, thus, to use legislation as necessary to sweep aside any common law in his way. He:

…evinced no misgivings about the power of reason—in particular Bentham’s reason—to decide any questions of policy de novo, without benefit of authority, consensus, precedent, etc…. Bentham is not a little the fanatic whose willingness to sweep aside the obstacles to implementation of his proposals draws sustenance from a boundless confidence in his own reasoning powers…. Bentham’s blind spot about the problem of social order is of a piece with his enthusiasm for social planning. He worried about all monopolies except the most dangerous, the monopoly of political power.[117]

Because the civil law and, indeed, all modern law, gives license to legislators, it is irrationalistic, and does not promote, but hinders, individual liberty and the true development of Law.

  1. THE ROLE OF LEGISLATION AND CODIFICATION
  2. The Role of Legislation
  3. The Secondary Role of Legislation

Does all this mean that there is absolutely no room for legislation? If anarcho-capitalism is accepted, of course there may be no legislation because there may be no government. Relaxing this assumption, if there is a government, then even if it is a minimalist one, it seems that there must effectively be some legislation, if only to determine the structure and function of the government itself. In this case, the points made in this paper militate against any legislation at all other than that strictly necessary to govern the government itself (e.g., a written constitution).

Even if there is a state, the body of law in society should be fashioned by a decentralized court system. The courts should be part of a private system of courts to the extent possible, for example, a competing system of arbitral tribunals rather than government-backed common-law courts. But whether law-finding fora are government courts or private courts, the legislature should have no ability to enact “laws” that have any effect on the decisions that courts make.[118]

If we relax the anarchist/minimal state assumption once more, and admit that a legislature should in some special cases be able to enact statutes to override court decisions, clearly legislation should never be seen as even a primary source of law, much less the primary source of law, lest all the law-destroying features described herein arise.

As the renowned legal scholar Alan Watson has pointed out, in previous eras, legislation was not widely used to alter the private law or to impose some imagined social order on society, but rather to make the law clearer or more accessible.[119]

Even Leoni was not a complete anarchist and believed in the necessity of at least some legislation.[120] According to Leoni, the role of legislation should be kept very small and applied very carefully:

Substituting legislation for the spontaneous application of nonlegislated rules of behavior is indefensible unless it is proved that the latter are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system. [121]

Not much, if any, of today’s legislation could survive this test. Thus, legislation must be restricted to a strictly secondary role, at most, for a system based on the primacy of legislation will inevitably subvert the spontaneous order and substitute pernicious and chaotic rules in its stead.

  1. Alleged Deficiencies of Decentralized Law-Finding Systems

Hayek, another advocate of the spontaneous order of decentralized systems, also believed that legislation is called for in certain situations.[122] Hayek maintained that the fact that a “grown” system of law has some desirable characteristics that legislation usually:

…does not mean that in other respects such law may not develop in very undesirable directions, and that when this happens correction by deliberate legislation may not be the only practicable way out. For a variety of reasons the spontaneous process of growth may lead into an impasse from which it cannot extricate itself by its own forces or which it will at least not correct quickly enough. The development of case-law is in some respects a sort of one-way street: when it has already moved a considerable distance in one direction, it often cannot retrace its steps when some implications of earlier decisions are seen to be clearly undesirable. The fact that law that has evolved in this way has certain desirable properties does not prove that it will always be good law or even that some of its rules may not be very bad. It therefore does not mean that we can altogether dispense with legislation.[123]

Hayek also maintained that the judicial, evolutionary growth of law may be “too slow” to bring about the “desirable” rapid adaptation of the law to wholly new circumstances. Further, according to Hayek, a judge would have to upset “reasonable expectations created by his earlier decisions” to overturn an erroneous line of cases, whereas a legislator can promulgate a new rule which is to be effective only in the future.[124]

Objectivists are also in favor of legislation if it is the only way to have intellectual property rights. For example, Objectivist attorney Murray Franck writes (in response to my criticism that intellectual property rights cannot arise on the common law, or organically, and require legislation):

[J]ust as the common law evolved to recognize “trespass by barbecue smoke,” it would have evolved to recognize property in the airwaves and in intellectual creations. But even if it could be established somehow that the common law would never have recognized intellectual property rights, this would not be an argument against such rights. The common law often requires legislation to correct it (for example, in recognizing the rights of women). Indeed it is a myth that the common law evolves to reflect, and that legislation always is in conflict with, the requirements of human nature. The same minds that employ induction and deduction to decide a particular case, making common law, can employ those methods to legislate universal laws.[125]

Richard Epstein, a brilliant proponent of the common law, also feels that legislation is sometimes desirable, for example, when courts cannot come up with a number, such as a statute of limitations, which might be very desirable.[126] Without legislation, courts would likely bar lawsuits after some length of time. But it is possible that different courts would have different limitations periods, and some judges may decide each case on its own merits. According to Epstein, without a statute of limitations, no court would develop a hard and fast, arbitrary number.[127] Rather, in a pure court system, individuals could only estimate the probability of being able to sue (or to be sued) after a given number of years. By contrast, the number is certain under a statute of limitations. Because certainty is desirable, and because people are risk-averse, “A single number stated in advance truncates the risk [by] making it clear that some actions cannot be brought.”[128]

Even Blackstone was not “an uncritical opponent of statutory law…. Blackstone assigned a limited role to statutory law: its proper office was to resolve conflicts between common law precedents and otherwise to supplement and patch common law doctrine.” [129]

But is the common-law’s development “too slow,” at least on occasion, as Hayek claimed? The U.S. Supreme Court has praised the common law’s “flexibility and capacity for growth and adaptation” as “the peculiar boast and excellence of the common law.”[130] For example, as Blackstone points out, judges under the common law were able to reform the system of feudal land law without legislation. [131]

It would seem, then, that decentralized systems are able to adapt to new situations when it is called for.[132] Additionally, it is not always desirable that basic rules (such as that contracts should be fulfilled) should change just because societal conditions change. Professor Epstein has explained that:

Social circumstances continually change, but it is wrong to suppose that the substantive principles of the legal system should change in response to new social conditions. The law should not be a mirror of social organization. In private law matters, it can best perform its essential function only if it remains constant.[133]

Further, one wonders how any external observer, such as Hayek or any legislature, could ever know what rate of legal change is “too slow,” or even what change is “desirable,” any more than a central planning board can know what is the “right” price to charge for a gallon of milk. Indeed, Hayek’s own insights into the virtues of spontaneous order and the problems of central economic planning demonstrate the ignorance of any central planner in this regard.

I admit that, in some circumstances, a decentralized body of law can err and seem to need “patching”; and indeed, all things being equal, a statute of limitations might be better than none at all. Unfortunately, however, all things are not equal, because of the problems that inevitably accompany legislation. The choice is between a fallible system of decentralized law with no legislature and an even more fallible and dangerous legislative means of making law. To “patch” common law by legislation, you have to first empower a legislature. As Mises wisely put it:

No socialist author ever gave a thought to the possibility that the abstract entity which he wants to vest with unlimited power—whether it is called humanity, society, nation, state, or government—could act in a way of which he himself disapproves.[134]

As Mises here warns, a legislature will not be content to merely fix one bad law. Rather, legislation will eventually overwhelm and suffocate the naturally-developed body of law and engender uncertainty; special interest warfare and quick fix laws will proliferate; and the government will eventually abuse its sovereign position by engaging in economic and human planning.

Epstein may well be correct that not having a definite period for liberative prescription may inject uncertainty into the legal process. Unfortunately, the attempt to cure this by empowering a legislature also increases the general uncertainty in society. Which uncertainty is greater? And what about the liberty of individuals who have their right to sue artificially limited by a statute of limitations? How can we know that the benefit to them (or even to others) is greater than the harm done to them? Because values are subjective to the individual, and because of the economic calculation problem, no central governmental legislature can know whether the benefits of a statute of limitations are worth the cost of such legislation.[135] Furthermore, why is it justifiable to harm one individual to benefit another?

Another problem with urging legislation as a solution to common law gone astray is that this assumes that the legislature can be convinced to make the correct legal reform. First, this is a very dubious assumption, especially given the special interest lobbying that legislators face, and also given the fact that legislators tend to be people who are interested in power rather than philosopher-kings who want to do the right thing.[136] Second, if a proponent of legislation assumes that reasonable and humane legislators can see the light of reason and correctly reform the law, why is it not at least as likely that judges can be persuaded as well?

Especially in an anarcho-capitalistic system—i.e., in a free society—in which all courts are private and compete for business by selling and producing “justice,” the courts at least have an incentive to continually refine the rules in a just direction. If Epstein and legislators can see the value of a fixed time limit to instituting a lawsuit, so can the public, which would create a demand for such a rule. Private court systems that offered such rules to cater to consumer demand would tend to draw more customers and lawsuits than relatively unjust competitor-courts. Thus there is a natural incentive for courts, at least competing courts in a free society, to search for justice and to strive to adopt it, so as to cater to a justice-seeking consumer base.

  1. Structural Safeguards to Limit Legislation

For all these reasons, I do not believe that legislation is a legitimate or practical means of creating law, or even of patching it. If a legislature can be convinced to recognize and respect the right law, so can a decentralized court system, especially one competing with other courts for customers. Courts do not face the same pernicious and systematic incentives that legislators do to make bad laws, and many of them. And courts, if they go bad, at least have a more limited effect on society; whereas when legislatures go bad, there is no end to the evil that they can perpetrate.[137]

If legislation can be considered valid at all (given a governmental system), it can only be occasional or spurious legislation that modifies the body of law which is primarily developed by a court-based, decentralized law-finding system—or legislation that controls how the state itself is limited and organized. If we must have legislation, several constitutional safeguards should accompany its exercise, to attempt to restrict legislation to a purely secondary role in the formation of law. Certainly, a supermajority,[138] and maybe a referendum, should be required in order to enact any statutes whatever, except perhaps for statutes that repeal prior statutes or that limit governmental power.

In addition to a supermajority requirement, another reform that might be considered would be for all legislation to be limited to replacing the opinion of a given court decision with a new decision, which would have purely prospective effect. Then, if a given case or line of cases were issued that had particularly egregious reasoning or results, a supermajority could form in the legislature that would rewrite the unfortunate opinion in purportedly better form and enact this into law, as if the court had first issued the rewritten decision. The rewritten opinion would then assume the status of a judicial precedent, at least for that court.

The benefit of this limitation is that it would prevent legislatures from enacting huge legislative schemes out of whole cloth. There would simply be no way for the legislature to enact an Americans with Disabilities Act, since any statute would really be a rewritten judicial opinion, and to the extent the legislated substitute opinion strayed from the facts of the particular case, it would be merely dicta. If a judge in a battery case, for example, ruled that the spotted owl or the intelligent socialist was now an endangered species, such language would be completely irrelevant, since it is beyond a judge’s power to enact an Endangered Species Act in any judicial opinion. Such a mechanism for legislation would allow very bad case law developments to be overcome, but would also severely restrict the ability of legislatures to radically restructure the law, and thus would reduce the incidence of vote-buying and special interest lobbying, the amount of uncertainty, the proliferation of statutes, and the amount of social planning and other mischief that a legislature might otherwise be inclined to engage in.

Other provisions that could help to limit the dangerous effects of having a legislature include a line-item veto by the executive branch and sunset provisions that automatically repeal legislation unless re-enacted
after a given number of years. Another useful prophylactic measure would be an absolute right to jury trials in all cases, civil or criminal (so that government could not escape the jury requirement by calling truly criminal sanctions “civil”), in which the application of a statute is involved. This should be combined with a requirement that the jury be made aware of their right to judge the law’s validity as well as the defendant’s liability or guilt.[139]

The right of law-abiding citizens to own weapons of any sort, without any registration requirement, is also essential so that an armed public can stand as a last bulwark against a tyrannical government. Even with such safeguards, the power of a government armed with the power to legislate, the power to create and rewrite “law,” is awesome, and fearsome, to behold.

  1. The Role of Commentators and Codes

The criticisms of legislation apply even to civil codes, the most impressive component of modern civil law. Admittedly, the civil law, at least as embodied in a civil code, is superior to the common law in many ways. The civilian system of property rights, not mired in feudalistic form as is the British common law, is much cleaner and conceptually
more sound than common law real property.[140] Common-law real property concepts are almost painful to the mind. As another example, the irrational common-law requirement of “consideration” to create a binding obligation[141] is replaced in the civil law with the more sensible prerequisite of “cause.”[142] However, these superior qualities of the civil law are not due to its legislated character but to the superior legal concepts that evolved in the Roman law.

But the civil code also contains many illiberal and thus illegitimate provisions, which are a problem only because the code is legislated into law. If the civil code were a private, unlegislated codification, judges could simply ignore its illiberal provisions. A particularly egregious example of an unjust law is Louisiana’s forced heirship regime,[143] which limits individuals’ ability to dispose of their own property as they wish upon death. Also, in the civil law, certain sales may be annulled if “too low” a price was paid by the buyer,[144] which violates the rights of property owners to dispose of their property, and which also foolishly assumes that the government knows better than the seller and buyer what the right price is for an item.[145]

Ignoring relatively minor problems such as these, the civil code in and of itself is largely commendable, especially insofar as it embodies and systematizes a naturally grown body of law.[146] But the civil law is more than the civil code: it is legislation made paramount. Legislation is considered the primary source of law—indeed, the civil code itself is legislated—and thus all the problems of legislation discussed above apply to the civil law. When the civil code is enacted as a statute, it is no wonder that proponents of the civil code would naturally view legislation as supreme and tend to view legislation as the primary source of law. And then even the civil code itself tends to develop legislative characteristics, such as code articles enacted at the behest of special interests; illiberal provisions such as those cited above; and specialized, detailed articles out of place in a generalized code.

The civil law would be much improved if the civil code were more like a constitution, in that its provisions would prevail over any contrary statute, and in that some sort of supermajority requirement would be needed to amend it. But we already have constitutions, both state and federal. I do believe that the basic libertarian principles specified herein—
the individual rights to self-ownership and to own property, as embodied in the libertarian non-aggression axiom—should be followed by any judge, but this does not necessarily mean there must be a statute or constitution specifying these principles. It is only important that judges recognize them and, in the long run, this can only happen if a consensus in society recognizes the validity of such principles in the first place. Our task is always education. If the public were ever to become libertarian enough to adopt a libertarian constitution, one would probably not be needed, since private justice supplied on the market, or even in government-based common-law courts, would veer in a libertarian direction in response to the people’s sense of justice.

But if a libertarian constitution or code were in place, it would be relatively sparse. It would specify as first principles that the initiation of force is illegitimate and that the individual rights to own one’s own body and any property one homesteads or acquires voluntarily from other owners are absolute and inviolable. As deductions therefrom, it could specify that rape, murder, theft, assault, battery, and trespass are also rights-violations. As Rothbard states:

The Law Code of a purely free society would simply enshrine the libertarian axiom: prohibition of any violence against the person or property of another (except in defense of someone’s person or property), property to be defined as self-ownership plus the ownership of resources that one has found, transformed, or bought or received after such transformation. The task of the Code would be to spell out the implications of this axiom (e.g., the libertarian sections of the law merchant or common law would be co-opted, while the statist accretions would be discarded). The Code would then be applied to specific cases by the free-market judges, who would all pledge themselves to follow it.[147]

(I would add that the “libertarian” sections of Roman law, e.g., as embodied in modern civil codes, could be adopted in developing Rothbard’s libertarian Law Code, or at least could be referred to by private courts in fashioning legal rules to handle actual disputes.)

But because of the near-infinite variety of ways in which humans can interact, such a code could never be made all-comprehensive. Any codifier who attempted to do this would face the information problems discussed herein. At some point judges need to consider the particular facts of a controversy and, keeping principles of justice in mind, eke out the applicable rule. Judges will sometimes make mistakes, but, then, the fact that individuals are fallible can never be escaped, so this criticism is moot.

It is true that a decentralized, gradually-developed body of case law can become unwieldy and difficult to research. But it is not more so than the modern morass of statutes. I cannot see how either a lawyer or the average layman would have an easier time discerning what law applies to him in a given situation under today’s statute-ridden laws, as opposed to in a decentralized legal system, having a body of judge-discovered principles. Surely in both cases laymen may resort to specialists such as attorneys and explanatory treatises to tell them what the law is. At least in a decentralized system the law is less likely to change from day to day, so that when a person knows what the law is today he is more certain it will be the law tomorrow. And there are likely to be far fewer laws regulating far fewer aspects of our daily lives in a judge-based system, which should make it easier to determine what the relevant law is concerning a given situation.

There is, for these reasons, a significant role for codification in a free society, but only for private, not legislative, codification. To the extent such private codes are systematic and rational, they can both influence the rational development of the law and present or systematize it in concise form for lawyers and laymen alike. We already have treatises such as the American Law Institute’s Restatements of the law, Texas Jurisprudence Third, American Jurisprudence Second, and Corpus Juris Secundum. These treatises would be far more rational and systematic, and shorter, if they did not have to take an unwieldy and interfering body of legislation into account; if they could focus primarily on common-law developments. Legal scholars who currently draft civil code articles for consideration and enactment by a legislature could surely dedicate their energies to privately codifying and systematizing the body of case law that has been developed. [148]

Even a true codification of existing case law can make mistakes. If the code is private, judges can ignore the lapses in the commentator’s reasoning. Of course, this has the extra benefit of giving an incentive to private codifiers not to engage in dishonest reasoning or meddlesome social planning. If a codifier wants his work to be used and acknowledged, he will attempt to accurately describe the existing body of law when he organizes and presents it, and will likely be explicit when recommending that judges adopt certain changes in future decisions.

Law codes should thus be strictly private. We have long seen the wisdom of keeping church and state separate. Theorists like Mises, and the collapse of socialism, teach the virtues of the separation of economy and state. True advocates of a libertarian social and legal order should favor the separation of law and state.[149]

  1. Common Law vs. Civil Law

While in this chapter I argue for the superiority of decentralized law discovery systems such as the Roman law and common law over modern legislation-dominant systems, many libertarians in the past have tended to favor the English common law over competing systems, including modern civil law, even though the civil codes, although
legislated, are elegant codifications of private law principles that themselves evolved in the decentralized Roman Law legal system. The fact that modern civil codes are enacted as statutes and enshrine legal or legislative positivism is indeed a negative.[150] This does not detract from the value of having an elegant written summary of the law prepared by legal scholars distilling and summarizing the body of private law developed in more or less decentralized systems over the ages.

Moreover, the common law itself, as noted, has been increasingly submerged in a sea of legislation, ever since the rise of the administrative state and democratic law-making in the 20th century. And as noted above, Alan Watson has pointed out that in the past, legislation was used mainly to make the law clearer or more accessible, not to make drastic change or impose a new social order.[151] This is in contrast to modern democratic law-making—legislation—that has increasingly become the dominant source of law and is used for widespread social engineering.

Hans-Hermann Hoppe has also commented on the relative merits of the English common law versus the European continental and Romanesque civil law:

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.[152]

I tend to agree with this. What is admirable about the common law is that it is decentralized. But so was the Roman law. Today’s world is dominated by legislation and legal positivism, so the common view is that the civil law and common law are distinct. But this fails to recognize that the civil law, although legislated as a statute, is still a codification of a body of private law principles developed largely in the decentralized Roman law system, plus European custom that developed in intervening centuries—and that the common law of today is being overwhelmed with a growing body of statutory law (as are the continental civil codes). It is not so clear that the substance of the English common law is significantly better or more libertarian than the substance of the Roman law as embodied in the modern continental civil codes. In fact, as noted in this chapter, in many respects the Roman legal concepts are arguably superior to common law principles (for example, the Roman law has a more conceptually elegant and streamlined system of property rights, as opposed to the cluttered common law system, which is mired in feudalistic concepts; and the Roman law’s concept of contract is in some ways superior, since it does not have the unnecessary and formalistic doctrine of consideration).[153]

What we should be wary of is legal and legislative positivism, of relying on legislation as a dominant means of making law. And while we can appreciate the civil codes, along with private “codifications” of the law or treatises such as the ALI’s Restatements of the law, and older treatises such as those by Blackstone and Coke, we should oppose efforts to codify the common law in various jurisdictions and enact them as positive legislation, such as David Dudley Field’s attempt to (legislatively) codify New York’s common law in the late 1800s. This was vigorously fought by New York lawyer James C. Carter. Carter opposed replacing case law with centralized legislation. He notes that caselaw precedents are flexible and allow the judge to do justice, while statutes are applied literally, even where injustice is done or the legislator did not contemplate the 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 Carter wrote:

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![154]

 

  1. CONCLUSION

Virtues such as individual liberty and legal certainty, understood as aspects of a just, libertarian polity, are indeed objectively valid standards that any legal system must uphold. Centralized legal systems—even those that attempt to embody libertarian virtues, such as the civil law—undercut individual rights, because in them legislation is made supreme and valid; because law-finding is replaced with law-making.

Both the Roman law and common law have been corrupted into today’s inferior legislation-dominated systems. The primacy of legislation should be abandoned, and we should return to a system of judge-made law—a private system, ideally, but in the direction of systems like the old common law and Roman law, at least. Scholars who codify naturally-evolved law have a vital function to serve, but they should not ask for governmental imprimatur on their scholarly efforts.

Ultimately, the form of a legal system does not guarantee that just laws will be adopted. We must always be vigilant and urge that individual freedom be respected, whether by legislator or judge.

APPENDIX
LEGISLATIVE SUPREMACY IN THE CIVIL CODE

As noted above, the material here was originally intended to appear in footnote 6, above. Due to its length, I include this material in this appendix.

Legislative supremacy is announced in the very first articles of the Louisiana Civil Code. Article 1 provides that “The sources of law are legislation and custom,” but article 3 makes it clear that legislation is dominant and supreme: “Custom may not abrogate legislation.”[155]

Yet some scholars note that the Louisiana code is not quite as “rationalistic” or legal positivistic as the French code, since it also admits custom as a source of law and, importantly, also provides: “When no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.”[156]

For discussion of the Louisiana Civil Code, its history, and related issues, see various works by Herman, Yiannopoulos, et al.[157] Differences in terminology between Louisiana’s civil-law system and common-law legal systems are detailed in Rome & Kinsella, Louisiana Civil Law Dictionary.[158] A general comparison of civil and common law is found in Buckland & McNair, Roman Law and Common Law: A Comparison in Outline.[159]

 

[1] Kafka, The Trial (New York: Schocken Books, Definitive ed. 1984, Willa and Edwin Muir, trans. 1956), at 146.

 

[2] In this book, I sometimes use the term government to refer to what should more precisely be referred to as the state, although, as I have argued elsewhere, to be precise, government (or the institutions of governance) is conceptually distinct from the state. The state commandeers various natural and private institutions in society, such as communication, transportation, defense, education, healthcare, and law and order (institutions of governance), and over time the populace associates these institutions with the state. But just as libertarians are only against state-provided roads and education, but not against roads and education, we are not against “government,” meaning institutions or law and order. We are against the state. We anarchist libertarians are not for chaos and do not think law is impossible without the state; indeed, we think true, just law is only really possible without the state. Thus we anarchist libertarians do not oppose law and order, or even “government,” properly understood. Nonetheless, I sometimes use “government” in this book in the conventional sense to more or less mean the state, to avoid tedium. See, on this, “Libertarianism After Fifty Years: What Have We Learned?” (ch. 25); Kinsella, “The Nature of the State and Why Libertarians Hate It,” StephanKinsella.com (May 3, 2010); idem, “The State is not the government; we don’t own property; scarcity doesn’t mean rare; coercion is not aggression,” StephanKinsella.com (Dec. 19, 2022);

Likewise, in this book I try to avoid or minimize using “property” to refer to the object of property rights (the scarce resource owned) (see “What Libertarianism Is” (ch. 2), n.5) and using “coercion” as a synonym for aggression (Kinsella, “The Problem with ‘Coercion,’” StephanKinsella.com (Aug. 7, 2009) and “The State is not the government; we don’t own property; scarcity doesn’t mean rare; coercion is not aggression”), but sometimes retain the less-precise usage due to the older usage employed in the source material and to avoid tedium.

[3] Bruno Leoni, Freedom and the Law (Indianapolis: Liberty Fund, expanded 3d. ed. 1991 [1961]; https://oll.libertyfund.org/title/kemp-freedom-and-the-law-lf-ed), at 23; see also p. 89.

 

[4] See notes 37 and 81, below, and accompanying text.

 

[5] The expression “judge-found” will be used throughout this chapter, rather than the more popular and positivistic phrase “judge-made.” I will use the generic phrase “judges” often to refer to the relevant expert decision maker, whether judge, jurist, or private arbitrator, in situations where the relevant discussion applies to decentralized legal systems such as the common law, Roman law, and private law. Although Roman and common law were not based solely on the decisions of judges, for illustrative purposes I will focus on this characteristic as their primary way of finding law.

 

[6] In revising this chapter, this footnote grew to unmanageable length. I have placed the relevant commentary in the Appendix, below.

 

[7] For more discussion of the gradual method of developing law in the Roman and common law and of these systems’ relative similarity, see Stein, “Roman Law, Common Law, and Civil Law,” p. 1592; Buckland & McNair, Roman Law and Common Law, at xiv.

 

[8] Leoni, Freedom and the Law, p. 6.

 

[9] Rationalism has been defined as:

[T]he doctrines of a group of philosophers of the 17th and 18th centuries, whose most important representatives are Descartes, Spinoza, and Leibniz. The characteristics of this kind of rationalism are: (a) the belief that it is possible to obtain by reason alone a knowledge of the nature of what exists; (b) the view that knowledge forms a single system, which (c) is deductive in character; and (d) the belief that everything is explicable, that is, that everything can in principle be brought under the single system.

Antony Flew, A Dictionary of Philosophy, 298–99 (New York: St. Martin’s Press, rev’d 2d ed., 1984). See also Hans-Hermann Hoppe, “In Defense of Extreme Rationalism,” in The Great Fiction: Property, Economy, Society, and the Politics of Decline (Second Expanded Edition, Mises Institute, 2021; www.hanshoppe.com/tgf). See also note 6, above.

 

[10] See, e.g., Shael Herman, The Louisiana Civil Code: A European Legacy for the United States (Louisiana Bar Foundation, 1993), pp. 11–16; Shael Herman & David Hoskins, “Perspectives on Code Structure: Historical Experience, Modern Formats, and Policy Considerations, Tul. L. Rev. 54 (1980): 987–1051, p. 996 et seq. (discussing in Part III “The Contribution of the Enlightenment: A Drive to Systematization”); Stein, “Roman Law, Common Law, and Civil Law,” pp. 1594–95; and Julio C. Cueto-Rua, “The Future of the Civil Law,” La. L. Rev. 37, no. 3 (1976–77; https://digitalcommons.law.lsu.edu/lalrev/vol37/iss3/2/): 645–79, pp. 646, 652. See also Giovanni Sartori, Democratic Theory (Westport, Connecticut: Greenwood Press, 1962), pp. 231–37, 245–56 (discussing the political rationalism of the continental legal system).

 

[11] See Part III.B, below.

 

[12] See, e.g., Herman, The Louisiana Civil Code: A European Legacy for the United States, p. 12.

 

[13] See, e.g., ibid. p. 12. However, “democracy” is nothing more than majoritarianism—i.e., mob rule—which does not deserve unqualified praise and thus does not belong in the same class as the other virtues listed above. See notes 22 and 86, below, and accompanying text (discussing some deficiencies of democracy).

 

[14] See, e.g., ibid. p. 12.

 

[15] See, e.g., ibid. p. 15.

 

[16] See, e.g., ibid.

 

[17] See, e.g., Cueto-Rua, “The Future of the Civil Law,” p. 652.

 

[18] See, e.g., Alan Watson, The Making of the Civil Law 68 (Cambridge, Massachusetts and London: Harvard University Press, 1981); Cueto-Rua, “The Future of the Civil Law,” p. 652.

 

[19] See, e.g., Cueto-Rua, “The Future of the Civil Law,” p. 677. I call these generally praiseworthy things, values, and conditions “virtues” for lack of a more generic description.

 

[20] See, e.g., Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (Auburn, Ala.: Mises Institute, 2010 [1989], www.hanshoppe.com/tsc), chap. 7, and The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (Auburn, Ala.: Mises Institute, 2006 [1993], www.hanshoppe.com/eepp), chap. 13; “A Libertarian Theory of Punishment and Rights” (ch. 5); “Dialogical Arguments for Libertarian Rights” (ch. 6).

 

[21] “Justice is the constant and perpetual wish to render every one his due.… The maxims of law are these: to live honestly, to hurt no one, to give every one his due.” J.A.C. Thomas, ed., trans., The Institutes of Justinian: Text, Translation, and Commentary (Amsterdam: North-Holland Publishing Company, 1975).

 

[22] Almost all of the virtues acclaimed by civilians—as understood here as necessarily compatible with and supportive of individual rights—are genuine, objectively valid virtues or standards that the civil law must be judged by. However, the concept of “democracy” is not in the same class as the other alleged virtues of the civil law. Although the term “democracy” is widely misused today to represent things such as self-determination, economic liberties, or civil liberties, it actually denotes a type of polity whereby certain rules are made by majority vote. Under democracy, nothing prevents a majority from voting for whatever sort of tyrant or tyrannical laws that they like. There is no guarantee, or even likelihood, that laws enacted by a majority or their elected representatives will tend to be just—in fact, it is unlikely, as argued below. See Part III.C.3, below and Hans-Hermann Hoppe, Democracy: The God That Failed (Transaction, 2001; www.hanshoppe.com/democracy).

 

[23] See Part IV, below.

 

[24] See “What It Means to Be an Anarcho-Capitalist” (ch. 3) and “What Libertarianism Is” (ch. 2).

 

[25] Regarding the possibility of a system of anarchy that is ordered, not chaotic, see Hans-Hermann Hoppe, “The Private Production of Defense,” in The Great Fiction; Randy E. Barnett, “Imagining a Polycentric Constitutional Order: A Short Fable,” in The Structure of Liberty: Justice and the Rule of Law, 2d ed. (Oxford, 2014); Robert P. Murphy, Chaos Theory: Two Essays on Market Anarchy, Second Edition (Auburn, Ala.: Mises Institute, 2010; https://mises.org/library/chaos-theory-two-essays-market-anarchy-0); Gerard Casey, Libertarian Anarchy: Against the State (Continuum International Publishing Group, 2012); Bruce L. Benson, The Enterprise of Law: Justice Without the State (San Francisco, Ca.: Pacific Research Institute for Public Policy, 1990); David Friedman, The Machinery of Freedom: Guide to A Radical Capitalism, 3d ed. (2014); Morris & Linda Tannehill, The Market for Liberty (Auburn, Ala.: Mises Institute, 2007 [1970]; https://mises.org/library/market-liberty-1); Murray N. Rothbard, For a New Liberty, second ed. (Auburn, Ala.: Mises Institute, 2006; https://mises.org/library/new-liberty-libertarian-manifesto), esp. chap. 12; George H. Smith, “Justice Entrepreneurship in a Free Market,” in Atheism, Ayn Rand, and Other Heresies (Buffalo, N.Y.: Prometheus Books, 1991); Jeffrey Rogers Hummel, “National Goods Versus Public Goods: Defense, Disarmament, and Free Riders,” Rev. Austrian Econ. 4 (1990; https://mises.org/library/national-goods-versus-public-goods-defense-disarmament-
and-free-riders): 88–122; and Terry Anderson & P.J. Hill, “An American Experiment in Anarcho-Capitalism: The Not So Wild, Wild West,” J. Libertarian Stud. 3, no. 1 (1979; https://mises.org/library/american-experiment-anarcho-capitalism-not-so-wild-wild-west): 9–29. Additional references are listed in Kinsella, “The Greatest Libertarian Books,” StephanKinsella.com (Aug. 7, 2006) and Hans-Hermann Hoppe, “Anarcho-Capitalism: An Annotated Bibliography,” LewRockwell.com (Dec. 31, 2001; https://archive.lewrockwell.com/hoppe/hoppe5.html).

 

[26] See Rothbard, For A New Liberty, pp. 286–89, discussing the largely successful, anarchic system that lasted for roughly 1,000 years in ancient Celtic Ireland. See also Benson, The Enterprise of Law, discussing historical examples and theoretical bases for privately-produced justice; Friedman, The Machinery of Freedom, chap. 45 (discussing anarchy in ancient Iceland); and Casey, Libertarian Anarchy, chap. 5 (discussing anarchy in ancient Ireland and other societies).

 

[27] Rothbard, For A New Liberty, p. 290.

 

[28] Leoni, Freedom and the Law, p. 61.

 

[29] Ibid., p. 95.

 

[30] Vernon Palmer, “Celebrating the Québec Codification Achievement: A Louisiana Perspective,” Loy. L. Rev. 38 (1992; https://perma.cc/JK8T-HX4J): 311–27, p. 315 (emphasis added). See also Herman & Hoskins, “Perspectives on Code Structure: Historical Experience, Modern Formats, and Policy Considerations,” pp. 1001–1002; Herman, The Louisiana Civil Code: A European Legacy for the United States, p. 11; idem, “Minor Risks and Major Rewards: Civilian Codification in North America on the Eve of the Twenty-First Century,” Tul. Civ. L. Forum 8 (1993): 63–80, p. 65 (“Civilians presuppose as a fundamental tenet that the fountainhead of stability is their legislation.”); and Leoni, Freedom and the Law, pp. 73, 142–43 (a desire for certainty in the law, in the sense of verbal precision, was one of the chief reasons for the continental codification efforts).

 

[31] As the not-quite-trite bumper sticker or plaque reads, “No man’s life, liberty or property is safe while the legislature is in session.” (Attribution: Gideon J. Tucker; Wikipedia, https://perma.cc/PB8G-DP4J.)

 

[32] Leoni, Freedom and the Law, p. 75.

 

[33] Ibid., p. 10.

 

[34] See Giovanni Sartori, Liberty and Law (Menlo Park, Ca.: Institute for Humane Studies, 1976), at 15–16 et pass. The “other” fundamental requisite of law is that law be based on rules of general application, a requisite that special statutes tend to undermine. I am grateful to Leonard Liggio for calling Sartori’s works to my attention. But having statutory, artificial law be predictable, known ahead of time, and of “general applicability” is not sufficient for law to be just. If this is your only criteria, you can support all manner of statist laws, as Hayek does. See Walter E. Block, “Hayek’s Road to Serfdom,” J. Libertarian Stud. 12, no. 2 (Fall 1996; https://mises.org/library/hayeks-road-serfdom), pp. 327–50.

 

[35] Ibid. at 38. See also Ridgway K. Foley, Jr., “Invasive Government and the Destruction of Certainty,” The Freeman (Jan. 1988; https://fee.org/articles/invasive-government-and-the-destruction-of-certainty/); Peter H. Aranson, “Bruno Leoni in Retrospect,” Harv. J. L. & Pub. Pol’y 11 (1988): 661–711, pp. 672–73 & 681–82; Leonard P. Liggio & Tom G. Palmer, “Freedom and the Law: A Comment on Professor Aranson’s Article,” Harv. J. L. & Pub. Pol’y 11 (1988; http://tomgpalmer.com/selected-publications/): 713–25.

 

[36] Leoni, Freedom and the Law, p. 22. See also Aranson, “Bruno Leoni in Retrospect,” pp. 669–71 and Rothbard, For a New Liberty, pp. 283 et seq. (discussing Leoni’s views with respect to these issues).

 

[37] As Professor Benson explains, without legislative interference by non-judges, the

common law would grow gradually. It would grow and develop in the same way that all customary law grows and develops, particularly as a consequence of the mutual consent of parties entering into reciprocal arrangements. For example, two parties may enter into a contract, but something then occurs that the contract did not clearly account for. The parties agree to call upon an arbitrator or mediator to help lead them to a solution. The solution affects only those parties in the dispute, but if it turns out to be effective and the same potential conflict arises again, it may be voluntarily adopted by others. In this way, the solution becomes part of customary law.

Benson, The Enterprise of Law, p. 283 (endnote omitted).

 

[38] See Benson, The Enterprise of Law, p. 33 et pass.; Tannehill & Tannehill, The Market for Liberty, p. 66 et seq; Bruce L. Benson, “Customary Law as a Social Contract: International Commercial Law,” Constitutional Political Economy 3 (1992): 1–27, p. 9.

 

[39] See Benson, The Enterprise of Law, pp. 17 & 364.

 

[40] Gordon Tullock, “Courts as Legislators,” in Robert L. Cunningham, ed., Liberty and the Rule of Law (College Station, Texas: Texas A&M University Press, 1979), chap. 5, p. 142.

 

[41] Richard A. Posner, “Blackstone and Bentham,” J. Law & Econ. 19 (1976): 569–606, p. 584 (citing 1 William Blackstone, Commentaries on the Laws of England § 83, at *70).

 

[42] 1 Blackstone, Commentaries on the Laws of England § 83, at *69, also quoted in Posner, “Blackstone and Bentham,” at 582.

 

[43] See Johnson v. St. Paul Mercury Ins. Co., 236 So.2d 216, 218 (La. 1970).

 

[44] See Rothbard, For a New Liberty, at 282 et seq.

 

[45] See, e.g., Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: The Free Press, 1990); Henry Mark Holzer, Sweet Land of Liberty: The Supreme Court and Individual Rights (Costa Mesa, Calif.: Common Sense Press, 1983); Bernard H. Siegen, Economic Liberties and the Constitution (Chicago: University of Chicago Press, 1980); and James A. Dorn & Henry G. Manne, eds., Economic Liberties and the Judiciary (Fairfax, Va.: George Mason University Press, 1987).

 

[46] Leoni, Freedom and the Law, p. 181.

 

[47] Ibid., at 24.

 

[48] Norman Barry, “The Tradition of Spontaneous Order,” Literature of Liberty 5, no. 2 (Summer 1982; https://perma.cc/Y7X3-S8WY): 7–58, p. 44 (emphasis added), quoted in Aranson, “Bruno Leoni in Retrospect,” p. 723, n.40.

Note: if writing this now, I would avoid the term “spontaneous” since it is problematic and intermixed with some of Hayek’s views that I now disagree with on the knowledge problem and how the market functions. See the “Introductory Note” to Part III.C, below. I have left the term “spontaneous” in the text since it was in the original. I believe the term “spontaneous” as used by Hayekians can be confusing and misleading.

[49] In over 200 years, the U.S. Constitution has been amended only 27 times.

 

[50] See note 45, above, and references cited therein.

 

[51] Jean Louis Bergel, “Principal Features and Methods of Codification,” La. L. Rev. 48, no. 5 (May 1988; https://digitalcommons.law.lsu.edu/lalrev/vol48/iss5/3/): 1073–1097, at 1079.

 

[52] Vernon Palmer, “The Death of a Code—The Birth of a Digest,” Tul. L. Rev. 63, no. 2 (December 1988): 221–64, at 235. Although it must be admitted that even a written constitution, such as that of the United States, is nothing but a statute, albeit a special form of statute and often not as problematic as is normal legislation, as it is more abstract and tends to be partly a codification of earlier customary and private law norms.

 

[53] Julio C. Cueto-Rua, “The Civil Code of Louisiana Is Alive and Well,” Tul. L. Rev. 64, no. 1 (1989): 147–76, 158.

 

[54] Palmer, “Celebrating the Québec Codification Achievement” at 316 (emphasis added). See also ibid. at 317 (discussing the phenomenal growth of special laws in Louisiana since 1825); Leoni, Freedom and the Law, p. 6 (discussing the submersion of continental civil codes in thousands of specialized statutes); Merryman & Pérez-Perdomo, The Civil Law Tradition, chap. XX (same). See also Kinsella, “The Mountain of IP Legislation,” C4SIF Blog (Nov. 24, 2010).

 

[55] See Part III.B.1, above.

 

[56] Leoni, Freedom and the Law, p. 18.

 

[57] Bertrand de Jouvenel, Sovereignty: An Inquiry into the Political Good (Chicago: University of Chicago Press, 1957), at 189. See also Leoni, Freedom and the Law, pp. 145–46.

 

[58] Aranson, “Bruno Leoni in Retrospect,” pp. 681–82 (footnote omitted).

 

[59] Hans-Hermann Hoppe, “Time Preference, Government, and the Process of De-Civilization—From Monarchy to Democracy,” J. des Economistes et des Etudes Humaines 5, no. 2/3 (June/September 1994; https://www.hanshoppe.com/publications/): 319–49, at 319–21 (also included in Democracy: The God That Failed and in John Denson, ed., The Costs of War: America’s Pyrrhic Victories (New Brunswick: Transaction Publishers, 1997; https://mises.org/library/costs-war-americas-pyrrhic-victories)). See also Ludwig von Mises, Human Action: A Treatise on Economics, Scholar’s ed. (Auburn, Ala.: Mises Institute, 1998; https://mises.org/library/human-action-0), chaps. 18–19; Murray N. Rothbard, Man, Economy, and State, in Man, Economy, and State, with Power and Market, Scholar’s ed., second ed. (Auburn, Ala.: Mises Institute, 2009; https://mises.org/library/man-economy-and-state-power-and-market), chap. 1, §4 and chap. 6, §3.

 

[60] Hoppe, “Time Preference, Government, and the Process of De-Civilization—From Monarchy to Democracy,” pp. 320–21.

 

[61] Ibid., at 340.

 

[62] Leoni, Freedom and the Law, p. 80.

 

[63] Hoppe, “Time Preference, Government, and the Process of De-Civilization—From Monarchy to Democracy,” at 340 n.31. On the relationship between time preference and crime, Hoppe cites J.Q. Wilson & R.J. Herrnstein, Crime and Human Nature (1985), pp. 49–56, 416–22; E.C. Banfield, The Unheavenly City Revisited (Boston: Little, Brown, 1974); and idem, “Present-Orientedness and Crime,” in Randy E. Barnett & J. Hagel, eds., Assessing the Criminal, Restitution, Retribution, and the Legal Process (Cambridge: Ballinger, 1977).

 

[64] Regarding “the increase in criminal activity brought about by the operation of democratic republicanism in the course of the last hundred years as a consequence of steadily increased legislation and an ever expanding range of ‘social,’ as opposed to private, responsibilities” (Hoppe, “Time Preference, Government, and the Process of De-Civilization—From Monarchy to Democracy,” n.31), Hoppe cites R.D. McGrath, Gunfighters, Highwaymen, and Vigilantes: Violence on the Frontier (Berkeley: University of California Press, 1984), esp. chap. 13, and idem, “Treat Them to a Good Dose of Lead,” Chronicles (January 1994), pp. 17–18.

 

[65] Hans-Hermann Hoppe, “The Economics and Sociology of Taxation,” in Hoppe, Economics and Ethics of Private Property, at 34.

 

[66] See Joseph T. Salerno, “Postscript” [1990], in Ludwig von Mises, Economic Calculation in the Socialist Commonwealth, S. Adler, trans. (Auburn, Ala.: Mises Institute, 1990 [1920]; https://mises.org/library/economic-calculation-socialist-commonwealth); idem, “Ludwig von Mises as Social Rationalist,” Rev. Austrian Econ. 4 (1990; https://mises.org/library/ludwig-von-mises-social-rationalist): 26–64 Joseph T. Salerno, “Ludwig von Mises as Social Rationalist,” Rev. Austrian Econ. 4 (1990; https://mises.org/library/ludwig-von-mises-social-rationalist): 26–64, at 31 (also published in Jeffrey M. Herbener, ed., The Meaning of Ludwig von Mises: Contributions in Economics, Sociology, Epistemology, and Political Philosophy (Norwell, Mass.: Kluwer Academic Publishers, 1993; https://mises.org/library/meaning-ludwig-von-mises)); and especially idem, “Mises and Hayek Dehomogenized,” Rev. Austrian Econ. 6, no. 2 (1993; https://mises.org/library/mises-and-hayek-dehomogenized): 113–46; and other material collected at Kinsella, “The Great Mises-Hayek Dehomogenization/Economic Calculation Debate,” StephanKinsella.com (Feb. 8, 2016).

[67] Herbener’s letter is available at Kinsella, “Legislation and the Discovery of Law in a Free Society,” StephanKinsella.com (Jan. 8, 2021).

[68] See Murray N. Rothbard, “The End of Socialism and the Calculation Debate Revisited,” Rev. Austrian Econ. 5, no. 2 (1991; https://mises.org/library/end-socialism-and-calculation-debate-revisited-0): 51–76, at 66; Jörg Guido Hülsmann, “Knowledge, Judgment, and the Use of Property,” Rev. Austrian Econ. 10, no. 1 (1997; https://mises.org/library/knowledge-judgment-and-use-property): 23–48, at 39; Salerno, “Ludwig von Mises as Social Rationalist,” at 44; Hans-Hermann Hoppe, “Socialism: A Property or Knowledge Problem?”, Rev. Austrian Econ. 9, no. 1 (1996; https://mises.org/library/socialism-property-or-knowledge-problem): 143–49, at 146. See also Kinsella, “Knowledge vs. Calculation,” Mises Economics Blog (July 11, 2006). See also related discussion in “Knowledge, Calculation, Conflict, and Law” (ch. 19), at n.34, and idem, “Second Thoughts on Leoni, Hayek, Legislation, and Economic Calculation,” The Libertarian Standard (May 9, 2014).

[69] See Gertrude E. Schroeder, “The Dismal Fate of Soviet-Type Economies: Mises Was Right,” Cato J. 11 no. 1 (Spring/Summer 1991; https://www.cato.org/cato-journal/spring/sumer-1991): 13–25; Mark Skousen, “‘Just Because Socialism Has Lost Does Not Mean That Capitalism Has Won’: An Interview with Robert L. Heilbroner,” Forbes (May 27, 1991): 130–35. [Jeremy Waldron, The Right to Private Property (Oxford 1988), p. 9 and n.17: “It is now accepted that a centralized command economy, in which all productive decisions were taken on the basis of the central allocation of scarce resources, would lead, in the conditions of modern industry, to radically inefficient and perhaps catastrophic results.17. 17. For socialist recognition of this point, see e.g. Nove, Economics of Feasible Socialism, and Anderson, On the Tracks of Historical Materialism.]

[70] Mises, Economic Calculation in the Socialist Commonwealth; idem, Socialism: An Economic and Sociological Analysis, J. Kahane, trans. (Indianapolis, Ind: Liberty Fund, 1981; https://oll.libertyfund.org/title/kahane-socialism-an-economic-and-sociological-analysis), at 95–130; Mises, Human Action, at 200–31, 695–715; Murray N. Rothbard, “The End of Socialism and the Calculation Debate Revisited,” in Economic Controversies (Auburn, Ala.: Mises Institute, 2011; https://mises.org/library/economic-controversies).

 

[71] Rothbard, “The End of Socialism and the Calculation Debate Revisited,” at 828.

 

[72] Mises, Human Action, at 259.

 

[73] Rothbard, “The End of Socialism and the Calculation Debate Revisited,” at 829.

 

[74] Ibid., pp. 854. See also Mises, Human Action, at 702 (discussing the use of western price systems by socialist governments).

 

[75] Mises, Socialism, at 113 (p. 131 of the 1936 J. Kahane translation).

 

[76] Mises, Human Action, at 700.

 

[77] Leoni, Freedom and the Law, p. 19.

 

[78] Ibid. at 19–20 (emphasis in original). See also ibid. at 89; Aranson, “Bruno Leoni in Retrospect,” p. 676.

 

[79] On the unintended consequences that flow from various governmental programs and laws, see William C. Mitchell & Randy T. Simmons, Beyond Politics: Markets, Welfare, and the Failure of Bureaucracy (Boulder: Westview Press, 1994).

 

[80] Leoni, Freedom and the Law, p. 23 (emphasis in original).

 

[81] Ibid. at 22; see also p. 104; Aranson, “Bruno Leoni in Retrospect,” pp. 668–69; and note 37, above, and accompanying text.

 

[82] See Leoni, Freedom and the Law, p. 218 (discussing similarities between evolved systems like language and law).

 

[83] Aranson, “Bruno Leoni in Retrospect,” p. 675.

 

[84] See Part III.B.4, subsections b. and c.

 

[85] Aranson, “Bruno Leoni in Retrospect,” p. 675. See also Lawrence M. Friedman, A History of American Law (New York: Simon & Schuster, Inc., 2d ed. 1985), 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 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 Wisc. L. Rev. (1994): 1119–1286. For more on James Carter’s opposition to Field’s attempt to legislatively codify the common law of New York, see Kinsella, “Another Problem with Legislation: James Carter v. the Field Codes,” Mises Economics Blog (Oct. 14, 2009).

For further discussion of Leoni’s ideas in this regard and related issues, see Gottfried Dietze, “The Necessity of State Law,” in Cunningham, ed., Liberty and the Rule of Law (chap. 3, p. 74); Tullock, “Courts as Legislators”; Sartori, Liberty and Law, and idem, Democratic Theory, chap. 13; Leonard P. Liggio, “Law and Legislation in Hayek’s Legal Philosophy,” Southwestern U. L. Rev. 23 (1994; https://perma.cc/5GHM-T8KU): 507–29; Murray N. Rothbard, “On Freedom and the Law,” New Individualist Review (Winter 1962, vol. 1, no. 4) 37, reprinted in New Individualist Review omnibus volume at 163 (1982; https://oll.libertyfund.org/title/friedman-new-individualist-review) (reviewing Leoni, Freedom and the Law).

[86] For a discussion of some problematic tendencies of democracies, see Hoppe, “Time Preference, Government, and the Process of De-Civilization—From Monarchy to Democracy” and “On Free Immigration and Forced Integration,” in Democracy: The God That Failed.

 

[87] Leoni, Freedom and the Law, p. 22 (emphasis in original). See also ibid. at 89; Aranson, “Bruno Leoni in Retrospect,” p. 675.

 

[88] Sartori, Liberty and Law, at 31–32.

 

[89] Ibid. at 32.

 

[90] Leoni, Freedom and the Law, p. 19. See also Aranson, “Bruno Leoni in Retrospect,” pp. 676–77.

 

[91] See Part III.C.2, above.

 

[92] Leoni, Freedom and the Law, pp. 21, 158. See also Aranson, “Bruno Leoni in Retrospect,” pp. 677–79; Mitchell & Simmons, Beyond Politics (discussing the large number of special interest groups that accompany big government), and Frederic Bastiat, The Law (Irvington-on-Hudson, N.Y.: Foundation for Economic Education, Dean Russell trans. 1950 [1850]; https://fee.org/resources/the-law), pp. 17–18 (discussing ever-escalating conflicts among disparate special interest groups).

 

[93] See notes 37 and 81, above, and accompanying text.

 

[94] Liggio & Palmer, “Freedom and the Law: A Comment on Professor Aranson’s Article,” at 720–21.

 

[95] Ibid. at 721, n.30.

 

[96] Richard A. Epstein, “The Social Consequences of Common Law Rules,” 95, no. 8 Harv. L. Rev. (June 1982; https://chicagounbound.uchicago.edu/journal_articles/1276/): 1717–51, pp. 1718–19.

 

[97] See Part III.B.2, above.

 

[98] Aranson, “Bruno Leoni in Retrospect,” p. 697; Peter H. Aranson, “The Common Law as Central Economic Planning,” Const. Pol. Econ. 3 (1992): 289–320, pp. 297–99 et pass.

 

[99] Aranson, “Bruno Leoni in Retrospect,” p. 692.

 

[100] Ibid. at 697–98 (emphasis added) (footnotes omitted). See also Aranson, “The Common Law as Central Economic Planning,” p. 314.

 

[101] See Murray N. Rothbard, America’s Great Depression (New York: New York University Press, revised ed. 1975); idem, Man, Economy, and State, chap. 12, §11.B; idem, For a New Liberty, at chap. 9; Mises, Human Action, chap. XX, esp. p. 561.

 

[102] See Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government (New York: Oxford University Press, 1987).

 

[103] Tacitus, Annals, III, 27, quoted in Sartori, Liberty and Law, at 3. For example, in the case of legislation related to intellectual property law, see Kinsella, “The Mountain of IP Legislation,” Mises Economics Blog (Nov. 24, 2010).

 

[104] See note 92, above, and accompanying text.

 

[105] See Part III.B.4, subsections b. and c.

 

[106] In the case of copyright, for example, see Kinsella, “We are all copyright criminals: John Tehranian’s ‘Infringement Nation,’” Mises Economics Blog (Aug. 22, 2011).

 

[107] Professor Benson notes that such a proliferation of laws “leads to selective enforcement, corruption, and open tolerance of illegal acts. Clearly a negative externality is created as respect for and fidelity to all law is harmed when large numbers of such largely unenforceable laws are openly defied.” Benson, The Enterprise of Law, p. 286.

 

[108] Sartori, Liberty and Law, at 38–39.

 

[109] Ibid. at 39. See also Benson, The Enterprise of Law, p. 282 (“it appears that the increasing centralization of law-making has been associated with increasing transfers of property rights from private individuals to government or perhaps, more accurately, to interest groups.”) (endnote omitted).

 

[110] F.A. Hayek, I. Law, Legislation and Liberty: Rules and Order (Chicago: University of Chicago Press, 1973), pp. 5–6; see also pp. 72, 118; idem, The Fatal Conceit: The Errors of Socialism, vol. I of The Collected Works of F.A. Hayek (Chicago: University of Chicago Press, W.W. Bartley, III, ed., 1989); idem, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), p. 38 et seq.; Eugene F. Miller, “The Cognitive Basis of Hayek’s Political Thought,” in Cunningham, ed., Liberty and the Rule of Law, chap. 11, pp. 242, 245 (discussing the two kinds of rationalism and their political consequences); John Gray, Hayek on Liberty (Oxford: Basil Blackwell, 1984), p. 10; Sartori, Democratic Theory, at chap. 11 (discussing rationalism vs. empiricism).

 

[111] Miller, “The Cognitive Basis of Hayek’s Political Thought,” at 245.

 

[112] Ibid. at 246.

 

[113] Ibid. at 246–47 (footnote omitted).

 

[114] See Hayek, I. Law, Legislation and Liberty: Rules and Order, at 29 (“to make reason as effective as possible requires an insight into the limitations of the powers of conscious reason…. [O]ne of the tasks of reason is to decide how far it is to extend its control or how far it ought to rely on other forces which it cannot wholly control.”).

 

[115] Hayek himself has been criticized for assigning too little role to reason on the part of individuals within a spontaneous free market order. See Hans-Hermann Hoppe, “F.A. Hayek on Government and Social Evolution: A Critique,” in The Great Fiction. Hayek’s teacher Mises, as opposed to Hayek, viewed laws, morals, market customs, and the price system as products of individual, rational, human action. “While these institutions were not created out of whole cloth by a single mind, political fiat or ‘social contract,’ they are indeed the products of rational and intentional planning by human beings, whose thoughts and actions continually reaffirm and reshape them in the course of history.” Salerno, “Ludwig von Mises as Social Rationalist,” at 31.

 

[116] Thomas Sowell, Knowledge and Decisions (New York: Basic Books, Inc., 1980), pp. 102–03.

 

[117] Posner, “Blackstone and Bentham,” at 594, 603–606. For a discussion of Bentham and David Dudley Field, another proponent of common-law codification, and of anti-codifiers such as James C. Carter, see Friedman, A History of American Law, at 391–92, 403–406; and Kinsella, “Another Problem with Legislation: James Carter v. the Field Codes.”

 

[118] This is not, however, to say that the judicial branch of a government should have the power of judicial review with respect to other branches of the government. Ideally, the legislative, judicial, and executive branches each have an equal and independent power to interpret the constitution. See William J. Quirk & R. Randall Bridwell, “Angels to Govern Us,” Chronicles (March 1995), p. 12 and idem, Judicial Dictatorship (New Brunswick, N.J.: Transaction Publishers, 1995).

 

[119] Alan Watson, Failures of the Legal Imagination (University of Pennsylvania Press, 1988; https://archive.org/details/failuresoflegali0000wats), pp. 47 et seq.

 

[120] Leoni, Freedom and the Law, pp. 10 and 129–31.

 

[121] Ibid. at 14; see also p. 178 (“Whatever is not positively proved worthy of legislation should be left to the common-law area.”).

 

[122] Hayek, I. Law, Legislation and Liberty: Rules and Order, at 88, subsection entitled “Why grown law requires correction by legislation.”

 

[123] Ibid. at 88 (also citing Leoni, Freedom and the Law).

 

[124] Ibid. at 88–89.

 

[125] See references in Kinsella, “Letter on Intellectual Property Rights,” IOS Journal (June 1995),” C4SIF Blog (Aug. 31, 2022). Talk about naïve rationalism.

 

[126] Richard A. Epstein, “Past and Future: The Temporal Dimension in the Law of Property,” Wash. U. L. Q. 64, no. 3 (1986; https://openscholarship.wustl.edu/law_lawreview/vol64/iss3/3/): 667–722, at 680–81.

 

[127] Ibid. at 680.

 

[128] Ibid. at 681.

 

[129] Posner, “Blackstone and Bentham,” at 585 (citing 3 Blackstone, Commentaries on the Laws of England, at *328, and 1 Blackstone, Commentaries on the Laws of England, § 432, *365).

 

[130] Hurtado v. People of California, 110 U.S. 516, 530 (1884). However, a private court system is an unadulterated decentralized system, unlike the common law, which is backed by government force. See Part III.B.2, above. Therefore, it will adapt more efficiently and more quickly to change than a common-law system would. See also Benson, “Customary Law as a Social Contract,” at 17, discussing the superior ability of the (private) Law Merchant, compared to the common law, to adapt and change in response to rapid changes in the commercial system.

 

[131] 3 Blackstone, Commentaries on the Laws of England, at *268.

 

[132] See also Benson, The Enterprise of Law, p. 283, n.42, and works cited therein.

 

[133] Richard A. Epstein, “The Static Conception of the Common Law,” J. Legal Stud. 9, no. 2 (March 1980): 253–89, at 254.

 

[134] Mises, Human Action, at 692 (emphasis added).

 

[135] On the subjective theory of value, see Mises, Human Action, at 94–97, 200–206, 331–33 et passim; Rothbard, Man, Economy, and State, chap. 1, § 5.A; and Alexander H. Shand, The Capitalist Alternative: An Introduction to Neo-Austrian Economics (New York: New York University Press, 1984), chap. 4, esp. §2.

 

[136] For a related discussion, see Friedrich A. Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1944), at chap. 10, “Why the Worst Get on Top.”

 

[137] Government power is always subject to abuse. The greater government’s role in society, the greater the chance for serious abuse. As Professor Epstein notes, “The smaller downside of a small government is perhaps its greatest virtue.” Richard A. Epstein, Simple Rules for a Complex World (Cambridge, Mass.: Harvard University Press, 1995), p. 316.

 

[138] See Leoni, Freedom and the Law, p. 178 n.5 (discussing a supermajority requirement as a way to tame legislators).

 

[139] The latter concept is advocated by many libertarians, and is often called the Fully-Informed Jury Amendment, or FIJA. See Don Doig, “New Hope for Freedom: Fully Informed Juries,” pamphlet published by the International Society for International Liberty. For discussion of the historical and natural right of jurors to judge the law’s validity, see also Comment, “The Changing Role of the Jury in the Nineteenth Century,” Yale L.J. 74 (1964; https://perma.cc/72RE-WDSK): 170–92; and Lysander Spooner, “An Essay on Trial by Jury,” in The Lysander Spooner Reader (San Francisco: Fox & Wilkes, 1992; version available online at http://www.lysanderspooner.org/works), at 122.

For other suggestions, see “Taking the Ninth Amendment Seriously” (ch. 21); Kinsella, “Constitutional Structures in Defense of Freedom (ASC 1998),” StephanKinsella.com (June 25, 2021); and idem, “Structural Safeguards to Limit Legislation and State Power,” StephanKinsella.com (Jan. 23, 2015).

[140] See also Herman, The Louisiana Civil Code: A European Legacy for the United States, pp. 46–47 (discussing the civil code’s “highly stylized, streamlined system of ownership”). Jacques du Plessis writes:

[T]he civil law of property, which does have an internal logic … does not easily correspond to anything known in the complex common law of property, with its “veritable jungle of concepts, many of which seemed to be merely the doubles of other concepts.”

Jacques du Plessis, “Common Law Influences on the Law of Contract and Unjustified Enrichment in Some Mixed Legal Systems,” Tul. L. Rev. 78, nos. 1 & 2 (December 2003): 219–56, at 249–50 (quoting F.H. Lawson, The Rational Strength of the English Law (1951), at 75, and also citing Ben Beinart, “The English Legal Contribution in South Africa: The Interaction of Civil and Common Law,” Acta Juridica 1981 (1981): 7–64, at 30–31).

 

[141] See Randy E. Barnett, “A Consent Theory of Contract,” Colum. L. Rev. 86 (1986; http://www.randybarnett.com/pre-2000): 269–321, at 287–91 (1986) (discussing problems with the theory of consideration).

 

[142] Louisiana Civil Code (https://www.legis.la.gov/legis/Laws_Toc.aspx?folder=67&level=Parent), art. 1967. For a discussion of the differences between cause and consideration, see Christian Larroumet, “Detrimental Reliance and Promissory Estoppel as the Cause of Contracts in Louisiana and Comparative Law,” Tul. L. Rev. 60, no. 6 (1986): 1209–30.

 

[143] Louisiana Civil Code, art. 1493.

 

[144] Louisiana Civil Code, art. 2589: “Rescission for lesion beyond moiety: The sale of an immovable may be rescinded for lesion when the price is less than one half of the fair market value of the immovable.”

 

[145] Another egregious provision in blatant contradiction to the individual right to absolute ownership of property is contained in articles 2626–27, which provide for expropriation of private property “wherever it becomes necessary for the general use.” Louisiana Civil Code, art. 2626. Of course, the United States Constitution suffers from the same defect. U.S. Const. Vth Amendment.

 

[146] See Thomas W. Tucker, “Sources of Louisiana’s Law of Persons: Blackstone, Domat, and the French Codes,” Tul. L. Rev. 44 (1970): 264–95; Rodolfo Batiza, “Origins of Modern Codification of the Civil Law: The French Experience and its Implications for Louisiana Law,” Tul. L. Rev. 56 (1982): 477–601, at 585 et seq. (discussing Blackstone’s influence on Louisiana’s civil code).

 

[147] Rothbard, Power and Market, in Man, Economy, and State, with Power and Market, p. 1053 n.4. See also idem, The Ethics of Liberty (New York: New York University Press, 1998), at xlviii–xlix (“While the book establishes the general outlines of a system of libertarian law, however, it is only an outline, a prolegomenon to what I hope will be a fully developed libertarian law code of the future. Hopefully libertarian jurists and legal theorists will arise to hammer out the system of libertarian law in detail, for such a law code will be necessary to the truly successful functioning of what we may hope will be the libertarian society of the future.”); idem, For a New Liberty, second ed. (Auburn, Ala.: Mises Institute, 2006; https://mises.org/library/new-liberty-libertarian-manifesto), at 282. On the limits of armchair theorizing, see Kinsella, “The Limits of Armchair Theorizing: The Case of Threats,” Mises Economics Blog (Jul. 27, 2006); also “Knowledge, Calculation, Conflict, and Law” (ch. 19), the section “Abstract Rights and Legal Precepts” and the following section; and “On Libertarian Legal Theory, Self-Ownership and Drug Laws” (ch. 23).

See also See Kinsella, “Roman Law and Hypothetical Cases,” StephanKinsella.com (Dec. 19, 2022) and “Knowledge, Calculation, Conflict, and Law” (ch. 19), at n.64, discussing the practice of Roman jurists developing the Roman law by exploring and answering hypothetical cases.

[148] Lawrence Friedman, A History of American Law, at 406, states that the Field “codes are the spiritual parents of the Restatements of the Law—black letter codes of the 20th century, sponsored by the American Law Institute, but meant for persuasion of judges, rather than enactment into law.” See also 3 Blackstone, Commentaries on the Laws of England at *267 (discussing problems that arise when a new system of law is legislatively codified rather than built upon the evolved wisdom of courts). For a fascinating discussion of the significance of both private and legislated codes for the development of law, see Alan Watson, “The Importance of ‘Nutshells,’” Am. J. Comp. L. 42, no. 1 (Winter 1994; https://digitalcommons.law.uga.edu/fac_artchop/668): 1–23.

 

[149] See Rothbard, For a New Liberty, p. 282 et seq. (discussing the separation of law and state).

 

[150] See note 6, above, and accompanying text.

 

[151] Watson, Failures of the Legal Imagination, p. 47 et seq. See also Watson, “The Importance of ‘Nutshells,’” on the significance of both private and legislated codes for the development of law.

 

[152] Hans-Hermann Hoppe, Economy, Society, and History (Auburn, Ala.: Mises Institute, 2021; www.hanshoppe.com/esh), p. 111 (based on his lecture “The Production of Law and Order: Natural Order, Feudalism, and Federalism” (2004; https://mises.org/library/6-production-law-and-order-natural-order-feudalism-and-federalism), starting at 1:07:30). See also the quote from Hadley in note 153, below. On the Weber reference, see generally, Max Weber, Max Weber on Law in Economy and Society, edited with introduction and annotations by Max Rheinstein, trans. from Max Weber, Wirtschaft und Gesellschaft, 2d ed. (1924), by Edward Shils & Max Rheinstein (Clarion, 1967); in particular, see Rheinstein, “Introduction,” and chaps. VII and IX. See also note 30, above, regarding one goal of codification efforts being legal certainty.

Moreover, as noted above, the differences between the modern common law and civil law systems are sometimes exaggerated. As one legal scholar notes: “As common law systems become more systematized and civil law systems more focused on jurisprudence as an authoritative source of law, the two systems are coming together more closely than one might guess.” Andrea B. Carroll, “Examining a Comparative Law Myth: Two Hundred Years of Riparian Misconception,” Tul. L. Rev., 80 (2006; https://perma.cc/CEP2-Z2BC): 901–45, at 942, citing, re the systematization of the common law, William D. Hawkland, “The Uniform Commercial Code and the Civil Codes,” La. L. Rev., 56, no. 1 (1995; https://digitalcommons.law.lsu.edu/lalrev/vol56/iss1/6/): 231–47, and, re the increasing focus of the civil law on jurisprudence, Vernon Valentine Palmer, “The French Connection and The Spanish Perception: Historical Debates and Contemporary Evaluation of French Influence on Louisiana Civil Law,” La. L. Rev. 63, no.4 (2003; https://digitalcommons.law.lsu.edu/lalrev/vol63/iss4/11/): 1067–1126, at 1118 n.148.

[153] On property law, see note 140, above, and accompanying text; on consideration, see notes 141–142, above, and accompanying text. See also James Hadley, Introduction to Roman Law (Littleton, Colo.: Fred Rothman, 1996; https://archive.org/details/introductiontoro029387mbp), p. 66 (“A recent able lecturer on ancient law, Mr. Maine, finds in this fact an explanation of the more thorough scientific development which distinguishes the Roman law from the English.”); and “Knowledge, Calculation, Conflict, and Law” (ch. 19), at n.64.

 

[154] 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 (1884), pp. 85–86; text available at Kinsella, “Another Problem with Legislation: James Carter v. the Field Codes.” When the job of judges is primarily to interpret statutes—as is the case for most federal judges interpreting federal law and the written Constitution, since there is no federal common law (see Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938; https://en.wikipedia.org/wiki/Erie_Railroad_Co._v._Tompkins)—then they are acting as mere functionaries interpreting words, not doing justice, since there is no reason to expect a document written by a government committee (legislation, the Constitution) to have anything to do with justice or natural rights. Thus, I have pointed out before that in this sense, and to this extent, these “judges” are really fake judges, not real judges.

See also the comments of Samuel Read on legal positivism, quoted in Kinsella, “Samuel Read on Legal Positivism and Capitalism in 1829,” StephanKinsella.com (Nov. 4, 2011):

… we observe every day men, and even legislators, pretending to reason concerning political justice and the general principles of law, as if there were 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.

 

[155] See also Herman, The Louisiana Civil Code: A European Legacy for the United States, p. 17; John Henry Merryman & Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 4th ed. (Stanford, California: Stanford University Press, 2018), discussing legislative supremacy in the civil law. N.b.: Louisiana’s civil law is derived in large part from Spanish and Roman sources, though using the French code’s style, organization, and sometimes text as the means to codify this Spanish-Roman law. This, by the way, is a controversial and complicated issue among Louisiana legal scholars; I tend to agree with Pascal and Levasseur, and disagree with Batiza and Herman, as a legal matter, despite disagreeing normatively with Pascal’s opposition to individualism and economic liberalism and despite agreeing with Herman’s more liberal and individualist inclinations. See Robert A. Pascal, “The Louisiana Civil Code: A European Legacy for the United States. By Shael Herman,” La. L. Rev. 54, no. 3 (Jan. 1994; https://digitalcommons.law.lsu.edu/lalrev/vol54/iss3/17/): 827–32; and Alain A. Levasseur, “Grandeur or Mockery?”, Loy. L. Rev. 42, no. 4 (Winter 1997; https://digitalcommons.law.lsu.edu/faculty_scholarship/321/: 647–725.)

 

[156] Louisiana Civil Code, art. 4 (emphasis added). See also commentary on this issue by Yiannopoulos and Pascal: A.N. Yiannopoulos, “The Civil Codes of Louisiana,” Civil Law Commentaries 1, no. 1 (Winter 2008; https://perma.cc/59DZ-KGSE): 0–23 (also included in idem, Civil Law System: Louisiana and Comparative Law: A Coursebook: Texts, Cases and Materials, 3d ed. (Baton Rouge, La.: Claitor’s Publishing Division, 2000)); and Pascal’s review of Herman cited previously, both as quoted in Kinsella, “Legislative Positivism and Rationalism in the Louisiana and French Civil Codes,” StephanKinsella.com (April 4, 2023). See also idem, “Logical and Legal Positivism,” StephanKinsella.com (June 23, 2010). Re rationalism, see also note 9, above. The 1804 French Civil Code, in English, may be found at Code Napoleon: or, The French Civil Code (London: William Benning, 1827; https://perma.cc/7CEZ-Q2D5).

 

[157] Herman, The Louisiana Civil Code: A European Legacy for the United States; Alain A. Levasseur “The Major Periods of Louisiana Legal History,” Loy. L. Rev. 41, no. 4 (Winter 1996; https://perma.cc/XB9F-WQYX): 585–628; Yiannopoulos, “The Civil Codes of Louisiana”; Richard Holcombe Kilbourne, Jr., A History of the Louisiana Civil Code: The Formative Years, 1803–1839 (Baton Rouge, La.: Center for Civil Law Studies, Louisiana State University, 1987). See also Merryman & Pérez-Perdomo, The Civil Law Tradition and Peter G. Stein, “Roman Law, Common Law, and Civil Law,” Tul. L. Rev., 66, no. 6 (1991–92): 1591–1604.

 

[158] Gregory Rome & Stephan Kinsella, Louisiana Civil Law Dictionary (New Orleans, La.: Quid Pro Books, 2011).

 

[159] W.W. Buckland & Arnold D. McNair, Roman Law and Common Law: A Comparison in Outline (Cambridge, England: University Press, 2d ed., revised by F.H. Lawson, reprinted with corrections, 1965).

 

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Kinsella profile-head - 1Stephan Kinsella is a libertarian writer and patent attorney in Houston, Texas. He has published widely on various areas of libertarian legal theory and on legal topics such as intellectual property law and international law. His  publications include Legal Foundations of a Free Society (Papinian Press, 2023), Against Intellectual Property (Mises Institute, 2008), and International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford, 2020).

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