On the Role of Commentators and Codes and the Oracles of the Law

by Stephan Kinsella on July 31, 2025

Related/cited:

On Commentators and Codes in Private Law, State Law, and Libertarian Law

I’ve pointed out previously the role of commentators and codification in the private law of systems such as the Roman law, the modern European Roman-based civil law, and the Anglo-American common law, and speculated also as to the role commentators, codification, and codes would play in a completely decentralized, legislation-free libertarian private-law legal system of a free society.

For the latter, the source of law would be a blend of abstract libertarian property principles and applications thereof in a decentralized legal system developing concrete legal rules and legal precepts in actual cases and disputes based on these principles and taking into account custom, local relevant facts, previous developed law, opinions of legal and other scholars and philosophers as well as the arguments of the parties’ legal advocates.

For the former positive law legal systems, which were originally mainly decentralized and court-based (Roman law and English common law), but became more of an admixture of legislation and decentralized case law. When deciding disputes, common law judges must now interpret not only law based on the common law, but also based on relevant statutes, of which there are increasingly many. ¹ This is true of judges in England, applying the English common law as well as the increasing mountain of legislated law (statutes), and other commonwealth countries and state courts in the US States.

In Europe and Latin America (and Louisiana and Quebec), the judges’ main job used to be applying statutes of a special kind: elegant civil codes that were, yes, legislated and enacted as statutes, but special statues that mostly codified legal principles developed under the Roman law and in centuries of European customary law, the Law Merchant, Catholic Church canon law, and so on. ² So their job, in interpreting and applying the (legislated) civil codes, was still akin to what common law judges did. but now, they, too, have to deal with increasing bodies of specialized, piecemeal statutes.

The situation faced by US federal judges is even worse because there technically is no federal common law just as there was no federal private law, since private law—contracts, crime, torts, property, and so on—was left to the states with their common law systems. Except when applying local state statutory or common law in diversity casts under Erie, federal judges apply only federal legislation and the Constitution which itself just a special kind of legislation—a special type, just as civil codes are special types of legislated private law, and one that does embody some principles of the English common law tradition, such as jury trial, habeas corpus, due process, and principles from the Magna Carta and even the Forest Charter. ³

Still, though the US Constitution may be viewed as special type of statute and one more related to English common law principles, unlike normal legislation and statutes, it is not really a codification of private law as European civil codes are but instead is the charter authorizing or creating—constituting—a new central American state. Its main purpose is to grant power to and constitute and authorize this new state, albeit with some paper limits and “rights” so as to quell fears of the US States and people at the time of ratification. ⁴ Thus, I have argued that federal judges mostly are not real judges and they are not interpreting or applying real law, for the most part. ⁵ Their job is not do do justice but just to interpret words and decrees of the legislature. ⁶

In any case, because all modern state judges often have to interpret statutes, various canons of statutory construction have emerged to aid judges in interpreting often unclear, ambiguous, contradictory, and sometimes absurd and clearly unjust statutes. ⁷ Most of these canons would not even be needed, or resorted to that often, without the existence or dominance of legislation as a primary source of and means of “making” law. But so it is. In any case, judges employ these canons and employ various secondary sources ⁸ and even when interpreting only principles of private law developed in a mostly decentralized (though still state based) system like the Roman law or English common law they can be influenced by secondary sources such as the work of legal scholars. This would also be true, perhaps even more so, of a purely libertarian legal system based primarily on fundamental libertarian principles of justice and property rights.

Let discuss now in more detail how this works under existing state positive law and then, how it would or could work under a private libertarian order.

Canons of Statutory Interpretation and Secondary Sources under Modern State Legal Systems

As noted, modern state-based legal systems are largely statute-based or often require interpretation and application of statutes enacted by the legislature. The judges also have to apply private law principles embodied in the private common law, in the UK, US States, and Commonwealth, and for US Federal judges when applying state common law; or, in civil law jurisdictions (e.g., Europe, Latin America, Louisiana, Quebec), private law as embodied in civil codes and related codes (criminal, commercial, procedural, evidence) which are legislation but special types of legislation based on private law principles developed in the decentralized Roman law and European customary law and European commercial practices and customs. ⁹

Stare Decisis and Jurisprudence Constante

In the common law jurisdictions, judges are more or less bound by stare decisis, or precedent, when deciding new cases. Older cases can be overruled, but there is great reluctance to do so, though this rule is somewhat relaxed for the highest courts like the US Supreme Court, especially when interpreting the Constitution since if the Court gets it wrong it is more difficult for the legislature to fix it. ¹⁰

Something similar, jurisprudence constante, applies when civil law judges interpret and apply civil law code articles. This is “the rule of law upon which repeated decisions in a long line of cases is based is entitled to great weight in subsequent decisions.” ¹¹ And for statutes, there are many canons of interpretation and secondary sources. Usually this comes up when a statute’s meaning is ambiguous, which is often the case because legislation is not necessarily rooted in reason or reality but is just the decree of the legislature; there is not even a guarantee that statutes are compatible with each other (compossible). As I wrote in On the Non Liquet in Libertarian Theory and Armchair Theorizing:

unlike statist systems based on positive law, libertarianism strives for consistency. ¹² All rights must be “compossible.” ¹³ As I noted in LFFS,

rules of conduct must be communicated ahead of time (ex ante); and they must also be sufficiently concrete to be applied in a variety of situations. These and other considerations lead to the conclusion that laws must be: “(a) general rules or principles that are (b) publicized, (c) prospective in effect, (d) understandable, (e) compossible, (f) possible to follow, (g) stable, and (h) enforced as publicized.”55 Otherwise, a rule cannot serve as an operational guide to conduct or will not be just.” ¹⁴

Canons of Statutory Construction

In any case, because statutes are not based on objective law and principles and are simply legislated, there is no reason for them to be just or a guarantee that they are compatible with each other, ¹⁵ this leads to conflicting positive “rights.” This then requires judges to “balance” “competing” “rights” or principles; ¹⁶ complete; ¹⁷ and certainly no guarantee that the legislated degree is just or fair or not arbitrary or even absurd. ¹⁸ There is, after all, a reason we libertarians distinguish malum in se (actions that are naturally wrongs, like murder, rape, theft) from malum prohibitum (actions that are merely prohibited, like drug laws or intellectual property laws).

Garner and Scalia ably summarize canons of statutory instruction in “A Dozen Canons of Statutory and Constitutional Text Construction.” These are too numerous (and tedious and somewhat obvious) to need to be repeated here.

Legislative Comments and History

Legislative comments and related history are often relied on, especially when statutes are ambiguous. ¹⁹ In the US, sources such as the Federalist Papers are often relied on by courts in construing the Constitution. For example, in Marbury vs. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall echoes Alexander Hamilton’s reasoning in Federalist Paper No. 78 for the Court’s power to invalidate unconstitutional laws.

Secondary Sources

Courts also consider a variety of secondary sources when interpreting legislation and constitutional provisions—legislative history, scholarly writings such as treatises, books, law review articles, and so on. ²⁰ Older treatises like Blackstone and Coke ²¹ are commonly consulted, for example. More modern treatises and encyclopedias used by practitioners, scholars, and courts, include Corpus Juris Secundum, American Jurisprudence 2d (AmJur), Halsbury’s Laws of England, Williston on Contracts, Prosser & Keeton on Torts, Corbin on Contracts, and so on.

The American Law Institute’s (ALI) Restatements of the Law are especially influential, ²² and there are other specialized local summaries of the law such as New York Jurisprudence, 2d, Texas Jurisprudence, 3d., California Jurisprudence 3d, and so on. (The Uniform Commercial Code, or UCC, codified common law principled but was then mostly enacted as statutes in the 50 US States, similar to the way civil codes codified Roman and European law and were enacted as statutes.)

For international law, Brownlie’s Principles of Public International Law, Oppenheim’s International Law, ²³ Shaw’s International Law, and the ALI’s Restatement (Third) of the Foreign Relations Law of the United States.

In addition to these treatises, scholarly works such as law review articles are often routinely cited and can be influential. There is a reason so many amicus briefs are submitted in important Supreme Court cases, often citing scholarship. As law professor Akhil Reed Amar writes,

In the Internet Age, does anyone still read law reviews? They seem so twentieth-century. Yet the Justices apparently still do look at law reviews. Almost half the cases decided with signed opinions last Term cited at least one law review article. In Heller itself, the various opinions invoked over a dozen articles, including a 1940 classic from the Harvard Law Review. Indeed, last Term was a banner year not just for gun wielders like Dick Heller, but also for the editors of the Harvard Law Review. All told, the Justices cited fifteen different HLR articles — more than double the article count of any other legal periodical. ²⁴

Because of their influence on the development of the law, scholarly commentators have been referred to—by Blackstone, and more recently by renowned figures such as Holmes and Pound, as the “Oracles of the Law.” ²⁵

Libertarian Law

Abstract Principles of Justice vs. Concrete Legal Precepts

Now in a private law, libertarian system, with no state and presumably no legislature and thus no statutes, we could expect law to be based on fundamental libertarian principles. However, abstract legal principles are not sufficient to guide conduct—or not as good as a developed legal system can provide. More concrete legal rules, or legal precepts, are necessary and can be expected to develop, as always have. ²⁶ Yet there are limits to armchair reasoning and the deductive approach since law is a very practical discipline. ²⁷ Context and evidence matters when courts attempt to do justice, according to fundamental principles of justice and property rights, which is why the private law developed under the roughly 1000 year periods of the Roman Law and the English Common Law developed from judges hearing cases between actual parties and deciding based on previous law, reason, intuition, and accepted principles of justice, and taking into account the local facts, customs, and particular circumstances. ²⁸ There was some limited use of hypotheticals in the Roman Law, but this was very limited. ²⁹ Therefore, while it is essential to have a clear understanding of basic, abstract, and general fundamental principles of justice that guide arbitrators and courts in deciding cases, the body of law that will apply will be developed over time. In addition, by waiting for actual disputes to arise that need to peacefully settled, resources and effort can be used to develop practical and useful legal rules that can cover future situations of the type that are likely to occur. As I wrote previously,

Legal rules must be concrete in the sense that the rules must take into account the entire relevant factual context. Since there are an infinite number of factual situations that could exist in interactions between individuals, a process which focuses on actual cases or controversies is likely to produce the most “interesting” or useful rules. ³⁰ It probably makes little sense devoting scarce time and resources to developing legal precepts for imaginary or unrealistic scenarios. If nothing else, a common-law type system that develops and refines legal precepts as new cases arise serves as a sort of filter that selects which disputes (i.e., real, commonly-encountered ones) to devote attention to. ³¹

An analogy to an insight of Mises comes to mind here, concerning the essential role of money prices in a catallactic economy. In a barter society, trade is hampered the double coincidence of wants problem. In addition, in a barter society, actors are hampered by the inability to compare heterogeneous goods and thus unable to easily compare possible future projects under consideration, in short, to engage in rational economic calculation so as to help forecast future profits of various possible uses of resources. Additionally, they are unable to engage in sophisticated cost accounting to determine whether or how profitable a given past endeavor was.

The emergence of money and money prices permits heterogeneous goods and factors and projects employing same to be compared in arithmetic terms. ³²

Regarding money, Mises wrote:

If the memory of all prices of the past were to fade away, the pricing process would become more troublesome, but not impossible as far as the mutual exchange ratios between various commodities are concerned. It would be harder for the entrepreneurs to adjust production to the demand of the public, but it could be done nonetheless. It would be necessary for them to assemble anew all the data they need as the basis of their operations. They would not avoid mistakes which they now evade on account of experience at their disposal. Price fluctuations would be more violent at the beginning, factors of production would be wasted, want-satisfaction would be impaired. But finally, having paid dearly, people would again have acquired the experience needed for a smooth working of the market process. ³³

In other words, without money prices it is much more difficult to engage in successful economic calculation because entrepreneurs, even if they are comparing forecasted future profit in money terms, have no present prices to start from. In an existing catallactic system, entrepreneurs know present prices (really, immediate past, historical prices) and can imagine a change in the existing price array, a delta, based on their judgment or verstehen, about imagined future conditions, to envision a forecasted future price constellation in which they can compare possible future projects under consideration. Without the current prices plus a forecasted future delta, imagining the forecasted future price arrays that has yet to come into existence would presumably be a more daunting task.

Something similar is the case with basic, general, and abstract principles of justice versus a more developed legal system generated in a dynamic decentralized law-discovery process. Simple rules like don’t murder and don’t steal can guide conduct and judges in deciding disputes, but if members of society and judges have at their disposal a richer body of law based on these principles, interpersonal actions can be coordinated far better and there is far more predictability and certainty. There is a reason that the Roman and common law which developed over centuries were resorted to time and time again in the case of disputes and conflict.

The Role of Commentators, Codes, and Secondary Sources under Libertarian Law

And thus, we can envision a libertarian society having conflict resolution systems, such as judges, arbitrators, and courts, that apply and develop legal principles based on widely shared basic and general principles of justice. To do this, there needs to be both articulated general principles, and a developed, and developing, body of law—legal precepts. In the beginning we have only intuition and experience to reveal to us the basic principles such as don’t steal, don’t kill, but experience allows a more refined understanding. A more developed understanding of these principles is now available in the libertarian understanding of justice, which itself is a consistent working out of more basic principles that were more or less present in the private law for the last two millennia and more. The accepted general principles will serve to guide courts in incrementally developing and advancing the law. The process is not only one-way, however; experience with developing practical bodies of law helps us refine and articulate the base principles themselves.

At this point our experience with at least 2500 years of developed private law and the modern libertarian understanding of history, law, disputes and conflict, the nature of the state, economics, and political philosophy and legal philosophy, and the work of libertarian thinkers ‘lo these past 70 of so years, leads to the conclusion that any transition to our quasi-free world to a freer world will have a legal and justice system dedicated to applying the core principles of justice by means of applying body of law that is compatible with these principles. Since the basic values and intuitions of the Roman law and the English common law are mostly in accord with libertarian principles, then just as entrepreneurs can more successfully calculate by using an existing price system, and recognizing the limitations of armchair reasoning, we can expect any future free society to take as its starting point existing bodies of private law—the Roman law and its modern civil law versions, and the modern Anglo-American common law, with the presumption that these rules are probably just, but with judges always on the lookout for incompatibilities between the these bodies of law and our fundamental principles.

Thus we could imagine a given society adopting the general legal principles and some existing body or bodies of private law insofar as they are compatible with general libertarian principles. Rules of the Roman law or common law that are incompatible with the past bodies of private law will cautiously rejected, and the law going forward improved and moved in a more just direction.

Why cautiously? Because of humility, awareness of our limits, respect for the fact that the modern bodies of law took an accumulated two millennia to develop, and because of Chesterton’s Fence:

The positive Roman/European continental and Anglo-American common law would only be presumptively just, and would have to be scrutinized with respect to more fundamental or abstract or general libertarian principles, and ultimately discarded if found wanting. It would be no surprise if this were the case; lots of statist or other assumptions play into the reasoning of jurists over the centuries. It would be a surprise if mistakes never happened. Of course a sense of caution or humility in jettisoning long-established rules would be warranted. As Chesterton noted:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, ‘I don’t see the use of this; let us clear it away.’ To which the more intelligent type of reformer will do well to answer: ‘If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.’ ³⁴

There are no doubt many parts of extant private law that would so need to be jettisoned. I have ventured to list some myself—such as the doctrine of consideration, the modern theory of contract, defamation and blackmail and trademark law, and so on. ³⁵ But the details are not important here.

Just as modern courts find it necessary and useful to consult the Oracles of the Law, even when deciding purely private law matters not governed by statutes—the writings of the jurisconsults, philosophers, legal scholars, and so on, in a decentralized libertarian legal system there would always be a role and need for commentators and legal scholars and philosophers and thinkers of liberty.

While we can attempt to formulate the general libertarian principles we adhere to, and I have attempted this myself, based on the thought of others, ³⁶ we cannot dictate ahead of time what secondary sources libertarian judges must resort to.

But we can hazard a guess. First, there would be the various seminal works such as noted above—modern civil codes, the ALI Restatements of the Law, and so on. Input and feedback from noted libertarian thinkers would also be crucial. And as the new legal system develops and starts to diverge from the previous private law systems of Roman and common law, there would be a role for legal scholars in the organization, systematization, and explication of the Libertarian Law of some community X. This could easily be envisioned to result in (non-legislated!) codes like the modern civil codes or Uniform Commercial Code, or a something like the American Libertarian Law Institute’s Restatements of American Libertarian Law.

Let me conclude with some quotes from previous writing by me and others on this topic.

As I wrote in Roman Law and Hypothetical Cases:

Judges could turn to theoretical work when extending the law or encountering unsettled issues. … And theorists would analyze the body of legal decisions, build on it in their theorizing, help to systematize the body of concrete rules, criticize them where they deviate from libertarian principles, and so on. Thus, they influence each other and play a symbiotic and complementary role. The courts need developed principles of justice and systematized descriptions of developed law, to decide disputes; and the legal theorists need relevant and real situations and decisions and a growing body of practical law to analyze, systematize, build on, and criticize in view of reason and general principles.

In other words, we cannot predict what rules will be voluntarily adopted in any given community, even if it is generally libertarian. Libertarian philosophers can help systematize and identify the abstract, general libertarian principles, while being wary of the limits of armchair theorizing, as we cannot deduce all the legal rules that would flow from abstract libertarian principles. Instead, law should develop organically and in response to real disputes where solutions may be found and used to develop the law further in subsequent legal disputes.

And in “Legislation and the Discovery of Law in a Free Society” (Part V.B, “The Role of Commentators and Codes”):

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. ³⁷ ))

See also Rothbard, The Ethics of Liberty (New York: New York University Press, 1998), Preface, 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.

And Rothbard, How To Have Law Without Legislation:

there exists another alternative for law in society, an alternative not only to administrative decree or statutory legislation, but even to judge-made law. That alternative is the libertarian law, based on the criterion that violence may only be used against those who initiate violence, and based therefore on the inviolability of the person and property of every individual from “invasion” by violence. In practice, this means taking the largely libertarian common law, and correcting it by the use of man’s reason, before enshrining it as a permanently fixed libertarian code or constitution. And it means the continual interpretation and application of this libertarian law code by experts and judges in privately competitive courts.

Continuing the quote from “Legislation and the Discovery of Law in a Free Society“:

(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.)

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 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 codifying and systematizing the body of case law that has been developed. ³⁸

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.

Conclusion

I am tempted to say, Let the work commence! But it is too soon to write such a restatement since this new body of law does not yet exist. It is premature and futile to armchair engineer such a code at present. But we can develop the general statement of principles and be ready for a time when the state has withered away and the legal systems of free societies turn to this task.

The Mountain of IP Legislation; “Legislation and the Discovery of Law in a Free Society.” [↩]
ChatGPT overview on European Civil Code Origins. [↩]
Robin Hood, Magna Carta, and the Forest Charter; see ChatGPT summary on Magna Carta and US Constitution. [↩]
Rockwell on Hoppe on the Constitution as Expansion of Government Power. [↩]
Federal Judges Aren’t Real Judges. [↩]
Another Problem with Legislation: James Carter v. the Field Codes. [↩]
See, e.g., Bryan A. Garner and Antonin Scalia, “A Dozen Canons of Statutory and Constitutional Text Construction,” Judicature 99, no. 2 (2015); CANONS OF CONSTRUCTION (adapted from Scalia & Garner. Fun fact: I took a helpful course on legal writing conducted by Garner my first year as a lawyer in 1992. In fact afterwards I ran by him a draft of an article which became “A Civil Law to Common Law Dictionary” (as published), 54 Louisiana Law Review 1265 (1994), which I later turned into a book, Gregory Rome and Stephan Kinsella, Louisiana Civil Law Dictionary (New Orleans, La.: Quid Pro Books, 2011), about which he wrote a nice blurb. [↩]
Wikipedia, Statutory interpretation; Wikipedia, Secondary source; Wikipedia, Secondary authority. [↩]
See generally Shael Herman, The Louisiana Civil Code: A European Legacy for the United States (Louisiana Bar Foundation, 1993); Kinsella, Legislative Positivism and Rationalism in the Louisiana and French Civil Codes. [↩]
Agostini v. Felton, 521 U.S. 203, 237–238 (1997) (“We reaffirm that ‘[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.’ … Adherence to this teaching by the District Court and Court of Appeals in this litigation does not insulate a legal principle on which they relied from our review to determine its continued vitality.”); Smith v. Allwright, 321 U.S. 649, 665–666 (1944) (“when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. This has long been accepted practice, and this practice has continued to this day. This is particularly true when the decision believed erroneous is the application of a constitutional principle, rather than an interpretation of the Constitution to extract the principle itself.”); Patterson v. McLean Credit Union, 491 U.S. 164, 172–173 (1989) (“The Court has said often and with great emphasis that ‘the doctrine of stare decisis is of fundamental importance to the rule of law.’ … Although we have cautioned that ‘stare decisis is a principle of policy, and not a mechanical formula of adherence to the latest decision,’ … it is indisputable that stare decisis is a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon ‘an arbitrary discretion.’ The Federalist, No. 78, p. 490 (H. Lodge ed. 1888) (A. Hamilton). … Our precedents are not sacrosanct, for we have overruled prior decisions where the necessity and propriety of doing so has been established. … Nonetheless, we have held that ‘any departure from the doctrine of stare decisis demands special justification.’ … We have said also that the burden borne by the party advocating the abandonment of an established precedent is greater where the Court is asked to overrule a point of statutory construction. Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done.”). [↩]
Kinsella, “Legislation and the Discovery of Law in a Free Society,” at n.43; see also “Knowledge, Calculation, Conflict, and Law,” at n.67; Rome and Kinsella, Louisiana Civil Law Dictionary. [↩]
See Kinsella, “What Libertarianism Is,” in LFFS, the section “Consistency and Principle”). [↩]
See Hillel Steiner, “The Structure of a Set of Compossible Rights,” The Journal of Philosophy Vol. 74, No. 12 (Dec., 1977): 767–775; Billy Christmas, “A Reformulation of the Structure of a Set of Compossible Rights,” The Philosophical Quarterly 69 (2019): 221–234; Tom G. Palmer, “A Review of Hillel Steiner’s An Essay on Rights,” Cato Journal 15, no. 2 (Fall/Winter 1995; also https://www.cato.org/cato-journal/fall/winter-1995): 289–291; also Balancing Intellectual Property Rights and Civil Liberties: A Libertarian Perspective [Transcript]; Libertarian Answer Man: Easements and Rights of Way; KOL420 | There Ain’t No Intellectual Property: The Personal Story of a Discovery (PFS 2023). [↩]
Kinsella, “Knowledge, Calculation, Conflict, and Law,” in LFFS, text at n.55. [↩]
Although the principles of legislative or parliamentary sovereignty means that later legislation should prevail in cases of conflict, which is why I argue that copyright law is unconstitutional, but even here courts simply handwave this way and try to “balance” the interests of copyright law (based on the 1789 copyright clause in the Constitution) with interests of freedom of the press in the 1791 First Amendment. Copyright is Unconstitutional. [↩]
Balancing Intellectual Property Rights and Civil Liberties: A Libertarian Perspective [Transcript]; The Schizo Feds: Patent Monopolies and the FTC (IP vs. antitrust); The Schizophrenic State; Price Controls, Antitrust, and Patents; Antitrust vs. Trademark Law; IP vs. Antitrust; Copyright is Unconstitutional (free speech vs. copyright). [↩]
This can lead to a non liquet, or gap in the law; see On the Non Liquet in Libertarian Theory and Armchair Theorizing. [↩]
E.g., antitrust law outlaws charging too high of a price (having and abusing a monopoly), too low of a price (in an attempt to monopolize, via predatory price cutting), and the same price as others (collusion). See Dominick Armentano, Antitrust: The Case for Repeal; idem, A Critique of Neoclassical and Austrian Monopoly Theory; idem, A Politically Incorrect Guide to Antitrust Policy; Kinsella, Abolish antitrust law and the real monopoly: the state, KOL018 | “Libertarian Legal Theory: Property, Conflict, and Society, Lecture 1: Libertarian Basics: Rights and Law” (Mises Academy, 2011). See also Another Problem with Legislation: James Carter v. the Field Codes; Federal Judges Aren’t Real Judges. [↩]
William Baude and Ryan D. Doerfler, “The (Not So) Plain Meaning Rule,” U. Chicago L. Rev. 84, no. 2 (Spring 2017): 539. [↩]
Wikipedia, Statutory interpretation; Wikipedia, Secondary source; Wikipedia, Secondary authority. [↩]
William Blackstone, Commentaries on the Laws of England (Oxford Edition, Wilfrid Prest, General Editor, 2016); Edward Coke, Institutes of the Lawes of England. [↩]
Shyamkrishna Balganesh, “Relying on Restatements,” Columbia L. Rev. 122, no. 8 (December 2022): 2119–2186. [↩]
Fun fact: Oxford’s Professor Dan Sarooshi, a good friend of mine from my days in London at King’s College London and London School of Economics, is engaged in the update of Oppenheim, along with Sir Christopher Greenwood. Sarooshi got his PhD in Laws under Dame Rosalyn Higgins, under whom I took an influential course at LSE. See The Louisiana Civil Code of 1825: Content, Influences and Languages; Past and Future: Returning to my Louisiana Roots; see also Epstein on Roman Law. [↩]
Akhil Reed Amar, “Heller, HLR, And Holistic Legal Reasoning,” Harv. L. Rev. 122 (2008): 145-190, p. 145, referencing District of Columbia v. Heller, 128 S. Ct. 2783 (2008). [↩]
Blackstone, Commentaries on the Laws of England , Volume I, Section 69; Oliver Wendell Holmes, Jr., “The Path of the Law,” Harv. L Rev. 10 (1897): 457; Roscoe Pound, Interpretations of Legal History (Gloucester, Mass.: Peter Smith, 1967 [1923]), p. 164. See also John P. Dawson, The Oracles of the Law (Ann Arbor: University of Michigan Law School, 1968). [↩]
On the distinction between abstract legal rights and more concrete rules that serve as guides to action, see “Legislation and the Discovery of Law in a Free Society” and Kinsella, “Knowledge, Calculation, Conflict, and Law,” in LFFS, the subsection “Abstract Rights and Legal Precepts” and the section “The Third-Order Problem of Knowledge and the Common Law,” text at n. 24 et seq. [↩]
See On the Role of Commentators and Codes; “Legislation and the Discovery of Law in a Free Society,” in LFFS, Part V.B, “The Role of Commentators and Codes”; also Roman Law and Hypothetical Cases. [↩]
[↩]
Roman Law and Hypothetical Cases. [↩]
This is analogous to Mises’s method selecting certain empirical assumptions (e.g., assuming there is money instead of barter) to develop “interesting” laws based on the fundamental axioms of praxeology, rather than irrelevant or uninteresting (though not invalid) laws. See Mises, The Ultimate Foundation of Economic Science, p. 41; idem, Epistemological Problems of Economics, pp. 14–16, 30–31, 87–88; idem, Human Action, pp. 64 et seq. See also Hoppe, A Theory of Socialism and Capitalism, p. 142, as quoted in “Causation and Aggression” (ch. 8), n.4. See also “A Libertarian Theory of Punishment and Rights” (ch. 5), n.36. [↩]
“Knowledge, Calculation, Conflict, and Law,” at n.65. See also Kinsella, “Mises: Keep It Interesting,” StephanKinsella.com (Oct. 16, 2010). [↩]
Jeffrey M. Herbener, Calculation and the Question of Arithmetic, RAE, Vol. 9, No. 1, (1996); The Economics of a Post Scarcity Universe – What Happens When Everything Is Free?; also KOL337 | Join the Wasabikas Ep. 15.0: You Don’t Own Bitcoin—Property Rights, Praxeology and the Foundations of Private Law, with Max Hillebrand; Am I a Bitcoin Maximalist? [↩]
Ludwig von Mises, Human Action: A Treatise on Economics, Scholar’s ed. (Auburn, Ala.: Mises Institute, 1998), chap. XVI, quoted in Kinsella, “”Knowledge, Calculation, Conflict, and Law,” n.32. [↩]
Examples of Libertarian Law vs. Louisiana vs. French vs. Common Law: Consideration and Formalities. [↩]
Examples of Libertarian Law vs. Louisiana vs. French vs. Common Law: Consideration and Formalities. [↩]
For an example of a concise statement of the basic principles of libertarian justice, see Aggression and Property Rights Plank in the Libertarian Party Platform. [↩]
Murray N. Rothbard, Man, Economy, and State, with Power and Market, Scholars ed., second ed. (Auburn, Ala: Ludwig von Mises Institute, 2009) p. 1053 n.4 (Power and Market, ch. 1); idem, For A New Liberty, second ed. (Mises Institute, 2006), at 282. [↩]
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): 1–23. [↩]

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On the Role of Commentators and Codes and the Oracles of the Law

On Commentators and Codes in Private Law, State Law, and Libertarian Law