KOL129 | Speech to Montessori Students: “The Story of Law: What Is Law, and Where Does it Come From?”

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Kinsella on Liberty Podcast, Episode 129.

This is a lesson/lecture I presented to a group of “Upper Elementary” Montessori students today at my son’s school, The Post Oak School (Upper El includes 4th, 5th, and 6th grade students, and there were also a few third graders visiting from lower el, who are moving up next year). The students (25 or 30 or so) sat in a group at my feet, and were polite and interested the whole time. They asked many very intelligent and fun questions. I tried not to get too complicated, but did speak in fairly frank and sophisticated terms, tried not to talk down to them or dumb the talk down too much, and almost all of them hung in there till the end. The original plan was to speak for 40 or so minutes then take questions for another 15 or so, but we ended up going about an hour and 7 minutes, and then during lunch I had throng of students throwing more questions at me for another half hour. What amazing students; what an amazing school and educational approach. (This is one reason I love the Montessori approach; see my Montessori, Peace, and Libertarianism.) I included here only the main talk and Q&A, not the lunch banter. (An article prepared by 6th graders in the class, describing the lecture, appears in the first couple of pages of this issue of the class newsletter.)

I think this talk is suitable for kids from ages 9 to 16 or so.

The notes I used and handed out are reproduced below, with a few links added.

For more background on these topics, see the links below, as well as my short article Legislation and Law in a Free Society, adapted from my 1995 JLS article Legislation and the Discovery of Law in a Free Society, which contains detailed references; and my more detailed speech The (State’s) Corruption of (Private) Law, from the 2012 Annual Meeting of the Property and Freedom Society.

Update: Some people have asked me for further recommended readings, in legal history, etc. Unfortunately my library is packed away in boxes now for a renovation so I cannot peruse my legal theory/history titles, but from memory and some other notes I have, here are some suggested readings related to the talk. Some of my own personal favorites first:

• Bruno Leoni, Freedom and the Law
• Watson, Alan, The Importance of “Nutshells”
• Herman, Shael, The Louisiana Civil Code: A European Legacy for the United States
• Giovanni Sartori, Liberty and Law
• Alan Watson, Roman Law and Comparative Law
• The Story of Law, by John M. Zane (I haven’t finished it yet but liked what read so far) (also online)
• Arthur Hogue, The Origins of the Common Law
  
• See also my post Book Recommendations: Private, International, and Common Law; Legal Theory, and also: The Greatest Libertarian Books and  Other Top Ten Lists of Libertarian Books.

For some others:

• A History of American Law, 2d. ed., 1985, Lawrence M. Friedman
• Trakman, Leon E., The Law Merchant: The Evolution of Commercial Law
• Oliver Wendell Holmes, The Common Law
• Buckland, W.W. & Arnold D. McNair, Roman Law and Common Law: A Comparison in Outline
• The Bramble Bush: On Our Law and Its Study, by Karl N. Llewellyn
• Jhering, Dr. Rudolph von, The Struggle for Law
• Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition. “The latter is one of the greatest books (not just of law, but of any subject) I’ve ever read; and the former is full of interesting argument and facts. Berman also has a sequel, published a few years ago, that carries the story through the Protestant Reformation, but I haven’t read it yet. I venture to recommend it, sight unseen, on the strength of my admiration of its predecessor.” (Thanks to Robert Higgs.)
• Alan Watson, The Making of the Civil Law
• Rosalyn Higgins: Problems and Process: International Law and How We Use It
• Giovanni Sartori, Democratic Theory
• Merryman, John Henry, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 2d. ed. 1985 (book reviews by: Mary Ann Glendon, Robert O. Homes, Jr., Homer, A. M. Honore, and A.T. von Mehren; also Robert A. Pascal (diff book))
• See also the sources listed in Tom W. Bell’s discussion of “polycentric law”

Update 2:

I have no doubt I mangled a few historical and other details in my somewhat extemporaneous exposition. For example, here is one constructive criticism I received:

I am a satisfied subscriber to your KOL podcast, which I enjoy very much.  I just listened to episode 129 wherein you address a group of elementary-school students.  It really made me realize how intellectually void was the time I served in my local government school.

Anyway, around the 46 minute mark you got your definitions of robbery and burglary reversed.  Hopefully the kids weren’t taking notes.

Yep. He’s right. I got robbery and burglary backwards. Mea culpa!

The Story of Law:
What Is Law, and Where Does it Come From?

Stephan Kinsella
Post Oak School, []’s Upper El class
May 22, 2014

Discussion Notes/Outline

DIFFERENT TYPES OF “LAW”

• Descriptive:
  • Physics/causal (gravity)
  • Economics (supply and demand)
• Prescriptive/Normative:
  • Moral/ethical (honesty)
  • Legal rules (theft, murder)
    • Must versus should
    • Enforceable
      • Lady Justice (Themis)
        • Blindfold (impartiality)
        • Sword (enforcement)
        • Scales of justice (balance of the parties’ interests)

NATURE AND ORIGIN OF (LEGAL) LAW

• Written law (legislation)
• Custom, practice, common sense
• Ancient law:
  • Code of Hammurabi (Babylonian code, 1772 BC)
  • Ten Commandments (14^th to 12^th century BC)
  • Twelve Tables (Roman Law, 450 BC)
  • Magna Carta (1215)
  • US Constitution (1789)
• Major modern legal systems
  • English common law
    • UK/England, commonwealth (US, Canada, Australia)
  • European civil law
    • Based on Roman law
    • European countries, South American countries, others
  • Justinian codified Roman law (529-534 AD)
  • Napoleon codified French roman/civil law (Code Napoleon)
  • Exceptions to common law: Louisiana and Quebec have civil codes based on Code Napoleon
    • Scotland in the UK
  • Modern codifications: Uniform Commercial Code
• Other legal systems
  • Law Merchant (medieval; 11^th century)
  • Canon law (Catholic church)
  • Islamic law (Sharia)
  • Jewish law
  • International law
• Decentralized/customary/court-based law versus legislated law
  • Roman law and common law, versus modern statute or legislation based law
  • Civil law a mixture
  • Common law today becoming a mixture