From the White-PillBox: Part 59
Law – a tough White Pill to crack.
The topic of “law” either puts most people to sleep, or makes their heads spin. And it has a unique effect on freedom advocates: they often get themselves tangled in what appears to be a very complex subject, especially because (as always) statism takes an idea that is important, and twists it into something unrecognizable.
Yet buried deep in this problem we can find an important White Pill.
Law: what it ought to be
Here we try to clear the cobwebs of propaganda.
Like any human invention, law is a tool. Like any tool, it serves its purpose when it facilitates human efforts. If it’s not doing that, it’s in the way.
Law from the ground up
When humans interact, certain behaviors emerge. Some of them evolve because we find they make things better - they enhance our lives. Other behaviors are responses to the inevitable disagreements and conflicts that can happen. Over time we discover which behaviors and methods tend to better deal with this problem, and which do not.
These are what we call “norms”…social rules, usually unwritten, but understood by most everyone as part of the background of life. Basically, “norms” is shorthand for “the normal ways we interact”.
For example, many cultures evolved the norm of shaking hands when we meet. This could have emerged as a signal that the parties wanted to establish an initial understanding of their hope for a peaceful interaction, rather than a combative one. Nothing about this norm is “written in the fabric of reality” (like a law of physics). Rather, it emerged over time as a useful behavior.
In this way the “common law” emerges (in a condition of relative freedom). Some norms emerge that are conducive to settling disputes and handling conflict. This generally grows over decades or even centuries. In primitive times, those perceived as most experienced, such as elders, were asked to combine social norms with their own judgement and wisdom to decide a dispute. As time passed, their decisions were documented for future reference. This was useful for cases with similar attributes, or to employ methods of inquiry and judgement that worked well.
As society (and these norms) grew more complex, elders or tribal leaders were replaced with more learned professionals who specialized in dispute resolution. This is how the role of judges emerged.
In a relatively free society, judges succeed by virtue of their reputation for delivering fair and reasonable decisions. To be clear, they are not today’s government judges; they do not have legal authority. Rather they have a reputation for showing skill at understanding complex issues and delivering fair opinions.
The totality of these judgements are the society’s legal norms; they emerge over time and facilitate resolution of social disputes and conflicts. They necessarily persist with general sanction of the overall community, and are applied to the immediate needs of specific cases.
This is the healthiest way that “law” emerges. It happens without any one person or group establishing rules “top down”.
Top-down law, courtesy of the State
However, the idea of law as we have come to know it turns the original concept on its head. Law in its original, organic form became replaced by law decreed from on-high, as declared by a coercive authority. It is government law.
This is simply some men making rules that others have to obey. The whole edifice of government law is arbitrary, and therefore not reliable or stable, as a set of social norms 1.
A basic norm: the NAP
The non-aggression principle (NAP) holds it is wrong to initiate force against a person or their property. The NAP is already a norm 2. Most people already agree with it, and live that way, in their personal and business lives. It is one of the most fundamental, if not the most fundamental norm 3.
Nothing moral about government law
The NAP provides a baseline for peaceful human interactions. Government laws either happen to match this baseline, or they do not. If they match the NAP, they are unnecessary. If instead they contradict it - if they tell you what you can and cannot do, without your consent - they are tyrannical.
The State corrupts the very idea of law
Organic, emergent law is the key tool by which we remain civilized, peaceful, and productive. As a human culture we have an inner, unspoken respect for basic rules such as the NAP or the Golden Rule.
Their key attribute is that they are not imposed upon us; they emerge naturally.
But we can easily mix up these norms with government laws.
The State imposes edicts: top-down rules that an authority (government) creates, and that the people must follow upon pain of punishment.
People come to equate government law with proper behavior, even moral behavior. They are taught to “respect the law” in the way they would normally respect the consent or property of others. Whereas common law makes common sense (precisely because it closely aligns with the NAP), government law is incomprehensible, complex, and defies common sense.
With time, people forget that law was an organic, adaptive and useful tool. They no longer see it as a servant of man; as guidance for thinking through problems. Instead it becomes forced rules of behavior, with punishment for violations (law enforcement). But it becomes even more twisted in men’s minds. We are taught to see obedience to government laws as moral behavior. We are taught that breaking the law is evil.
Common, organic law cannot co-exist well with government law. Unfortunately government law is more likely to survive. The influential and powerful are motivated to use it, while there are no particular, organized defenders of common law.
Another corrupted idea: “a system of laws, not men”
This attractive sounding phrase is a great example of bait-and-switch.
The phrase conveys the idea that social rules (laws) should apply to all men…that no one is “above the law”.
Indeed, for norms such as the NAP, it makes sense. We would expect it to apply to everyone. No one, regardless of any specific attribute (such as wealth, birth, race, gender, etc.) has a special right to violate the consent of others.
It is another way of saying that no one is exempt from the social norms that keep the peace…the norms that help us work through our conflicts.
Then along comes the State. It changes law itself, from emergent normative rules, to legislative dictates. But it is happy to keep the positive social perception of common law - the positive impression people had - and make it appear that legislation has that same bedrock value.
But it can’t be anything but man’s whims
This is literally true. Legislation…top-down law…quite literally cannot escape man’s whims, because it is a product of man’s whims, and interpreted by man’s whims. While common law emerges because it is useful, government law forms because certain men want it…
Men write laws. They are not mystical revelations. They are written by human committees, and voted or decreed into existence.
Men decide what the laws mean. Bureaucrats, cops, prosecutors and judges make these decisions arbitrarily. Nothing determines what guides them…it is the forces at work upon them at the time they decide.
Men decide which laws to apply. The enforcers and judges pick and choose from their palette of laws. Again, there is no mystical guiding hand in this process.
Men decide how forcefully to apply laws. They may be firm, lenient, or even handed…at their whim.
In the end, men decide. The law is nothing more, and nothing less, than whatever a state employee says it is, in the circumstances of the moment.
Suppose the law says the speed limit is 65, and you drive 66. Will you get cited for breaking that particular law? Probably not. But they can if they want to.
Arbitrary, in a nutshell.
It cannot be otherwise. No invisible hand of justice exists that sits above men’s minds, and insures a fair and equal outcome 4.
The contrasts
We’ve identified two historical products of man’s mind: common law and government law. Despite both using the term “law”, they are utterly different.
Common law forms organically. Government law is arbitrary, top down and coercively enforced.
Common law serves its purpose of maintaining reasonable social stability. It is an unplanned, emergent and natural process. Government law is anything but natural. Men decide what it is; how it functions; how it is used. And all of this in the circumstances of the moment.
Common law persists insofar as it serves society. Government law persists by the perceived legitimacy of the idea that some men may have power over other men. And it serves the powerful, not general society.
Are they in competition?
The two types of law - based on common norms, versus government laws - are not in competition. This is because they do not seek the same goals. The former serves social stability; the latter serves the ruling class.
Rather than being competitors, they are enemies. And for the time being, government law has squashed much of the remnants of common law.
But that is a short-term perspective.
Common law - hiding in the foundation
When we examine the growing scope of private human choices, we can observe a solid substructure of common law.
Private adjudication is ubiquitous. In virtually all industries, many contracts stipulate that disputes will be handled by private arbitration, notably, outside of government courts. Contract law itself is a form of common law (government agencies themselves frequently contract in the private market to handle any number of legal functions).
At the consumer level, millions of disputes or problems are handled through private processes. Companies have HR departments and company policies. Credit card companies have fraud units. Many industries use third party standards certifications. There are consumer protection organizations. There are online review and feedback mechanisms.
Malls, stadiums, banks, hotels, etc. use private security.
Not to mention the numerous examples of scholarly work on how law could operate in a free society.
All of these are examples of a very real but mostly invisible foundation of private law - legal norms, so to speak - that exist today and generally function well. And when they are imperfect, the competitive market incentivizes them to learn and improve.
Government law, on the other hand, has no reason to self-correct. The incentives favor maintaining power in the hands of the ruling class. There is no reason for the State to serve real social needs.
The White Pill
The above examples of private law provide the White Pill. All of them exist and persist quietly in the background of life - here and now, today. They are here to stay, and are strengthening over time.
Government law, purported to serve social order, continues to fail miserably at it. While organic, private solutions fill the gaps left by the State.
Once again, we can see before our eyes how the State continues to make itself irrelevant.
And despite the indoctrination we are subjected to, law bears no relationship to morality.
It is easy to see this. Everyone can imagine a scenario in which they would disobey a law that conflicted with their own morality. For example, a law that required your child be forced to undergo medical experimentation.
To emphasize how the NAP is not a law in the “legal” sense, it helps to see how it works under the surface. Ask yourself why you find it valuable to refrain from hurting others; to refrain from stealing or damaging their property.
It’s because if you respect the person and property of others, you would expect others to do the same toward you. If you don’t start fights, others tend to not start fights with you. Similarly, there is reciprocity in the opposite behavior. If you use violence against others, you can well expect people to respond in kind.
Both examples show the reciprocal nature of the issue. You expect peace when you treat others peacefully; you would expect violence when you act violently.
It is precisely what we learned as children - to not hurt others or take their stuff. As children, when we did have conflict, what was a common response? “He started it!” Even children understand the strength of the social norm that condemns the initiation of harm.
It is worth noting that, except for freedom advocates, most do not refer to this idea explicitly as the Non-Aggression Principle. But this only reinforces how the NAP is a norm. People clearly behave according to the principal in their private, non-government-related interactions. And they do this almost universally. By any meaningful definition, this is a norm.
It is fair to acknowledge, of course, that even in private adjudication, those making the decisions are human. They are fully capable of rendering an arbitrary, capricious, or poorly reasoned verdict. There is no utopia.
But the quality of private law has every reason to be self-correcting and self-improving. With time, those who deliver unwise judgements suffer loss of reputation, while those who are known to deliver objective and fair verdicts would tend to succeed.