[From my Webnote series]
Ideally law ought to be developed in a decentralized fashion by judges, juries, arbitral tribunals applying developed legal principles based on libertarian ideas about justice and property rights, to new disputes and fact situations. This was the basic model of the two grand legal systems in history: the Roman law, and the English common law. Better yet if the state were not involved, but in any case, an decentralized, caselaw, organic system is to be preferred.
But we have a system now dominated by legislation, by statutory law. The Roman law was codified legislatively by Napoleon and others, resulting at first in elegant civil codes enacted by legislation and backed by the force of the state. This enshrined legislation as the supreme source of law–legal positivism. These are the continental legal systems, the so-called civil law. In the meantime even the relatively propertarian and elegant civil codes have been swamped by a deluge of inelegant artificial and special-interest favoring legislation. Meanwhile the English common law has also been gradually submerged in a flood of English statutes. The US English-influenced common law system has also become steadily dominated by state and federal statutes. This should be no surprise given that the fount of our law is the Constitution, itself nothing but a statute, a piece of legislation. Sure, the Constitution as legislation is broader and more general and aspirational than most modern specialized statutes, which means that it is vague and ambiguous and subject to arbitrary interpretation–and since it is the state’s courts that interpret it, this means that it will be construed over time to grant more and more power to the state. Don’t fool yourself: the Constitution is nothing special, and is not libertarian. It’s just a cover for a centralizing power grab.
When you get legislation law is divorced from justice. In a normal dispute, a case before some judge or tribunal, the court can attempt to “do justice” and find the right answer by appeal to developed legal principles and even abstract principles of justice. In such a system, it is at least possible for the legal principles that develop to be internally consistent–as the judge seeks to reconcile his decision with previous precedent and developed law–and to also be compatible with justice, since that is the purpose of such a dispute resolution proceeding. The law grows like a coherent crystalline structure on a substrate of justice and libertarian property rights. This is even true to some degree of civil law systems, even though they are based on legislated codes, since they are themselves elegant codifications of legal principles developed in decentralized form in the Roman law system. This is why scholars are able to speak metaphorically of the legal principles staked out by articles of a civil code as embodying a
plasma that bathes and nourishes an entire code and its institutions. The obligations articles are traditionally rich in analogies, making them, in Portalis’ famous phrase, “fertile in effects.”
But when law becomes dominated by legislation the judges’ job becomes merely to interpret words–words that have no necessary connection to justice; words of a statute decreed by a committee of corrupt, power-hungry political elites; a statute that embodies conflicting compromises and that has provisions not even guaranteed to be internally consistent, much less consistent with other statutes. For example, the Constitution itself is incoherent (it does not authorize censorship yet provides limits on what and how the state can censor; it does not authorize federal eminent domain yet places due process and compensation limits on this nonexistent power; it recognizes free speech rights yet authorizes the censorship of copyright) and contains ambiguous provisions (the interstate commerce clause, the general welfare clause, the patent and copyright clause, the necessary and proper clause). And the patent and copyright statutes empower the granting of monopolies, all the while the various antitrust statutes decry them, leading courts to helplessly conclude that there is “a tension” between antitrust and IP law. These modern statutes, even the Constitution, could hardly be viewed as enunciating principles of natural law that are embedded in a coherent “plasma” of natural justice. (The US Constitution is more abstract and general than modern statutes, and is based in part on organically developed principles of the English “constitution” that are somewhat compatible with libertarian principles, but as noted above, it is riddled with ambiguity, inconsistencies, and blatantly illiberal provisions precisely because it was the artificial decree of a committee of politicians, bureaucrats, and power-seekers. It is more accurate to say that the natural justice and libertarian principles that do inform parts of the Constitution’s fabric serve not to make it libertarian, but to give even its illiberal provisions legitimacy in the eyes of a confused and duped public. On this see Lysander Spooner’s comments about supporters of the Constitution being knaves or dupes.)
New York lawyer James Carter recognized this when he worte, in 1884, in opposing David Dudley Field’s attempt to (legislatively) codify New York’s common law, to replace case law with centralized legislation:
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!
This gives rise to a phenomenon I have referred to as “classificationism.” When the positive law becomes dominated by artificial state decrees–whether actual legislation, or administrative “rules” made by various federal “agencies,” or fumbling attempts by the courts to make sense out of mere words of a statute, the meaning of which is not connected to natural property or justice–then law devolves into endless squabbling and bickering over definitions and classifications.
There are a depressingly endless number of examples that could be given. Under the Americans with Disabilities act, what is, or is not, “reasonable accommodation” made by a business owner to the disabled? Who knows?
In copyright law, what is “fair use”? In patent law, when is an invention “obvious”? [continue reading…]
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