Okay, so people like this sidebar thing. I can’t promise I’ll do it every week, and this one really is just a repurposing of stuff I’ve written before (mostly in Suicide of the West), but just like $3.5 trillion in new spending, it don’t cost nothing! So herewith, a quick disquisition on law stuff.
There’s a story—possibly apocryphal—about Dwight Eisenhower when he was the president of Columbia University. As the campus was expanding, the school needed to lay down some new sidewalks. One group of planners and architects insisted that the sidewalks be laid out this way. Another group said they must go that way. Both camps believed reason was on their side of the dispute. “Legend has it,” writes Kevin Williamson, “that Eisenhower solved the problem by ordering that the sidewalks not be laid down at all for a year: The students would trample paths in the grass, and the builders would then pave over where the students were actually walking. Neither of the plans that had been advocated matched what the students actually did when left to their own devices.”
“There are two radically different ways of looking at the world embedded in that story,” he continues. “Are our institutions here to tell us where to go, or are they here to help smooth the way for us as we pursue our own ends, going our own ways?”
For a certain tribe of libertarians, this is how all laws should be made. We should discover through trial and error what the best policy is, and make it the law only when absolutely necessary. The “absolutely necessary” part is essential because the necessity is discovered when different parties have a dispute that needs to be adjudicated by the state, specifically a judge. My friend Daniel Hannan makes the case that this common law approach is one of the things that led to the English inventing liberty. I think he sometimes overstates that case, but the case he makes is strong nonetheless.
Aristocracy worked differently in England. Hannan attributes this to the fact that in Europe, Roman law was the norm, while in England it was something of an alien imposition that never took deep root in the soil. Roman law, like Napoleonic law, is “deductive.” Lawmakers determine a principle, write it down, and impose it on society. The self-confident planner says, “The path should be here.” The common law guy says, “Let the kids figure out where the path is,” and if someone can make a good case that their rights are being violated, or that the path is creating unfair or unworkable problems, we’ll figure out how to fix it to the satisfaction of both parties. Common law is an emergent property, bubbling up from society itself.
“Common law,” Hannan writes in Inventing Freedom: How the English-Speaking Peoples Made the Modern World, “is thus empirical rather than conceptual: it concerns itself with actual judgments that have been handed down in real cases, and then asks whether they need to be modified in the light of different circumstances in a new case.”
Consider the Magna Carta (the Brits don’t use “the,” but they also like Marmite, so why defer to them?) The Magna Carta came after the development of formal institutions of common law. In the late 12th century, Henry II created a system of circuit courts and even a central court of appeals. When the Magna Carta was struck half a century later, it recognized this development, creating a written precedent for the future. Likewise, the Magna Carta’s requirement that the king rule in consultation in “common counsel of the realm” was a nod to more ancient traditions while at the same time a new incalculably valuable precedent for the creation of a formal parliamentary system.
Friedrich Hayek, praise be upon him, has a lot to say about law, legislation, and liberty, which probably explains why he published a three-volume tome of his writings called Law, Legislation and Liberty. He argues for a distinction between law and legislation. I’m not going to get into the weeds on all this (though you might check out my recent G-File on why rules matter). But he definitely prefers laws that emerge from trial and error over laws imposed from above (“What has made men good is neither nature nor reason but tradition.”)
It’s not that he thinks all legislation—i.e. top-down law—is bad, but he thinks legislation can be far more dangerous. Legislation that bubbles up from below in the Schoolhouse Rock/Justim Amash way, is usually okay because it tracks the same process of discovery that judge made law does. But the nice feature of judge-made law—properly understood (thus leaving out things like Roe. v. Wade)—is that it stays close to the reality of a specific situation. A judge adjudicating a fight over a footpath at Columbia is not likely to hand down a ruling about all footpaths everywhere, for all time.
Legislation is easily corrupted by the quest for social justice, a term Hayek hated more than my old basset hound Norman hated a certain gray poodle (long story). Social justice starts from the premise that the perfectly just society is not only knowable, but legislatable. Because it isn’t and can’t be, making laws that conform with concepts of social justice is actually a writ for social engineering and rewarding favored groups under the false claim of justice (see anti-racism, critical theory, etc.). Social justice as a governing philosophy is incompatible with liberty and equality because it presumes to know how others should live and seeks to impose that vision from above. “While an equality of rights under a limited government is possible and an essential condition of individual freedom, a claim for equality of material position can be met only by a government with totalitarian powers.”
I could go on, but it’ll have to wait until another sidebar.
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