A Praxeological Account of Law
What is law? I will attempt to answer this question using a praxeological approach. A good place to begin is to look at how the legal profession itself defines law. The website for the Oregon courts has an excellent summary[1] of modern law and courts. I will quote it at length:
Throughout history, people have had disputes and have needed some means to settle their disputes. As civil societies develop, they need an orderly system of conflict resolution. One system that developed in “western” cultures is the “law court” or court of law. In England, those early law courts developed a “body of law” called the common law, which defined both the rights of the people and the government and the duties people owe each other and their government. There was no legislature yet to adopt statutes.
English settlers brought this common law with them to the American Colonies, where it developed into the American common law. Over time, state and federal constitutions and statutes have superseded much American common law. Courts continue to look to the common law for guidance if no statute defines the rights and duties in a particular case.
As in other states, courts in Oregon are both rooted in this common law tradition and governed by a state constitution and statutes that supersede the common law. Oregon’s statutes are organized by subject matter in a set of books called Oregon Revised Statutes (ORS).
As in other states, Oregon law has two broad branches: civil law and criminal law, each with origins in the common law and each now governed primarily by statute.
Civil law includes statutes and “case law” that define or interpret individuals’ and organizations’ private rights in their relationships and disputes that involve property, contracts, personal injury, family relationships, tax, or government rules and regulations.
Because Oregon does not have laws that define every private right, courts rely on the “court-made” law called “common law” to resolve some disputes.
Criminal law is the body of laws that define a person’s basic rights in and duties to preserve a peaceful and safe society. A person who violates the duties to preserve social peace and safety may be guilty of a crime “against the people” and so face jail, prison, or some other punishment. In addition, if the lawbreaker’s act injured another (the “victim”), the victim may have a right to a private, civil law claim for damages.
Modern criminal law is almost all statutory. Criminal cases require courts to decide whether and how certain criminal laws apply and whether those laws as applied violate the state or federal constitution.
The legislature can change the common law by enacting a statute, so long as the governor does not veto the new law. The courts must follow that law so long as it does not conflict with the state or federal constitution. However, if no statute “governs” the issue in a particular case, the court may look to the common law rules for guidance.
When an appellate court must interpret statutory or common law in order to decide a case, the court’s decision becomes “precedent” for deciding future cases with similar issues.
A precedent that interprets a statute makes that interpretation part of the statute.
A precedent that applies the common law to a new situation becomes part of the common law.
Although courts usually “follow precedent,” courts may modify the earlier common law rules in some circumstances.
The legislature enacts other statutes that affect courts as well. The legislature determines the budget for the state courts and defines the amounts they charge for filing fees and other court fees. The legislature also defines how state courts collect fines and distribute the money collected.
This summary contains all the essential elements of the modern law. Americans have a common law tradition which forms the foundation on which the law rests. Statutes override the common law to force the courts to operate in accord with the State’s interests. Interpretation of the common law or statutory law forms new legal precedent. New precedents are folded into the common law and statutory law to extend the body of law.
Law touches every aspect of human behavior. It can be concerned with highly technical matters (for example, in patent disputes) or very elemental, visceral issues (such as, custody of the remains of a victim of a violent crime). It can become mired in issues of metaphysics, science and language. Law is potentially concerned with any aspect of human action and knowledge.
Not only is law unboundedly complex, the discussion of law is plagued by selfish interests. Law is like economics in the sense that:
Economics is haunted by more fallacies than any other study known to man. This is no accident. The inherent difficulties of the subject would be great enough in any case, but they are multiplied a thousandfold by a factor that is insignificant in, say, physics, mathematics or medicine-the special pleading of selfish interests. While every group has certain economic interests identical with those of all groups, every group has also, as we shall see, interests antagonistic to those of all other groups. While certain public policies would in the long run benefit everybody, other policies would benefit one group only at the expense of all other groups. The group that would benefit by such policies, having such a direct interest in them, will argue for them plausibly and persistently. It will hire the best buyable minds to devote their whole time to presenting its case. And it will finally either convince the general public that its case is sound, or so befuddle it that clear thinking on the subject becomes next to impossible.
Henry Hazlitt – Economics in One Lesson
The law is even worse, in this regard. Not only does it touch an even broader swath of human behavior (all of economics and everything else), the incentives facing special interests to manipulate the law have even greater and more immediate benefits than the manipulation of economic policies whose effects may not be felt for some time. Consider the large awards from civil lawsuits for ridiculous non-torts that make the news headlines from time to time, for example.
Defining law is complicated by the superficially abundant varieties of legal systems throughout the world. Law looks quite different in different cultures. The Afghans have their Pashtunwali, the Somalis have their Xeer. The English had their famed common law which still survives in many different forms. The Vatican has its Code of Canon Law. By far, the predominant form of law in the modern world is national, statutory law. It is so predominant, in fact, that most people today identify the word “law” with this system. In this article, I will defend the following definition: Law is a body of terms of settlement of disputes that usually succeed over time in preventing further open conflict which has been discovered through a process of trial and error.
Before Law
There was a time before law. If we go far enough back in our evolutionary ancestry, we reach a point where our ancestors were not yet verbal. Since the ability to speak and engage in complex, rational argument is a precondition for law, these ancestors could not have had law. At some point, our ancestors acquired the ability to speak. At some later point, law emerged.
Of course, even before our ancestors could speak, they could get into disputes. Disputes occur between other animals frequently. Without the ability to speak, there are fewer ways in which to resolve disputes. Usually, dispute resolution between animals involves intimidating displays of force, threats, and violent or even deadly conflict. Disputes are costly and risky so, even in the non-verbal animal kingdom, there are dispute avoidance mechanisms. Birds mark their territory with sticks, dogs with urine, and so on. The behavior of establishing publicly visible borders is important because, as long as others see and abide by those borders, disputes can be avoided.
When a dispute arose between our verbal ancestors who had not yet developed law, they had the option of talking about the dispute. If, after talking (perhaps shouting), they did not engage in physical violence, they had resolved their dispute verbally. People who could resolve their disputes verbally would incur less costs and risks than those who could not and, consequently, would enjoy an advantage in survival and reproduction. However, we know from experience that it is very difficult for two parties to resolve any serious dispute unaided since each party to a dispute tends to distort the facts and engage in special pleading in his own favor. One solution to this problem is to ask a disinterested third-party to hear the dispute and offer an opinion. People who were willing to bring their disputes to a third-party were more likely to resolve their disputes without the cost and risk of violent conflict and enjoyed an advantage in survival and reproduction over those who did not.
By the time of the earliest written history, law had already emerged – sometime between the first verbal arguments and the dawn of human history. Governments, too, had already emerged by the dawn of human history. Because most people identify “law” with national, statutory law, there is a tendency to presume that law emerged alongside or even after government emerged. But we can be confident that law emerged before government did because not all societies had or have government but all societies have law[2].
Hence, law is temporally antecedent to government. This is an important point because it means that it is possible to have law without government, a point which, it seems, most people today do not believe to be true. More importantly, if law is antecedent to government, then when governments emerged on the scene, they emerged in a pre-existing legal context. Today, we tend to identify dispute-resolution and the creation of law with government courts and legislation.
Something important happened between the time when law first emerged and the time of the advent of government. Prior to the emergence of government, disputes were resolved between disputants, possibly with the assistance of a third-party. Family relations and tribal or clan customs likely played a dominant role in the nature of law at the time. Law consisted of a body of norms which had emerged from use as effective rules for the final settlement of disputes without further conflict. The particular features or attributes of specific law systems are not as important as the general character of law – emergent and voluntary. Law was the alternative to violent conflict so participation in law was not coercive. It was simply an alternative to outright violent confrontation.
After the emergence of government, the character of law changed. Law not only emerged through the voluntary settlement of disputes, it was also dictated by governments. Participation in law was either required or prohibited in many instances. Prosecution eventually became a subsidized profession. I will argue that dictations fail to meet the criterion of being law since they do not emerge from the resolution of disputes. The difference applies to whether one should follow a law out of conscience or merely prudence. Decent people do not murder one another or wantonly pillage each other’s houses not only because it is illegal to do so but because it is simply immoral.
When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence, and it would be difficult for a person to choose between them.
Frederic Bastiat – The Law
How Disputes Arise
Morality can be thought of as the art of choosing right ends. I think it’s safe to say that most people choose their own ends without a great deal of introspection. But among those who do introspect and opine on morality, there is almost universal agreement that the choice of right ends cannot be based solely or even primarily on one’s own desires irrespective of social well-being. This is the central tenet of collectivism, which is the prevailing moral sentiment today and has been for a very long time.
But this is exactly wrong. The only sense in which an end can be “right” as opposed to “wrong” is the extent to which that end is a means to the ultimate end which every acting being has – satisfaction of wants. Satisfaction of wants is only apprehended subjectively.
… As a passive being [man] experiences sensations that are painful or pleasurable. As an active being he strives to banish the former and multiply the latter. The result, which affects him again as a passive being, can be called satisfaction*.* [Emphasis original]
Frederic Bastiat – Economic Harmonies[3]
This is might be mistaken for hedonism but hedonism tends to focus on the pursuit of pleasure as an end in itself. In a praxeological framework the pursuit of pleasure is just one means of attaining satisfaction. An ascetic, for example, attains satisfaction of his ends through the denial of carnal pleasures.
If I choose a particular course of action it is because I believe I am right to do so, that it is to my best and highest benefit to follow this course of action. And the same is equally true of another person who has chosen a course of action which conflicts with mine. Hence, we are not only involved in a dispute but we are each convinced, “I am the one who is in the right, I have the right to do as I’m doing and you are interfering with my rights.” I think this explains why normal people take legal disputes so personally.
However, I think right and wrong distract from the real issue which is the fact of conflict. Regardless of who is right or wrong, the problem is that my chosen means-end involves obstructing one of your chosen means-ends. I can only be happy by frustrating you. Disputes arise whenever the chosen means-ends of two individuals come into conflict.
Why We Bargain Rather Than Fight
If I’m living in a very primitive society and I get into an argument with one of my fellow men, what happens? There are no judges and may not even be a chief we can appeal to. So what do we do? One option is to fight. But if my opponent is much bigger than me, I will almost certainly defer to him rather than fight him. If I am much bigger than my opponent, I will gladly fight him and probably win. But if you take any two men at random, they will be about the same size, strength and ferocity with high probability because most humans are close to the average. I will probably be about as afraid of the person I am in a dispute with as he is of me. We each are going to be wary of the other.
Since we’re human, we can do something that other animals can’t: we can speak and reason. It might consist of a mix of shouting and posturing with reason but that is much better than getting my skull bashed in over whatever it was we were arguing about. If we resolve our dispute without further violence, then we have succeeded in a kind of cooperative voluntary exchange. We both agreed together to exchange our present circumstances – fight/standoff – for a better set of circumstances – bargained settlement. I would rather give up a little of my sustenance to avoid the uncertainty and risk of being involved in a man-to-man battle where I might get to keep everything or I might just lose everything.
This is a crucial point because it explains how both parties to a dispute are better off, even though it might superficially appear that the party who was in the wrong – and, thus, has to pay – loses out. Because he agreed to the terms of settlement voluntarily, we can be sure that he believed that settling was preferable to remaining in a state of open conflict. Hence, both parties are better off as a result of settling the dispute.
The cooperative nature of the settlement decision is the essential difference between the kind of exchange that occurs as a result of dispute-resolution and ordinary voluntary exchange (catallactic exchange). In ordinary voluntary exchange, each decision-maker is completely autonomous and his decision to exchange or not exchange is determined solely by internal factors within himself. But it is very difficult to get even two people to make one choice that they both agree is the best for the both of them taken together. Each party wants to keep everything and give up nothing. The prospect of violent conflict if the issue is not settled – and the uncertainty regarding the outcome of such a conflict – drives them to bargain with one another. There cannot be social order without the cattle-prod of the prospect of violent conflict driving disputants to arbitrate their disputes. Thieves would simply keep the proceeds of their theft and social order would necessarily disintegrate.
Testing the Settlement
After two people verbally argue out their differences, the dispute can either go back to a state of open conflict (perhaps a standoff), or it is resolved through some kind of mutually agreed (stipulated) settlement. If the parties settle, then – as time goes by – they will either abide by the terms of the settlement because they believe sticking to the settlement is the best choice among the alternatives or they will end up in a dispute again over this or something else (feud). Good settlements are proven by their ability to prevent a return to open conflict or standoff. Poor settlements are proven by the opposite. As many disputes are settled, people learn that certain kinds of settlement are likely to fail and other kinds are likely to succeed in preventing a return to conflict or standoff. Those terms of settlement that tend to work in preventing future conflict can be termedlaw. The profession of assisting people who are trying to bargain for terms of settlement of a dispute in choosing good terms of settlement (and avoiding poor terms of settlement) can be called arbitration.
Past Settlements Inform Future Behavior
But the story does not end here. Law itself feeds back and informs the means-ends choices that people make. Knowing that a certain course of action is likely to result in either direct conflict or unfavorable terms of settlement in arbitration makes that course of action – ceteris paribus – less attractive than it otherwise would have been. Such courses of action come to be perceived as unlawful. As a result of the settlement of disputes through mutual agreement to terms of settlement, society self-organizes and becomes lawful and orderly. A wise overlord is not needed. In fact, the Leviathan of Hobbes is a pox – it is the universal bully that – by virtue of its overwhelming power – may impose its ends upon all others. Such an organization is cancerous to lawful and orderly society.
Calculation Argument Applied to Law
Ludwig von Mises argued that socialism is impossible because governments are not subject to the market discipline of profit and loss and, therefore, they are unable tocalculate. That is, government simply cannot tell if it is making things better or worse, economically, even if it has perfectly altruistic intentions.
The paradox of “planning” is that it cannot plan, because of the absence of economic calculation. What is called a planned economy is no economy at all. It is just a system of groping about in the dark. There is no question of a rational choice of means for the best possible attainment of the ultimate ends sought. What is called conscious planning is precisely the elimination of conscious purposive action.
Ludwig von Mises – Human Action[4]
Exactly the same problem exists with planned law, or statutory law. Law that emerges from the mutual, voluntary settlement of disputes is informed by a process of discovery through trial and error. Settlements which worked in past disputes are likely to work in new disputes. Courses of action which are likely to result in unfavorable terms of settlement inform the choices that people make, thus reducing the incidence of disputes to begin with and making society more harmonious. The choice to arbitrate disputes in an orderly manner and accept the (sometimes painful) outcomes of orderly dispute-resolution is reinforced by the orderliness of society itself. That is, whereas disputants in earliest human history bargained with one another solely out of a desperate attempt to avoid the risks and dangers of open conflict, we have a long experience with the benefits to the individual of participating in orderly dispute resolution. This process of feedback on the choices people make continually drives the gangly process of cooperative, catallactic exchange in dispute resolution closer to a process of pure, catallactic exchange – the act of taking a legal risk becomes, more and more, an entirely conscious trade-off based on calculation of costs and benefits.
Statutory law, on the other hand, is informed by nothing more than glorified hunches. The author of statutory law cannot know – even if he has the most altruistic intentions – whether his law is going to reduce or increase the incidence of conflicts and he cannot know whether it will work in preventing future conflicts from buried dissatisfaction with the imposed terms of settlement. As Mises calls central, economic planning, it is a “system of groping about in the dark.”
The Bully Problem
In a very primitive society, the situation where one person is significantly stronger than another creates the potential for bullying. The bully enjoys a surfeit of rights vis-à-vis others weaker than himself. Simple verbal dispute in a primitive society does not provide any means to solve this problem. Other, more sophisticated social structures – such as the division-of-labor and specialization in the production of security – must emerge before the bully problem can be solved.
However, it is important to note that the bully problem is not solved by government. Hoppe ridicules the State:
Moreover, as ultimate judge the state is also a monopolist of taxation, i.e., it can unilaterally, without the consent of everyone affected, determine the price that its subjects must pay for the state’s provision of (perverted) law. However, a tax-funded life-and-property protection agency is a contradiction in terms: an expropriating property protector. [Emphasis added]
Hans Hoppe – State or Private Law Society[5]
The State can just as well be described as a “bullying bully-stopper”, an equally absurd notion.
The bully never actually engages in dispute-resolution because he does not need to. He simply imposes a condition that Mises termed autistic exchange on the terms of settlement.
Action always is essentially the exchange of one state of affairs for another state of affairs. If the action is performed by an individual without any reference to cooperation with other individuals, we may call it autistic exchange. An instance: the isolated hunter who kills an animal for his own consumption; he exchanges leisure and a cartridge for food.
…
Where there is no intentional mutuality, where an action is performed without any design of being benefitted by a concomitant action of other men, there is no interpersonal exchange, but autistic exchange. It does not matter whether the autistic action is beneficial or detrimental to other people or whether it does not concern them at all. A genius may perform his task for himself, not for the crowd; however, he is an outstanding benefactor of mankind. The robber kills the victim for his own advantage; the murdered man is by no means a partner in this crime, he is merely its object; what is done, is done against him.
Ludwig von Mises – Human Action[6]
The position of the State as the universal bully is precisely why I argue that statutory law is not law at all. Rather than allowing people to choose their own terms of dispute settlement, there is a universal generator of dispute-settlements (the State’s courts) which all disputants are compelled to patronize. The opinion of the individuals involved in the dispute regarding the quality and long-term workability of the imposed terms of settlement (judgment/decree) is mostly or completely irrelevant.
Another Approach to Property Rights
Consider the bully problem. Although bullies get their way, nobody believes (except the bullies themselves) that it is right that bullies should get their way. That is, nobody believes might makes right. The bully system of “law” is as an example of double-standards. There is one way for the bully and another way for everybody else.
The Austrian account of property rights – as exemplified in the writings of Hoppe or Rothbard – begins with two basic principles. The first principle is that of self-ownership. The second principle is that of original appropriation or homesteading. A corollary to these two principles is voluntary exchange.
The unspoken assumption of the homesteading principle is that, absent some reason why something should belong to one person rather than another, no one has any better claim to it than anybody else. Who owns the moon? Who owns Mars? There is a slice of the Antarctic continent, called Marie Byrd Land, which is not claimed by any sovereign nation. Who owns it? I can give no good reason why I have rights to exclusive use of some portion of the Moon or a portion of Marie Byrd Land. So, no portion of the moon or Marie Byrd Land is my property. These questions open up the larger question of how any physical thing came to be owned in the first place.
To grant some individuals a priori primacy in property claims is equivalent to the bully system of law – it is the grant of privilege or double-standards. I term this dual-law. The choice is between some version of homesteading on the one hand or dual-law on the other hand. A better reason must be given for why someone owns something than “because he’s stronger than everybody else” or else accept the assignment of property rights by a system of privilege, that is, dual-law.
But is it true that we can deduce a perfect system of property rules (rules for the resolution of property disputes) solely by means of reflection? I think the answer is no unless we mean meta-rules that are completely devoid of content, such as the rule that “some kind of reason must be given why a thing belongs to one person rather than another.” Rather, laws regarding the resolution of property disputes (that is, property rights) are no different than any other kind of law and emerge in exactly the same way – through a process of discovery by trial-and-error.
In fact, if we say that the rules of property can be deduced solely by means of reflection, then we are doomed to Marxism. The reason is simple – since no one has any better claim to anything than anybody else, nobody owns or can come to own anything. The homesteading principle itself should be dismissed as a piece of capitalist propaganda designed to lure the masses into accepting their own enslavement in a system of privilege through “property rights.”
But the fact of the matter is that the practice of owning things, of homesteading them, and so on is an integral part of human action. It is a brute fact of human action, and the disputes that arise in the process are also brute facts of human action. And the means which have been successful in settling these disputes in the past – property law – are also brute facts of human action. Hence, property rights emerge from the resolution of disputes about who owns what and the normative content of property rights is filled out by the same process of discovery through trial-and-error as any other law.
The Objective Approach to Law
Rothbard argued that the correct choice of means-ends is objective and, therefore, that morality is objective. However, I think this is incorrect. The correct choice of means-ends varies from individual to individual as a result of the fact of individual variation. One man likes chocolate ice cream and despises vanilla ice cream. Another man despises chocolate ice cream and loves vanilla ice cream. Morality, like taste, is subjective. However, certain patterns in morality emerge over time, just as patterns in taste emerge over time, in response to survival pressures. Rothbard (in EoL) uses the illustration of eating a poisonous mushroom as an example of an “objectively wrong” act. But here he is confusing the objective patterns of means-ends choices that exist in the population with right and wrong means-ends. There is no right or wrong, there just is. If you choose to eat a poisonous mushroom, you’ve chosen to eat a poisonous mushroom. If you die, leaving no offspring to pass on your proclivities for poisonous psychedelics to, it is less likely that people will choose the eating of poisonous mushrooms as a means-end to the ultimate end of satisfaction. This biological fact has created an observable pattern of poisonous-mushroom-avoidance in human behavior. But it is a mistake to confuse a pattern of human behavior with a moral norm.
The Utilitarian Approach to Law
Utilitarianism is another approach to discussing law.
A … reason to use practical rather than ethical arguments is that I know a great deal more about what works than about what is just… I think more is known about the consequences of institutions than about what is or is not just–that economics is a much better developed science than moral philosophy.
David Friedman – Machinery of Freedom
Friedman is correct as far as it goes – economics is in better shape than moral philosophy. However, the obvious question left unaddressed is why. Why is moral philosophy in such bad shape? The answer should be equally obvious – because the means by which social norms of any more consequence than please-and-thank-you are developed has been stunted. Specifically, we live in a world of statutory law. Law is centrally planned and the consequences to the quality of legal norms are no different than the consequences of central economic planning on prices. Rationality in law is impossible because we have removed the feedback which used to inform the law: the success or failure of a variety of terms of settlement in preventing further conflict. Law is no longer a process of trial-and-error, it is almost completely a planned process.
As Bastiat notes, we intuitively expect the law to conform to our moral notions. A world in which murder is legal and selling one’s labor is illegal would seem terrible and alien to any normal person. The line between law and moral norms is fuzzy (that is, when do you scold someone versus sue them?) but they are only different in degree, not in kind. I believe that the stagnation of moral philosophy vis-à-vis other disciplines is correlative with the stagnation in law itself. Without the crucial process of discovery through trial-and-error, we have no way to know what should be legal or illegal. That is, we have nothing better than force of opinion on which to argue what is right and what is wrong.
Conclusion
Law is a body of terms of settlement of disputes that has been discovered to work over time through a process of trial-and-error. Statutory law is centrally planned law and suffers from the same calculation problem that Mises expounded for economic central planning. Law informs the individual’s calculation of the tradeoffs regarding the risk of conflict with others versus the private benefits of a given course of action. Law is the ultimate mechanism by which social norms are discovered and the stagnation in modern law – a result of the stunting of the process of legal discovery through trial-and-error by statutory law – is correlative with the stagnation in moral philosophy.
A revolution in ideas about law is needed. This revolution must acknowledge the crucial importance of the status quo in law – in however bad repair modern law may be, it is still all we have. But it must also acknowledge the crucial importance of rebooting the process of trial-and-error in the resolution of disputes (that is, curtailing the making and enforcement of statutory law) in the lives of individuals. Some specific, concrete steps that can be taken toward this end include:
- Increasing reliance on arbitration instead of government courts (this requires the government courts to acknowledge the validity of arbitrated disputes)
- Eliminating all statutory regulation of entrance into the legal profession by anything other than private reputation systems
- Reducing the subsidy of public prosecutors and investigators
- Admitting change-of-venue to jurisdictions outside of the national courts hierarchy (in other words, permitting cases to be moved to other national courts or private systems of arbitration)
The moral confusion of society will continue to grow worse until the process of discovery by trial-and-error by which bad social norms can be selected out and good social norms can be preserved is restarted.
[1] http://courts.oregon.gov/OJD/aboutus/courtsintro/index.page?
[2] If we take the collection of taxes or the existence of some kind of compulsory obligation to a chief or lord to be the sign of the existence of a government, then tribal societies did not have governments even though they all had laws.
[3] §2.22
[4] Ch. 26
[5] http://www.lewrockwell.com/hoppe/hoppe26.1.html
[6] Ch. 10