I think that Friedman failed to sufficiently distinguish between customary (emergent) law and statutory (dictated) law. I don’t even consider the latter “law” at all, except in the colloquial sense. Law arose through the verbal resolution of potentially violent disputes.
I think economics tells us some useful things about law but I think that we need a “praxeological” re-writing of the foundations of law.
From an essay I’m writing in the background:
There was a time before human 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, abstract, 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 long 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. 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 some tribal societies did not have governments even though they all had laws.
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.
For the sake of simplicity, I will take the criterion for saying that government exists in a particular society to be the collection of taxes. Taxes are not collected in the manner of alms or religious offerings. Taxes are collected coercively. Superficially, this makes government no different than any other criminal organization which coercively expropriates property. But what makes governments unique among criminal organizations is their social currency or legitimacy which makes their coercion socially irresistible. Payment of taxes, unlike cooperation with criminal robbery, is seen by the public as a moral or legitimate legal duty. Tax evasion is itself considered a crime in the eyes of most people, at least in Western nations.
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 usually a better alternative than outright violent confrontation.
After the emergence of government, the character of law changed. Law not only emerged through case history, it was also dictated by the State. Participation in law was either coerced or prohibited in many instances. 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. Bastiat said, “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.” (The Law)
While I think Friedman’s contributions to the economic analysis of law are useful (and, in many cases, brilliant), I think there is a lot more that remains to be done on the subject.
Clayton -