Why isn’t this a front-page article? It makes Long’s extensive article “Why Does Justice Have Good Consequences?” seem like so much wasted breath, like a floundering defense of a broken idea: objective ethics. To paraphrase Hazlitt, Ethics were made for man, not man for ethics. Given that, it is perfectly obvious why justice/capitalism/liberty has good consequences: the rules governing each were chosen for precisely that purpose, and stuck as custom because they worked for that purpose.
With that in mind, I would like to add as an aside that such systems are not one-size-fits-all, and different societies will require somewhat different rules to be upheld in order to “provide for human welfare as bountifully as possible.” This is a side point from the main thrust of article, which I think is to extricate ourselves from the muck of deontology and other semantic games, but here is some insight I hope is not lost.
(from my perpetual favorite article on customary law: http://faculty.msb.edu/hasnasj/GTWebSite/Obvious.pdf)
Uniformity
Supporters of government claim that government is necessary to ensure that there is
one law for all and that the law applies equally to all citizens. If the government does
not make the law, they contend, there would be no uniform code of laws. People in
different locations or with different cultural backgrounds or levels of wealth would
be subject to different rules of law.
The proper response to this is probably the one Woody Allen made to Diane
Keaton in Annie Hall when she complained that her apartment had bad plumbing
and bugs, which was: “You say that as though it is a negative thing.” How persuasive
is the following argument? Government is necessary to ensure that there is one style
of dress for all and that all citizens are equally clothed. If the government does
not provide clothes, there would be no uniform mode of dress. People in different
locations or with different cultural backgrounds or levels of wealth would be clothed
in garments of different styles and quality.
Why would anyone think that uniformity in law is any more desirable than
uniformity in dress? The quest for uniformity leads us to treat the loving husband
who kills his terminally ill wife to relieve her suffering the same way we treat Charles
Manson, to apply the same rules of contracting to sophisticated business executives
purchasing corporations and semi-literate consumers entering into installment
contracts, and to act as though the slum lord in the Bronx and the family letting their
spare room in Utica should be governed by the same rules of property law.
There are, of course, certain rules that must apply to all people; those that provide
the basic conditions that make cooperative behavior possible. Thus, rules prohibiting
murder, assault, theft, and other forms of coercion must be equally binding on all
members of a society. But we hardly need government to ensure that this is the
case. These rules always evolve first in any community; you would not even have a
community if this were not the case.
The idea that we need government to ensure a uniform rule of law is especially
crazy in the United States, in which the federal structure of the state and national
governments is designed to permit legal diversity. To the extent that the law of the
United States can claim any superiority to that produced by other nations, it is at
least partially due the fact that it was generated by the common law process in the
“laboratory of the states.” Allowing the development of different rules in different
states teaches us which rules most effectively resolve disputes. To the extent that the
conditions that give rise to disputes are the same across the country, the successful
rules tend to be copied by other jurisdictions and spread. This creates a fairly uniform
body of law.10 To the extent that the conditions that give rise to disputes are peculiar
to a particular location or milieu, they do not spread. This creates a patchwork of
rules that are useful where applied, but would be irrelevant or disruptive if applied
in other settings.
One of the beauties of the common law process is that it creates a body of law
that is uniform where uniformity is useful and diverse where it is not. This is the
optimal outcome.
Government legislation, in contrast, creates uniformity by imposing ill-fitting,
one-size-fits-all rules upon a geographically and ethnically diverse population. Once
again, not only is government not necessary to the creation of a well-functioning
body of law, it is a significant impediment to it. Please consider this the next time
you find yourself wondering why all businesses must be closed on Sunday in the
Orthodox Jewish sections of Brooklyn.
10Fairly, but not fetishistically. The law against homicide functions quite effectively
despite the fact that the definitions of first and second degree murder and voluntary and
involuntary manslaughter differ from state to state.