Jurisprudence

Law is not something that 500 idiots who throw microphones at each other decide upon; and law is not whatever the majority decides it should be. The basis of law always has to be individual rights; all other law is plain coercion – have stick, will beat. And the branch of knowledge that deals with this is the philosophy of law – jurisprudence.

“Legislation is not law,” Sauvik says echoing Bruno Leoni. In a comment to this post of mine, he writes-

The solution lies in “private law” – that is, property, contracts and torts – without any “public law” entering our lives. Private law is what we willingly make and follow, like a contract, which is “law” only because 2 private people signed it, and it is binding on them.

I’d recommend Bruno Leoni’s “Freedom and the Law.”

This (pdf) is the book that he refers to. In the introduction, Leoni writes-

The paradoxical situation of our times is that we are governed by men, not, as the classical Aristotelian theory would contend, because we are not governed by laws, but because we are. In this situation it would be of very little use to invoke the law against such men. Machiavelli himself would not have been able to contrive a more ingenious device to dignify the will of a tyrant who pretends to be a simple official acting within the framework of a perfectly legal system.

If one values individual freedom of action and decision, one cannot avoid the conclusion that there must be something wrong with the whole system.

I do not maintain that legislation should be entirely discarded. Probably this has never happened in any country at any time. I do maintain, however, that legislation is actually incompatible with individual initiative and decision when it reaches a limit that contemporary society seems already to have gone far beyond.

My earnest suggestion is that those who value individual freedom should reassess the place of the individual within the legal system as a whole. It is no longer a question of defending this or that particular freedom—to trade, to speak, to associate with other people, etc.; nor is it a question of deciding what special “good” kind of legislation we should adopt instead of a “bad” one. It is a question of deciding whether individual freedom is compatible in principle with the present system centered on and almost completely identified with legislation. This may seem like a radical view. I do not deny that it is. But radical views are sometimes more fruitful than syncretistic theories that serve to conceal the problems more than they solve them.

Fortunately we do not need to take refuge in Utopia in order to find legal systems different from the present ones. Both Roman and English history teach us, for instance, a completely different lesson from that of the advocates of inflated legislation in the present age. Everybody today pays lip service to the Romans no less than to the English for their legal wisdom. Very few realize, however, what this wisdom consisted in, that is, how independent of legislation those systems were in so far as the ordinary life of the people was concerned, and consequently how great the sphere of individual freedom was both in Rome and in England during the very centuries when their respective legal systems were most flourishing and successful. One even wonders why anyone still studies the history of Roman or of English law if this essential fact about both is to remain largely forgotten or simply ignored. Both the Romans and the English shared the idea that the law is something to be discovered more than to be enacted and that nobody is so powerful in his society as to be in a position to identify his own will with the law of the land. The task of “discovering” the law was entrusted in their countries to the jurisconsults and to the judges, respectively—two categories of people who are comparable, at least to a certain extent, to the scientific experts of today. This fact appears the more striking when we consider that Roman magistrates, on the one hand, and the British Parliament, on the other, had, and the latter still has, in principle, almost despotic powers over the citizens.

In the same chapter, while attempting to define freedom, he writes-

People often mean by “freedom” (or “liberty”) both the absence of constraint and something else as well—for instance, as a distinguished American judge would have said, “enough economic security to allow its possessor the enjoyment of a satisfactory life.” The same people very often fail to realize the possible contradictions between these two different meanings of freedom and the unpleasant fact that you cannot adopt the latter without sacrificing to a certain extent the former, and vice versa. Their syncretistic view of freedom is simply based on a semantic confusion.

Other people, while contending that constraint is to be increased in their society in order to increase “freedom,” merely pass over in silence the fact that the “freedom” they mean is only their own, while the constraint they want to increase is to be applied exclusively to other people. The final result is that the “freedom” they preach is only the freedom to constrain other people to do what they would never do if they were free to choose for themselves.

Law, not legislation, is what is needed. And that is precisely what we won’t get in modern day democracies – dictatorships of the mob.

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Comments

  • Vipin  On December 26, 2008 at 12:55 pm

    an excellent post Aristotle. Thank you

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