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To Alter Or To AbolishChapter 16Conflicts of LawWritten by Darrell Anderson. Law is order, and good law is good order. Aristotle, Physics The normal and natural desire for social order, and typically a subsequent desire for a formal structure for that process, is recognized in two general forms: vertical and horizontal. The former structure is similar to the top-down model Thomas Hobbes proposed, and the latter structure is similar to the bottom-up model of John Locke.[1] Although optimally a specific society of people is governed by general principles and not by the will of a certain minority of people, there remains an obvious inconsistency with such a philosophy. All individuals are ignorant of some things and have no ability to foresee all the effects of any decision — no human is omniscient. Thus, who is to decide what the general principles should be?[2] Can a selected group of people be entrusted or enabled to enact laws that provide boundaries for all people when nobody can determine all the effects of any law? The world is bigger than anyone can know. All humans suffer from being creatures of limited knowledge. Because of those limitations, all decisions face the possibility of unintended consequences. Thus, to what extent can such laws be written? Are laws to be written in a general nature and then interpreted according to the spirit of liberty of action and protection of property, or shall laws be written with a high degree of specificity and interpreted according to the “letter of the law”? The former approach is open to abusive interpretations, the latter is open to abusive misapplications. Recall that by definition, a law describes a process possessing a repeatable, fixed, and unchangeable behavior. The concept of the “rule of law” is a process of determining what human-made law ought to be.[3] That process must address the issue of “with respect to what”? History affirms four assumed sources for human-made law:
Those sources are noticed through three philosophies about law:[4]
None of these sources dominate, nor do any of the philosophies. Human-made law is a combination of sources and philosophies.[5] Like all human social conventions, a rule of law is an idea, an abstract construct used to reduce conflict and violence. A rule of law cannot exist when proper relationships do not exist.[6] Because of the challenge of limited knowledge, laws only can address knowable boundaries, not unknown. Thus, a rule of law is a process of recognizing knowable boundaries. The only boundaries individuals can hope to readily identify are the boundaries of property titles and associated rights. The only individual who can define property boundaries is the titleholder. All other boundaries must be defined explicitly and be made easily knowable. Only from this perspective can human laws make sense. The concept of a rule of law process establishes several characteristics of “law-making”:[7]
Liberty of action acknowledges possible boundaries but is freedom from fiat boundaries.[8] Fiat means by decree. Such decrees often are made under the color of law. Color of law: acting under the pretense that a statute or custom, whether or not necessary, provides justification to bypass, evade, or ignore known or accepted boundaries. The question then becomes what defines a law? Laws come in two forms, natural and artificial. Natural or physical laws simply exist, and like all natural principles, must be discovered. Physical laws cannot be changed by humans, only studied and applied. Physical laws are “fixed and immutable” and are known by using rational abilities of discovery and reason.[9] Because physical laws exist without human invention or intervention, physical laws affect all people. The law of gravity is an example. Conversely, artificial law is completely human in origin. Because human-made law does not exist until people put forth a positive effort to create law, human-made law often is called positive law and the process is called legal positivism. With respect to definitions, the form or nature of human-made law is irrelevant. If a law is derived from humans, that law is both artificial and positivist. Therefore, positivism is neither “good” nor “bad,” but merely a description of the process whereby humans create knowable boundaries for human action. Unlike physical laws affecting all people, however, artificial laws often affect only certain people in certain situations. Many individuals believe that human relationships are governed by physical laws; that is, human interaction can be regulated by observing the natural order of the universe. Advocates of natural law believe that God, Nature, or Nature’s God has provided humans sufficient information to regulate relationships and actions. To many supporters of natural law, the source of natural law is not as important as merely recognizing that such principles exist. These natural laws provide boundaries defining human interaction and relationships. Those boundaries are recognized through property rights, including the property of one’s own body and the products of applying labor. The concepts of rights are derived from the desires to promote happiness, individual and mutual survival, and to provide boundaries to discourage and prevent trespass. The foundational focus of human-made laws is to provide a peaceable means of resolving and reducing conflict.[10] Thus, such concepts are said to be natural laws because such boundaries evolve through many years of human interaction. Natural law is thought to serve as an objective standard through which all human-made positive law can be measured.[11] Many positivists reject such thinking, or deny that natural law has any place in adjudication or legislation.[12] Some positivists assume that natural law does not apply to human relationships and positive human action is necessary to provide boundaries.[13] Positivists do not necessarily believe humans suffer from ignorance and fail to recognize knowable boundaries, although to a degree some positivists believe this; but more so believe that all human laws must be positively declared regardless of the source of those laws. All human-made laws are derived arbitrarily. Nature knows no systems because nature knows no boundaries. All systems are human constructs, designed to help people understand the universe. Thus, all artificial law is by definition arbitrary — not an observable universal physical law. Human positive law evolves in two arbitrary forms, customary and authoritarian.[14] However, the phrase authoritarian law is misleading. An authority is somebody in whom other people perceive as superior in some manner.[15] There are two types of authority: rational and irrational. Rational authority is based upon mutual goals and benefits and is bilateral in nature. There is both giving and receiving involved. Irrational authority is unilateral and is intended to be a means of exploiting other people. Relationships based upon rational authority tend to dissolve because the people involved reach a point of equilibrium. Conflict tends to increase when superiority is based upon exploitation and the relationship intensifies.[16] An authority is a subject matter expert and the word should not be confused with people who operate under the color of law. One who operates under the color of law and claims to be an authority is claiming to be a subject matter expert — something that often is routinely contested. A better description of authoritarian law is dictatorial, totalitarian, autocratic, tyrannical, or despotic law. When in written form laws often are said to be statutory. However, that a law is written does not necessarily reveal the original source or derivation of that law. Physical laws exist by definition, but humans nonetheless often articulate such laws in writing. Science and engineering textbook authors do this all the time. Artificial law usually is written. Generally, however, today most statutory law is legislative law,[17] as opposed to being customary law. Fundamentally, customary law is “a collection of societal rules developed outside any formal written frameworks.”[18] There is some overlap, but customary law should not be associated totally with English common law (judge-made or judge-found law). Although also depending upon customs, traditions, and precedents, English common law often was influenced by dictatorial law or people, and as the English common law system grew, many English common law judges were employees of the king. Customary law perceives all trespasses as torts. The word tort is used generally and means any trespass committed against another individual or individual’s property. No distinction is provided regarding the form or nature of the trespass, or the procedure to be used to recognize and remedy a tort. Because all worldviews are built upon presumptions, so too must all legal models be built upon presumptions. Unless or until there is a general agreement about how a legal system should function, and what the purpose of that system should be, there always will be conflicts of law. The only peaceable solution is to allow people to choose the legal model they prefer to embrace. Finis. Next: Chapter 17 — Morality and Vices Endnotes [1] Hirshleifer, “Anarchy and Its Breakdown,” p. 48. [2] Hayek, The Constitution of Liberty, p. 174. [3] Hayek, The Constitution of Liberty, p. 206. [4] Berman, Law and Revolution, pp. vi, 12. [5] Berman, Law and Revolution, p. 13. [6] Zane, The Story of Law, p. 49. [7] Dicey, The Law of the Constitution, pp.107–122, 182. [8] Hayek, The Constitution of Liberty, p. 178. [9] Epstein, Simple Rules, p. 311, citing the Roman Justinian. [10] Berman, Law and Revolution, p. 153. [11] Barnett, “Toward a Theory of Legal Naturalism,” p. 97. [12] Hayek, The Constitution of Liberty, pp. 236–237. [13] Tannehills, The Market for Liberty, p. 119. [14] Benson, The Enterprise of Law, pp. 12–13. [15] Fromm, The Sane Society, p. 95. [16] Fromm, The Sane Society, pp. 95–96. [17] Rembar, The Law of the Land, p. 43. [18] Fuller, The Morality of Law, p. 128. |
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