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To Alter Or To AbolishChapter 25Law and Order According to Whom?© Copyright Darrell Anderson. A government of laws, and not of men. “Novanglus,” pseudonym of John Adams, written in the Boston Gazette, 1774; later incorporated into the Massachusetts Constitution in 1780 There are two types of trespasses: (1) intentional and (2) unintentional. Intentional trespasses are referred to as crimes. Crimes often are seen as not only violating the boundaries of an individual but also as upsetting the social order because intentional trespassers willingly disregard knowable boundaries and heighten the fear of many people of further potential trespass and conflict. Unintentional trespass is seen only as unforeseen accidents and negligence. Intentional trespasses, or crimes, includes an element of intent or willfulness to aggress and harm — mens rea, whereas accidents and negligence do not. Under customary law, if no trespass occurs or there is little fear of disrupting social order, then often a human act probably is considered acceptable and customary behavior. In a tort-centered social model, public law and customary law are equivalent. Customary law provides no distinction between public and private (contractual) law. Trespass is trespass. All individuals are held accountable for their actions, regardless of status or class. Whether intentional or unintentional, all trespasses violate knowable boundaries and upset social order. Throughout much of human history, many groups of people provided no distinction between public and private law. One reason is through much of history humans tended to be communal and tribal in nature, and survival of the individual depended greatly upon survival of the group. Customary law often provides no distinction between private and public law because disputes between individuals simply fall under the straightforward umbrella of trespass. Because customary law is easily knowable by all participants, all law is considered public and all individuals are held accountable for their private actions. Under customary law there is no such thing as a “public act.” Customary law tends to be horizontal and flows from the bottom up — a natural outgrowth of everyday human interaction. Customary law arises from shared worldviews and often is a natural outgrowth from the concept of property.[1] Customary law is arbitrary but grows into existence naturally, evolving and maturing through the daily interactions of people. Because customary law is a natural outgrowth of those interactions, customary law becomes natural law — that is, human-made law that exists naturally. Customary law is a process of government although the form or structure of that process is unknowable without specific inquiry. Customary law is derived from within a community of people through free association and voluntary exchange. Customary law is a result of people seeking to sustain energy flows through persuasion and cooperation, and production and exchange. Customary law tends to exhibit six fundamental characteristics:[2]
Under dictatorial law, however, various human actions are distinguished differently. Some acts are called torts and usually are considered “private” law. Other acts are called crimes or infractions and are considered “public” law. Dictatorial law further distinguishes crimes and infractions as offenses against “the king,” “the realm,” “the people,” or “the state.” Dictatorial law distinguishes torts as upsetting personal order and crimes as upsetting social order — under the guise that the two concepts are uniquely different. Whereas customary law is openly knowable by observing the actions of other people, dictatorial law is not easily knowable. Customary law often is seen as natural and derived from expected human action, dictatorial law is seen as artificial and derived from without. Dictatorial law is a result of people seeking to sustain energy flows using force and coercion, not persuasion and cooperation. Dictatorial law encourages adversarial raw acquisition. Customary law is widely accepted and supported throughout a community of people whereas dictatorial law tends to be resisted. Customary law promotes and protects boundaries because all trespasses are seen as torts, including intentional trespasses (crimes). Customary law is based upon the concept of knowable boundaries — both personal and communal, which depends upon free association, voluntary association, and explicit consent. Conversely, dictatorial laws come into existence by fiat — mere decree from those who believe they possess standing to control human actions. Totalitarians manipulate the idea of the rule of law to serve their own agendas, whereas proponents of customary law seek solutions providing long-term reciprocating benefits for all people. Dictatorial law is vertical and moves from the top down. Thus, even with acts where no trespass occurs, acts that might be considered acceptable behavior under customary law can be artificially declared as unacceptable behavior under dictatorial law. Those acts need not contain any element of trespass, but simply are acts prohibited by fiat. Dictatorial law tends to confuse the human sense of what is “right” or acceptable behavior because such law does not evolve through everyday human interaction. Customary law conveys a natural sense of what is acceptable because people act and conform in a like manner. Dictatorial law tends to be disruptive because previously accepted behaviors are suddenly forbidden. As long as a majority of people believes the forbidden act is actually an acceptable behavior, dictatorial law will be resisted. Tension and conflict increase between the powers-that-be and the general populace. If defiance continues from generation to generation, the dictatorial law becomes more resented and tensions and conflict increase. Unlike customary law that tends to be intuitive, dictatorial law often is counter-intuitive. Totalitarians often violate the principles of customary law — to create knowable boundaries of human action. By definition, customary law means every individual is at liberty to act and behave as does every other individual. Totalitarians declare that the acts of some individuals are acceptable but the acts of others can be regulated — “some people are more equal than others.”[3] Customary law declares that every individual possesses the right to act in a way that is customary to all people.[4] Totalitarians disrupt such knowable foundations. Because dictatorial law is derived from outside normal human interactions, such laws benefit or satisfy only a few privileged individuals rather than everybody. Such laws coercively redistribute and transfer property titles, especially to those individuals in control.[5] Dictatorial law creates tension when property boundaries are redefined at whim by those individuals in control. With dictatorial law, property rights are fictitiously assigned or reassigned to a reified “society” rather than remaining vested in individuals.[6] However, society is an abstract construct, a model describing a collection of individuals. Therefore, “society” never can possess rights — only individuals can possess rights. With dictatorial law the concept of self is left in doubt. Proponents of dictatorial law rarely are satisfied with mere equal treatment under their law. By fiat they often seek to create subjective equal opportunities to forcibly redistribute property titles,[7] and when that goal fails those people then attempt to subjectively force equal results in addition to equal opportunity.[8] Such an approach raises the questions of “with respect to what, and according to whom?” Every human possesses a unique definition of pursuing happiness, therefore equal opportunity and equal results are subjective ideas. Whereas supporters of customary law are concerned with the substance of human-made positive law, many positivists’ concerns are manifested in a belief of coercive social planning and reform.[9] Because of such beliefs, to override natural self-interests positivists presume an additional coerced positive effort is needed to provide such reforms. Whereas legal systems and standards evolve under customary law to encourage mutual survival, totalitarians manipulate legal systems to provide selective reforms and planning. Coercively overriding natural self-interests is to defy the fundamental concepts of self, property, rights, contracts, and consent. Conflict is the result. Because dictatorial law moves from the top down and is derived from without, such law tends to displace customary law, and therefore totalitarians use force and coercion in order to maintain that transition. Dictatorial law uses the threat of violence to prevent competition from customary law. Force and coercion arises because people tend to resist dictatorial law. Resistance grows because dictatorial laws tend to be capricious and subjective. Totalitarians attempt to benefit their own special agendas rather than mutually benefit all people. Dictatorial law attempts to coerce people into automatons rather than encourage thinking and promote free association and voluntary exchange. Dictatorial law is an effort to create an environment of regulation and subservience.[10] However, humans are not and cannot be made into pure logic machines.[11] Totalitarians are not necessarily concerned with justice or equality before their law, but with domination and control are more concerned in coercive redistribution of energy flows. Dictatorial law is sometimes called a “just us” system of law rather than a system of justice. Cynicism and contempt for legal proceedings abound.[12] Legal proceedings are no longer stable and knowable. Injustice grows simply because justice no longer exists. Promoters of dictatorial law understand that keeping people ignorant is necessary to create a sense of believability. Yet, humans are naturally curious and inquisitive. They routinely seek knowledge. The more people try to understand dictatorial law, however, the more confused they become because often there are no connections to the knowable world of customary law. The normal quest for knowledge exposes the fiat nature of dictatorial law and affirms the evolutionary nature of customary law. Thus, force and coercion are necessary to maintain this ignorance.[13] Customary law creates a society of contract through free association and voluntary exchange. Dictatorial law creates a society of status, privilege, and slavery. If dictatorial law is gradually allowed to replace customary law, then boundaries are ignored, property titles are usurped, and resources are forcibly transferred from one class of people to another. Resistance increases. As dictatorial law grows, various groups of people seek political favors in the hopes of creating laws that advance their agendas over those of other people. However, the decision-makers and enforcers of dictatorial law are restrained by the limits of their knowledge and resources as are all other individuals. As demands grow to provide more favors and privileges, those limitations force decision-makers to delegate more and more of their decision making. The problem of unintended consequences grows. When rule making is delegated, new rules are not only created by fiat but enforcement is randomly applied.[14] When the law-making process is by fiat, enforcement is by fiat. With vagueness in law and rule making, as well as in delegation, challenging fiat decisions is difficult; essentially nullifying any process of an impartial review and due process. As dictatorial law grows, so does its unpredictability. As more property is forcibly transferred and therefore the means of sustaining energy flows, the sense of reciprocity dwindles and the sense of mutual obligation withers. As this sense of obligation decreases, respect for the concept of law diminishes. Creating social and legal rules that defy nature and natural human action warps and frustrates humans, and denies meaningful fulfillment.[15] This coercive interference creates an unstable equilibrium in the social order rather than stable.[16] Therefore, rather than increase social order, dictatorial law contributes to increasing social disorder.[17] As dictatorial law increases and the sense of obligation decreases, incentive deteriorates to participate in promoting the boundaries created by normal human action. Resistance continues to increase. The enforcers of dictatorial law as well as political favor seekers then pursue a larger role for dictatorial law to overcome that loss of incentive and the increase in resistance. Thus, shaping and manipulating the social order becomes a regular exercise of dictatorial law.[18] Eventually, almost any and every human action becomes the subject of dictatorial law, and almost anything becomes fodder for becoming a “crime.” The definition of crime changes from intentional trespasses of knowable boundaries to merely any fiat prohibited act. Conflict increases. Not only are ordinary and expected human actions prohibited, not only is there an unnecessary distinction between private and public law, but lost in that transition is the victim of a bona fide trespass and the idea of restitution of property. Under dictatorial law, lost is the concept that personal order must be restored as well as social order and that the two concepts are forever intertwined. The loss of restitution and the growth of dictatorial law further agitates the tendency for social disorder and disrespect for the concept of law.[19] Eliminating the concept of “public” law and recognizing all trespasses as torts would do much to restore sanity to the current legal system.[20] Because all humans are creatures of limited knowledge, every individual is ignorant to one degree or another. Known or knowable boundaries are important to provide social order and to promote mutual survival. Therefore, laws must be simple, not complex. Laws must be knowable and be certain.[21] Laws must be universally equal and applicable to all people.[22] Legal system models fail because of several reasons. Any legal system suffering from one of the following defects is not only a bad system of guidance, but is no system at all.[23]
Because dictatorial law is founded upon special interests instead of reciprocating and mutually beneficial actions as with customary law, dictatorial law tends to suffer from all eight defects. The nature of dictatorial law confuses people in that many individuals often define such a process as positivism. That modern positivism is legislative in nature adds to the confusion. People should not be against positivism because customary law is positivist in nature too. The root problem is the nature of dictatorial law. Special laws and exemptions provide an environment of confusion that naturally existing ignorance finds difficult to overcome. The more specialized laws become, the more complex they appear to those who are expected to abide by them. The more complex the laws become, the more ignorant people tend to be. As ignorance and confusion intertwine to become a vicious proverbial snowball, people find social disorder increasing. Dictatorial law typically is little more than a means of diverting and controlling energy flows. Dictatorial law is another way people try to capture the labor of other people and to get something for nothing. Finis. Next: Chapter 26 — Elm Street Endnotes [1] Spencer, “The Great Political Superstition,” The Man Versus The State, p. 143. [2] Benson, The Enterprise of Law, p. 21. [3] Apologies to George Orwell — paraphrasing from Animal Farm. [4] Zane, The Story of Law, pp. 38–39. [5] Benson, The Enterprise of Law, pp. 11–15. [6] Livingston and Thompson, The Consent of the Governed, p. 9. [7] Hoppe, A Theory of Socialism and Capitalism, pp. 57–58. [8] Barnard, Draining the Swamp, pp. 62, 210. [9] Barnett, “Toward a Theory of Legal Naturalism,” p. 97. [10] Machan, Tibor R., “To Solve the Problem We Need Government Regulation,” Clichés of Politics, p. 56. [11] Zane, The Story of Law, p. 357. [12] Berman, Law and Revolution, p. 40. [13] Weinburg, The Social Analysis of Three Early 19th Century French Liberals, p. 51. [14] Hayek, The Constitution of Liberty, pp. 211–212. [15] Hall and Lindzey, Theories of Personality, p. 173, citing Eric Fromm, The Sane Society, 1955, Rinehart, New York. [16] Spencer, “The Proper Sphere of Government,” The Man Versus The State, pp. 257. [17] Benson, The Enterprise of Law, p. 45. [18] Benson, The Enterprise of Law, p. 83, citing Lon L. Fuller, The Principles of Social Order, (1981, Duke University Press), pp. 156–157. [19] Benson, The Enterprise of Law, p. 71. [20] Benson, The Enterprise of Law, p. 276. [21] Hayek, The Constitution of Liberty, p. 208. [22] Hayek, The Constitution of Liberty, p. 209. [23] Fuller, The Morality of Law, p. 39. The eight rules are from Fuller. |
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