The Future of Legislation or, What is Customary Law?

I have been reading  John Hasnas recently, which has been beneficial for a number of reasons, though it has been slightly toxic to my mental health. His telling of the history of law has made me rethink much of my conception of law. Mind you, I am not a lawyer, so I do not profess an intimate knowledge of legal scholarship, but his distinction between kinds of laws (customary law and judge made law) has pushed me down a number of interesting avenues of thought, and shored up something thinking, which I want to lay out here.

To summarize,

The Anglo-American legal system is often referred to as a common law legal system. This is unfortunate, given the anachronistic contemporary understanding of the term “common law.” Currently, common law is associated with “judgemade” law. For most of the formative period of the common law, however, judges did not make the law, but merely presided over proceedings where disputes were resolved according to the accepted principles of customary law. Hence, describing the English common law as judge-made law is akin to describing the market as something created by economists. English common law is, in fact, case-generated law; that is, law that spontaneously evolves from the settlement of actual disputes. Almost all of the law that provides the infrastructure of our contemporary society was created in this way.

The transition between the two comes at the tail end of the 15th centuries and continues well into the 18th century with the classical liberal movement, which, as many have rightly intimated, was a project to govern and to legitimate this governance more than any other. I call this the problem of governing—on what basis can we legitimate government. For the classical liberals, it was accomplished by institutionalizing a whole range of relations through law that had largely been constrained by custom up until that point. Of course, this process was tied up with nationalism and the concept of the public and the nation, but a full length treatise of those subjects will come later. Around this time, we also see the switch from an agrarian to an industrial base, resulting in changes in social relations. One of the most important changes is elucidated by Dierdre McCloskey in her theory of industrial change. What we see is actually a loosening of acceptable occupations—the entrepreneur/individual gains legitimacy. Combined, the late 18th and early 19th century saw the creation of legitimacy for both modern institutions and the individual codified through law. It became tantamount to the word of God, mainly because, and we are apt to forget this, law was The Word instanced in human society.

However, the arguments for legitimation of law are not the same as the logic that created it. Hasnas further explains,

When I teach Torts, I ask the students to account for these rules. Being products of the legislative age, they inevitably launch into some theory of justice or moral desert or human rights, which invariably fails to account for the contours of the law. After all, attempting to batter someone is morally blameworthy whether or not theintended victim is aware of it, and one hardly has the right not to be offended.

The students fail because they think of the law as created by conscious human agency to serve an intended end. Thus, they miss the simpler evolutionary explanation. In earlier centuries, one of the most urgent  social needs was to reduce the level of violence in society. This meant discouraging people from taking the kind of actions that were likely to provoke an immediate violent response. Quite naturally, then, when disputes arising out of violent clashes were settled, the resolutions tended to penalise those who had taken such actions. But what type of actions are these? Direct physical attacks on one’s person are obviously included. But affronts to one’s dignity or other attacks on one’s honor are equally if not more likely to provoke violence. Hence, the law of battery evolved to forbid not merely harmful contacts, but offensive ones as well. Furthermore, an attack that failed was just as likely to provoke violence as one that succeeded, and thus gave rise to liability. But if the intended victim was not aware of the attack, it could not provoke a  violent response, and if the threat was not immediate, the threatened party had time to escape, enlist the aid of others, or otherwise respond in a nonviolent manner. Hence, the law of assault evolved to forbid only threats of immediate battery of which the target was aware.

We are a product of the legislative age, yet those involved in policy have unfortunately taken the endeavor out of its historical context. Classical liberals are still largely worried about the legitimation of government, this is the question of governing, as I suggested earlier. For those of my particular brand of cyber-libertarianism, I think we are still asking these basic questions, but that is not to say that the rest of the discourse on policy is. The rest of the community has moved past the problem of government, and in many ways, it is an understandable leap. This country was built on codified law, like the Constitution, but the Constitution’s original purpose was to make into statue what was already revealed through “natural law” and custom. If the Constitution or the Enlightenment is the starting point, then there is no reason to question the basis of law. Instead of being reflective, as it orginally was with custom and natural law, it becomes proscriptive as it is now. Thus, those who are thoughtful are forever forced to push back the tide of legislation because people already assume away the legitimation of law/statues.

And here is the problem highlighted by postmodernism: these institutions are crumbling. Governments are already having a problem keeping up with changes on the Internet, and as Sonia Arrison notes, we are soon to see huge changes in medicine/ethics/family life too. Rule by statute is a relatively new method of social constraint, and the system is facing strong headwinds. We could see a near future without this kind of process, as we revert to a more customary law setting like before. I am still thinking about this, so I am willing to change my mind, but I think we should not put it out of the realm of possibility.

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