Tom W. Bell The Origins and Nature of Law

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Tom W. BellThe Origins and Nature of Law
Introduction I. Legal Models II. Legal
Threats III. Legal Solutions Conclusion

• IHS Liberty Society Seminar, Bryn Mawr, July 9,
  2007

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I. What is The Law?
Introduction I. The Law? II. text III.
text Conclusion

• Worksheet question What laws most directly
  affect your day-to-day behavior?

Tom W. Bell, The Origins and Nature of Law, slide
2, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007
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I. What is The Law?
Introduction I. The Law? II. text III.
text Conclusion

• 2. The law as a service industry.
• 3. Lon L. Fuller "Law is the enterprise of
  subjecting human conduct to the governance of
  rules."1
• 4. In defending his definition of "law," Fuller
  observed that "A possible objection . . . is that
  it permits the existence of more than one legal
  system governing the same population. The answer
  is, of course, is that such multiple systems do
  exist and have in history been more common than
  unitary systems."2
• A corn field versus . . . . the badlands or a
  rain forest? See, e.g., Washington, D.C.

Tom W. Bell, The Origins and Nature of Law, slide
3, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007
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I. What is The Law?
Introduction I. The Law? II. text III.
text Conclusion

• Some terminology.

• The doctrine of statism favors granting one
  administrative body sufficient power to credibly
  claim a monopoly on the initiation of coercion
  within a particular territory.
• Add Fullers definition, and you get statist
  law The enterprise of administering power so
  as to to credibly claim a monopoly on the
  initiation of coercion within a particular
  territory.
• Polycentric law The enterprise of persons
  subjecting themselves to the governance of
  mutually-chosen rules.
• It may be customary or privately produced.

Tom W. Bell, The Origins and Nature of Law, slide
4, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007
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II. The Origins of the Law
Introduction I. The Law? II. Laws
Origins III. text Conclusion

• Friedrich A. Hayek "Society can exist only
  if by a process of selection rules have evolved
  which lead individuals to behave in a manner
  which makes social life possible."3
• "At least in primitive human society, scarcely
  less than in animal societies, the structure of
  social life is determined by rules of conduct
  which manifest themselves only by being in fact
  observed."4
• A purely positivist account Rules arise as an
  unplanned order when individual agents, who have
  conflicting ends and who pose mutually credible
  threats, interact over time.

Tom W. Bell, The Origins and Nature of Law, slide
5, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007
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II. The Origins of the Law
Introduction I. The Law? II. Laws
Origins III. text Conclusion

• 4. After a wide review of the field, Bruce Benson
  concluded that customary legal systems tend to
  have six basic features

• a. a predominant concern for individual rights
  and private property
• b. laws enforced by victims backed by reciprocal
  agreements
• c. standard adjudicative procedures established
  to avoid violence
• d. offenses treated as torts punishable by
  economic restitution
• e. strong incentives for the guilty to yield to
  prescribed punishment due to the threat of social
  ostracism and
• f. legal change via an evolutionary process of
  developing customs and norms.

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6, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007
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II. The Origins of the Law
Introduction I. The Law? II. Laws
Origins III. text Conclusion

• 5. How did we get from customary law to statist
  law?5

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7, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007
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II. The Origins of the Law
Introduction I. The Law? II. Laws
Origins III. text Conclusion

• 5. How did we get from customary law to statist
  law?

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8, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007
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II. The Origins of the Law
Introduction I. The Law? II. Laws
Origins III. text Conclusion

• 5. How did we get from customary law to statist
  law?

Tom W. Bell, The Origins and Nature of Law, slide
9, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007
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II. The Origins of the Law
Introduction I. The Law? II. Laws
Origins III. text Conclusion

• States never entirely quashed competition among
  legal systems, however.

a. States compete to attract human and financial
capital. b. The law merchant--a set of
commercial rules regulating international
trade--has continued to survive in a realm safely
beyond the reach of any one state's
laws. c. Even within state boundaries--especially
in the U.S.--polycentric law has survived.
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10, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007
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III. The Law, Today
Introduction I. The Law? II. Laws
Origins III. The Law, Today Conclusion

• Our mixed system. As Fuller said, "If the law is
  considered as 'the enterprise of subjecting human
  conduct to the governance of rules,' Fuller's
  own definition then this enterprise is being
  conducted, not on two or three fronts, but on
  thousands. Engaged in this enterprise are those
  who draft and administer rules governing the
  internal affairs of clubs, churches, schools,
  labor unions, trade associations, agricultural
  fairs, and a hundred and one other forms of human
  association. . . there are in this country alone
  systems of law numbering in the hundreds of
  thousands. "6

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11, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007
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III. The Law, Today
Introduction I. The Law? II. Laws
Origins III. The Law, Today Conclusion

• 2. Common law v. statutory law.

• a. Courts find the common law legislatures make
  statutory law.
• b. Common law arises as a spontaneous order, out
  of the resolution of various individual disputes.
• Legislatures write statutory law and impose it,
  top-down, on all citizens.
• Public choice pressures mean statutory law
  threatens to swallow common law.

Tom W. Bell, The Origins and Nature of Law, slide
12, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007
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III. The Law, Today
Introduction I. The Law? II. Laws
Origins III. The Law, Today Conclusion

• The rule of law v. the law of rulers. As Hayek
  said,
• "Nothing distinguishes more clearly conditions
  in a free country from those in a country under
  arbitrary government than the observance in the
  former of the great principles known as the Rule
  of Law. Stripped of all its technicalities, this
  means that government in all its actions is bound
  by rules fixed and announced beforehand--rules
  which make it possible to foresee with fair
  certainty how the authority will use its coercive
  powers in given circumstances and to plan one's
  individual affairs on the basis of this
  knowledge.7

Tom W. Bell, The Origins and Nature of Law, slide
13, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007
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Conclusion
Introduction I. The Law? II. Laws
Origins III. The Law, Today Conclusion

• What is "the Law"? The enterprise of subjecting
  human behavior to the governance of rules--a
  service industry.
• The law arose prior to the State and was
  captured by it.
• Today

• We live in a mixed regime of statist and
  polycentric law.
• Statist law itself encompasses both common law
  and statutory law.
• We consumers of legal services value not only
  substantively good laws, but also, and perhaps
  more importantly, the rule of law.

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14, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007
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Addendum Monster
Introduction I. The Law? II. Laws
Origins III. The Law, Today Conclusion Addendum
Monster

• We watered the desert.
• It grew like a weed,
• And sheltered our people,
• From violence and need.
• It drove off the monsters.
• It drove off the monsters.
• We wanted it well armed.
• They armed it with claws.
• We wanted the top hand.
• They wrote their own laws.
• We raised a cathedral.
• They made it a cage.
• We wrote up a compact.
• They cut up the page.

They made it a monster. They made it a monster.
They made it a monster. They made it a monster.
Now, they claim to rule us, For our own
good. But they've spoken for us. And
misunderstood. With cunning persistence, With
fire and lead, They come for our freedoms. Let's
give 'em hell, instead. We must tame the
monster. We must tame the monster. We must tame
the monster. We must tame the monster.
Tom W. Bell, The Origins and Nature of Law, slide
15, IHS Liberty Society Seminar, Bryn Mawr, PA,
July 9, 2007