The Best Form of Law

One form of law builds and fortifies a dominance hierarchy. The other is based on the resolution of local frictions among free people. Which form do you think the powerful love?

The best form of law in existence is still in use, but has been subordinated. In the English-speaking world, the Common Law has endured for over a thousand years. It’s not about lawmakers building utopias through deliberations followed by threats, guns, and jails. Instead, it’s about settling disputes and enforcing agreements.

Legal scholar and computer scientist Nick Szabo has written extensively about the ongoing war between Statute Law and Common Law. In particular, he reminds us that the Romans built roads to manage their empire in all directions, but in doing so, the empire paved over more flexible and adaptive forms of law.

The Anglo-Norman legal idea of jurisdiction as property and peer-to-peer government clashed with ideas derived from the Roman Empire, via Justinian’s legal code and its elaboration in European universities, of sovereignty and totalitarian rule via a master-servant or delegation hierarchy.

Did you catch that?

Roman-style statutes grow out of dominance hierarchies. Just because they pander for your votes today doesn’t make the statutory form less questionable. Szabo continues,

By the 20th century, the Roman idea of hierarchical jurisdiction had won mainly, especially in political science, wherein government is usually defined in terms such as “sovereign” and “a monopoly of force.”

One can’t help but think about how far back the worship of power by High Minds extends, but also how far into our lives its tentacles extend today. Totalitarianism in the nineteenth and twentieth centuries was “inspired and enabled by the Roman-derived procedural law,” according to Szabo.

The accompanying political structures—encompassing Napoleon, the Csars, Kaisers, Communist despots, Fascists, National Socialists, not to mention the vast bureaucracies of so-called liberal democracies—should prompt us to reconsider our commitment to Justinian governance. Szabo claims the master-servant hierarchy is better suited to military organization.

Without putting words in his mouth, Szabo suggests that the very form of law we seem to prefer has done the most damage to freedom and flourishing. Statute law almost always compromises freedom and the rule of law, notwithstanding constitutions.

Yes, that Nick Szabo, who is one of Bitcoin’s progenitors.

The alternative, we’ve said, is the Common Law.

This imperfect but elegant form minimizes friction among people. It uses case law to create a more highly localized, relevant, and adaptive body of law in the context of human interactions. It is not, like most statutes, contrived in the vapors of the rationalist imagination. Frictions are ultimately disputes based on alleged injuries or violations of another’s person or property. Thus, laws that emerge from settling disputes about injury help establish precedents within a body of customary law.

As legal scholar John Hasnas explains,

[T]o avoid running headlong into Hume’s is-ought problem — one must show that spontaneous orders advance a legitimate moral value more effectively than do constructed orders. They do. That value is peaceful cooperation.

Spontaneous order can be contrasted with planned order in that the former arises through self-organization and the protocols that facilitate it. Customary or Common Law comes out of the frictions that invariably arise as people self-organize.

Planned orders almost always require a design for group behavior, predetermined by an individual or a small group of individuals. Hasnas points out that planned orders usually require violations of people’s unenumerated rights, mainly as peaceful cooperation rarely flows from Statute Law, that detritus of Rome.

Note that a robust Common Law is better at protecting the environment than Statute Law. It’s so much easier for a few legislators to be captured and their statutes frozen in amber by special interests. For example, a polluter might meet some statutory minimum and still pollute. With the Common Law, all one has to do is prove nuisance or injury based on a preponderance of the evidence determined on a case-by-case basis, rather than by some blanket policy.

The same can be said for regulation. Certain kinds of regulation can emerge from common law legal precedents, while others can arise from the need to guard against liability. Such ‘bottom-up’ regulation is highly relevant to the circumstances of time and place. Bottom-up regulation provides people with the necessary limits, minimizing corruption and intervention.

Although the U.S. Constitution is a set of statutes, the Common Law is arguably the most fundamental form of American law. One of the most pragmatic things we can do is restore it fully.