Don’t legislate me

Growing up with five brothers, my parents had to be particularly careful that they were seen to be fair and just if all out war was not to ensue over the most trivial matters. One technique that we often used was that whoever cut the cake was the last person to be able to choose which piece of the cake they would actually receive. This ensured that the “power” to cut the cake was seen to be a responsibility rather than a privilege and that whomever this responsibility fell upon would do their utmost to make sure that the pieces of cake were all the same size. Clearly the results would have been different if the rules had been reversed and if he who wielded the knife were also given first choice as to the piece of cake he wanted. If my parents had been so foolish as to allow such a thing then the inherently selfish 10 year old cutting the cake would almost certainly cut “by accident” one or two pieces that just happened to be slightly or even vastly larger than the others – ahem, ah well, I guess I’ll take that one!

It seems that 10 year old boys and girls aren’t that different to 50 year old boys and girls and recent examples of cake cutting in the world’s economies give us plenty of examples of special interest groups that attempt to cut a disproportionately large piece of the cake that is government funds for themselves. And even in virtually wrecked economies such as Zimbabwe you can be sure that if anyone is to go starving, government employees are always to be last on the list. When governments have the right both to cut the cake and decided the allocation of the pieces the results are as inevitable as when we hand the knife to a 10 year old boy with the same conditions.

The moral is quite simple. If we are to give someone power (for example the power to cut cake) then we should, if at all possible, remove any possible incentives for them to be able to use that power to their own advantage or in their own special interests.

Ostensibly, at least, legal systems the world over strive towards this ideal by way of the separation of powers. Traditionally this is achieved by splitting government’s primary functions into three broad categories: judiciary, administrative, and executive. The judiciary should take care of law making, administrative should take care of collecting taxes and allocating funds to uphold such laws and executive should take care of enforcing the laws (basically police and military). In theory, this separation of powers sounds fine and indeed Bruno Leoni points out (in Freedom and the Law) that when such a separation of powers was most pronounced, both in Ancient Rome and during the height of the British Empire, it was concurrent with a political system that emphasised private property and the sanctity of contract, which saw these empires rise to glory and to bring about some of the greatest advancements in human welfare and liberty that the world has ever known. In Ancient Rome, the separate branch of the Judiciary that emerged to adjudicate disputes in private affairs was the unwritten law of Jus Civilis, whilst Common Law served this function in the British Empire.

Common Law

The Common Law, which forms the basis of the legal systems of practically all English speaking countries today, emerged from medieval England during the midst of a series of political class struggles that gradually saw power wrestled, over the course of centuries, from Kings to land owners (Lords) and from landlords to common men and women, who in turn transformed from slaves and serfs to Yeomen (free men) with the right to rent and eventually purchase land. Under Common Law, cases would be brought by plaintiffs before judges who ideally, and indeed in most cases, had little interest in either the plaintiff or the defendant winning the case. The judge was thus impartial since, although he had been given the knife, he would not be eating any of the cake. Both the plaintiff and the defendant would typically try to find examples of previous cases that were similar enough to their own dispute that the logic and conclusions of those previous cases might be applied to their own disagreement. Where this was not possible, it was typically the role of the judge to try to ascertain the intention of the two parties concerned (and thus the nature of the contract that they had either implicitly or explicitly formed) and bring about a just outcome that was both consistent with established legal principles and that met common sense expectations as to what was reasonable and what was not. The reasoning of the judge could then be used to set a precedent for how people might solve similar future cases and thus, in this way, the laws that governed people under the English Common Law system were predominantly made by impartial judges, both knowledgeable of legal principles and highly trained in their application.

Indeed, since judges could not  make up laws willy nilly about any old gripe that they personally might have, one might even differentiate the Common Law system from our current legal system as being one in which laws were “discovered” rather that “made”. A judge who was not happy with the current price of wheat could not write out a law subsidising wheat production to bring prices more in line with his own personal preferences but would have to, if he felt he had sufficient grounds to do so, bring a case against wheat producers or someone else before the courts like everyone else and the decision in that case would obviously be made not by the judge acting as the plaintiff but by another (presumably) impartial judge who would seek to discover if the plaintiff had good reason to complain according to existing traditions and customs – the law of the land

Of course, judge made law was not perfect. Judges could perhaps take bribes or submit to other forms of pressure but at least, in principle, such a perversion of justice was illegal and those involved (including judges who accepted bribes) could be arrested and charged under criminal law by the executive branch of government.

Further, judges might reach a conclusion that either the plaintiff of the defendant disagreed with and indeed perhaps with good reason. In these cases the decision might be appealed and the matter taken to be reviewed in a “higher court”, where more highly skilled and highly trained (and perhaps most importantly different) judges could, if they saw good reason, overturn decisions of the lower courts that they found to be unreasonable or inconsistent.

A more serious objection to the Common Law system is that it would sometimes start walking down the slippery slope of precedent and end up at a destination where no body (plaintiff, defendant or even judge) wanted to be. However the Common Law system was not incapable of dealing with this scenario. As Wikipedia describes it:

The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects. In contrast, the legislative process is very difficult to get started, and legislatures tend to delay acting until a situation is totally intolerable. For these reasons, legislative changes tend to be large, jarring and disruptive (either positively or negatively).


As such, none of the above “problems” with the Common Law system nor any problems with the Common Law system and a true separation of powers, for that matter, were insurmountable and indeed it was not any fault of the Common Law system that led to the power of the Judiciary eventually being usurped. Rather, what began to gnaw at the power of the Judiciary and the fundamental strength of the Common Law system was the ability of Monarchs to pass legislation (particularly when they were short of funds). Of course, as a direct descendant from God and as the technical ruler of the state, the Monarch could always pass laws (legislation), in theory. In practice, their ability to do so depended largely on whether they had the support of various clergymen and barons etc. that had rather more direct control over the subjects to whom the laws (typically calls for taxation) were supposed to apply.

I believe the first dose of poison was administered to the Common Law system entirely by accident in 1272 with the emergence of parliament as an institution:

During the reign of Edward I, which began in 1272, the role of Parliament in the government of the English kingdom increased due to Edward’s determination to unite England, Wales and Scotland under his rule by force. He was also keen to unite his subjects in order to restore his authority and not face rebellion as was his father’s fate. Edward therefore encouraged all sectors of society to submit petitions to parliament detailing their grievances in order for them to be sorted out. This seemingly gave all of Edward’s subjects a potential role in government and this helped Edward assert his authority.

Of course, in 1272 the English parliament had nothing like the far reaching powers it has today and was assembled primarily for the purpose of raising taxes. However 1272 is essentially when the tables began to turn and those choosing slices of the cake began to take hold of the knife that was used for it’s cutting – this is when the seeds were sown for what would later become “special interest groups” lobbying government and laws that were not discovered by impartial judges but were instead imposed by legislators with their own agendas – thus 1272 could be seen as paving the way for the modern social welfare state.

Slowly, over the centuries, parliament came to have more and more power. They began to assemble independently (without being “summoned” by the Monarch) and even began to challenge the powers and the agents of the Monarch. More importantly, parliament came to regularly propose “bills” which could, if passed by majority, be submitted to the Monarch for either royal assent or veto. However over time the Monarch became just a figurehead, no longer capable of passing legislation without parliament and eventually no longer even required for parliament to pass whatever legislation it saw fit. The right of the English monarch to veto legislation proposed by parliament has not been executed since 1707.

It is important to distinguish the two roles that parliament played in England. On the one hand they were required to authorise and legitimise taxation imposed by the monarch. Fundamentally it is this role that gave them their power, for each time that the Monarch ran out of money (typically in the middle of a costly war) he or she would have to come groveling back to parliament to ask for their help in raising new taxes. This role of parliament is entirely justified and their ability to refuse to allow (or at least refuse to assist) the monarch to raise taxes that they considered unjustifiable can only be applauded. However parliament also played a second role that came to occupy more and more of their time – namely, that of proposing bills and passing legislation. It is this second role of parliament with which I take issue. Whilst perhaps important legislation may have resulted from parliament’s role as law makers, fundamentally their ability to pass legislation poses some serious problems.

Firstly, unlike the Common Law that judges make pertaining to cases that those judges likely have no vested interest in whatsoever, the law that legislators make almost invariably comes about precisely because the legislators concerned have a vested interest in the realisation of that law. When Barrack Obama made pre-election promises to “Provide $50 billion to Jumpstart the Economy and Prevent 1 Million Americans from Losing Their Jobs” what he was actually saying was that his administration (yes that would be the administrative branch of government) would pass laws to confiscate wealth from various groups of people and give it to those who vote for him. It can hardly be argued that the lawmakers (in this case the Obama administration) do not stand to gain from this kind of cake cutting and so the wisdom of having handed them the knife most certainly has to be called into question.

Secondly, the separation of powers is all but dead and buried. For, it is now the administrative branch of government (under the guise of “The Legislature”) that is the origin of most law. No longer are the functions of law making and taxation independent and no longer can one serve as a check on the powers of the other. Virtually the only protection afforded to the citizenry from the arbitrary whims of government administrators is that of the judiciary to overturn laws on the basis of the country’s constitution (for those countries fortunate enough to have one – and even then such constitutions are not immune to arbitrary changes).

Finally, where Common Law was a system of law built upon fundamental and sound legal principles effected by highly skilled lawyers and judges, modern nations see their law making performed by people who need not understand or even have any inclination to attempt to understand legal principles – and indeed why would they need to? It is difficult to imagine upon what legal principles the arbitrary formation of legislation might be founded. Legislators can write laws willy nilly. Where judge made law was the process of discovering the intentions and expectations of people (and thus the nature of the contracts that they form with one another as a necessity of day to day life), legislation is the unilateral imposition of contracts which may not suit anyone but the legislator. Legislation is a system in which each politician can play mini-Hitler and force, at gunpoint, his views and the desires of whichever special interest groups contributed the most handsomely to his campaign upon their unwitting victims (i.e. the public).

Root causes

Readers of Strike the Root will be familiar with the words of Henry D. Thoreau:

“There  are a thousand hacking at the branches of evil to the one who is striking at the root.”

Mises, Hayek and Rothbard, were among these “ones” who were striking at the root. Each of these great Austrian economists eventually came to the conclusion that the weaknesses in our modern banking systems cannot be solved merely by a return to the gold standard. This has already been tried. As long as governments control money they will find ways to pervert it – be it gold or paper. The only true solution to our monetary woes is to take the monopoly on the creation of legal tender out of the self interested hands of government and allow the impartial invisible hand of the free market to once again provide stable money. Only under these conditions could any durable return to the gold standard possibly succeed – only if it were left to a free market.

Similarly, however, in light of the words of Leoni, Dicey and even Rome’s Cato, we must realize that even the government monopoly in money is but a symptom of the root cause… for it essentially stems from the power of governments to legislate. Without the ability to legislate, the establishment and maintenance of central banks in the special interests of banking cartels and governments that are incapable of balancing their budgets would have been all but impossible. Such incursions into the daily lives of citizens as audiovisual taxes and government broadcasting organizations, rules about the “appropriate subjects and material” that should form the syllabus in the schools that your children go to and even decisions as to what forms of transport it is appropriate for you to take or where you should be allowed to start a business, or what type, size and of  what design the roof of it’s building should be (zoning rules) could never have become so regular and banal as they have become today. None of these incursions into the realm of our personal lives will seem strange to anyone in the western world today – and yet but a few centuries ago such powers would have been unthinkable even to Machiavelli himself.

Leoni perhaps puts this best:

“Even those economists who have most brilliantly defended the free market against the interference of the authorities have usually neglected the parallel consideration that no free market is really compatible with a law-making process centralized by the authorities. This leads some of these economists to accept an idea of the certainty of the law, that is, of precisely worded rules such as those of written law, which is compatible neither with that of a free market nor, in the last analysis, with that of freedom understood as the absence of constraint exercised by other people, including the authorities, over the private life and business of each individual.”

Bruno Leoni, Freedom and the Law, expanded 3rd edition, foreword by Arthur Kemp (Indianapolis: Liberty Fund 1991). Chapter: 4: Freedom and the Certainty of the Law

We are living in an age where basic freedoms that were previously maintained under British Common Law and the foundations of all those legal systems of the English speaking world are being swiftly usurped by legislation. Rules that were formed without coercion between free and consenting adults and which were discovered by impartial judges over the course of many centuries are being erased overnight by the will of central controllers who believe that their knowledge surpasses the experience of all of these judges combined and that they know better than you to what charitable purposes your “surplus” revenues should be put (such as bombing Iraq), what your children should learn at school and what they should watch on TV. All of these things you shall not decide freely. Instead they will be imposed upon you in accordance with the dictates of dein Führer and the Führer’s power to make you do these things stems ultimately from one source of evil – the desire to control other men, which is principally effected today by way of Legislation.

2 thoughts on “Don’t legislate me

  1. Thank you for a helpful introduction to the theory of Common Law. While compelling in principle, I am left wondering how two practical perils are addressed:

    1. How are “highly skilled lawyers and judges” incentivized to participate in and maintain the system of Common Law? What mechanism ensures that the system is not corrupted by patronage or mediocrity?

    2. The judiciary of recent generations has introduced us to the concept of “judicial activism,” wherein judges eager to impose their philosophy on the polity do so without little regard to the restraint and deference they are supposed to show in their capacity as “judge.” We often see them doing so in spite of the expressed will of the majority (through referenda or through the legislature). It seems that, lacking our current government mechanisms for popular rule-making, the Common Law system would be vulnerable to even greater judicial activism. Do you agree? Is it clear that this is preferable to the existing system where (in principle) the judges restrain themselves to making judgements in accordance with the expressed will of the people?

  2. With reference to point number 1, I think history speaks for itself (in case you’re doubting that such a system is possible – it’s not only possible but it succeeded magnificently). Certainly there were substandard decisions made by individual judges. However where a decision was made that either plaintiff or defendant was not happy with there was always the possibility of appealing the decision and taking it to a higher court. The motivations for good performance on the part of lawyers is obvious (they require the patronage of future customers). Primarily I believe that the judges were motivated by peer review and the aspiration to advance their careers (which was not possible if their peers considered that they were not good judges).

    With regard to point number 2, judges are only allowed to make decisions on the cases that are brought before them. They cannot, if they decide they have a bone to pick with Mr XYZ or the ABC industry, wander off and start issuing commands to them.

    Certainly it may be the case that judges “happen” to be making decisions on cases in which their personal views influence their decision. However this must come about by accident. This is precisely the opposite situation to that which we find with legislation where the law makers are always (without exception) making laws relating to issues upon which they are biased… so there can be little doubt that where it is possible to avoid legislation this is preferable.

    Leoni covers your questions is much much much greater detail than my short introduction above though. My main goal was to try to get people interested in his work and I’d thoroughly recommend you read Freedom and the Law if the article sparked your interest.

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