Law Prior to Government

Narking / Foter / CC BY

This is part 1 of a multi-part series presenting a praxeological theory of the origin and character of law.

One objection to taking a frankly Epicurean approach to moral questions is that society will disintegrate if everybody starts thinking only about himself and his own highest good. In this view, the widespread conviction that public virtue entails a certain amount of self-sacrifice is an essential component of general morality because, without this conviction, society itself would disintegrate into rampant thievery, feuds and general mayhem. In answer to this objection, I will investigate the origins of law – which obviously plays an important role in the integration of social order – in order to show that simple self-regard is not antagonistic to social order.

Law touches every aspect of human behavior. It can be concerned with highly technical matters (for example, in patent disputes) or very elemental, visceral issues (such as, custody of the remains of a victim of a violent crime). It can become mired in questions of metaphysics, science and language. Law is potentially concerned with any aspect of human action and knowledge.

Not only is law unboundedly complex, the discussion of law is plagued by selfish interests. Law is like economics in the sense that Hazlitt says of it:

Economics is haunted by more fallacies than any other study known to man. This is no accident. The inherent difficulties of the subject would be great enough in any case, but they are multiplied a thousandfold by a factor that is insignificant in, say, physics, mathematics or medicine-the special pleading of selfish interests. While every group has certain economic interests identical with those of all groups, every group has also, as we shall see, interests antagonistic to those of all other groups. While certain public policies would in the long run benefit everybody, other policies would benefit one group only at the expense of all other groups. The group that would benefit by such policies, having such a direct interest in them, will argue for them plausibly and persistently. It will hire the best buyable minds to devote their whole time to presenting its case. And it will finally either convince the general public that its case is sound, or so befuddle it that clear thinking on the subject becomes next to impossible.

Henry Hazlitt – Economics in One Lesson

The law is even worse, in this regard. Not only does it touch an even broader swath of human behavior (all of economics and everything else), the incentives facing special interests to manipulate the law have even greater and more immediate benefits than the manipulation of economic policies whose effects may not be felt for some time. Consider the large awards from civil lawsuits for ridiculous non-torts that make the news headlines from time to time, for example.

Defining law is complicated by the superficially abundant varieties of legal systems throughout the world. Law looks quite different in different cultures. The Afghans have their Pashtunwali, the Somalis have their Xeer. The English had their famed common law which still survives in many different forms. The Vatican has its Code of Canon Law. By far, the predominant form of law in the modern world is national, statutory law. It is so predominant, in fact, that most people today identify the word “law” with this system. In this and subsequent articles, I will defend the following definition: Law is a body of terms of settlement of disputes that usually succeed over time in preventing further open conflict which has been discovered through a process of trial and error.

There was a time before law. If we go far enough back in our evolutionary ancestry, we reach a point where our ancestors were not yet verbal. Since the ability to speak and engage in complex, rational argument is a precondition for law, these ancestors could not have had law. At some point, our ancestors acquired the ability to speak. At some later point, law emerged.

Of course, even before our ancestors could speak, they could get into disputes. Disputes occur between other animals frequently. Without the ability to speak, there are fewer ways in which to resolve disputes. Usually, dispute resolution between animals involves intimidating displays of force, threats, and violent or even deadly conflict. Disputes are costly and risky so, even in the non-verbal animal kingdom, there are dispute-avoidance mechanisms. Birds mark their territory with sticks, dogs with urine, and so on. The behavior of establishing publicly visible borders is important because, as long as others see and abide by those borders, disputes can be avoided.

When a dispute arose between our verbal ancestors who had not yet developed law, they had the option of talking about the dispute. If, after talking (perhaps shouting), they did not engage in physical violence, they had resolved their dispute verbally. People who could resolve their disputes verbally would incur less costs and risks than those who could not and, consequently, would enjoy an advantage in survival and reproduction. However, we know from experience that it is very difficult for two parties to resolve any serious dispute unaided since each party to a dispute tends to distort the facts and engage in special pleading in his own favor. One solution to this problem is to ask a disinterested third-party to hear the dispute and offer an opinion. People who were willing to bring their disputes to a third-party were more likely to resolve their disputes without the cost and risk of violent conflict and enjoyed an advantage in survival and reproduction over those who did not.

By the time of the earliest written history, law had already emerged – sometime between the first verbal arguments and the dawn of human history. Governments, too, had already emerged by the dawn of human history. Because most people identify “law” with national, statutory law, there is a tendency to presume that law emerged alongside or even after government emerged. But we can be confident that law emerged before government did because not all societies had or have government but all societies have law[1].

Hence, law is temporally antecedent to government. This is an important point because it means that it is possible to have law without government, a point which, it seems, most people today do not believe to be true. More importantly, if law is antecedent to government, then when governments emerged on the scene, they emerged in a pre-existing legal context. Today, we tend to identify dispute-resolution and the creation of law with government courts and legislation.

Something important happened between the time when law first emerged and the time of the advent of government. Prior to the emergence of government, disputes were resolved between disputants, possibly with the assistance of a third-party. Family relations and tribal or clan customs likely played a dominant role in the nature of law at the time. Law consisted of a body of norms which had emerged from use as effective rules for the final settlement of disputes without further conflict. The particular features or attributes of specific law systems are not as important as the general character of law – emergent and voluntary. Law was the alternative to violent conflict so participation in law was not compulsory. It was simply an alternative to outright violent confrontation.

After the emergence of government, the character of law changed. Law not only emerged through the voluntary settlement of disputes, it was also dictated by governments. Participation in law was either required or prohibited in many instances. Prosecution eventually became a subsidized profession. I will argue (in a follow-on post) that dictates fail to meet the criterion of being law since they do not emerge from the resolution of disputes. The difference applies to whether one should follow a law out of conscience or merely prudence. Decent people do not murder one another or wantonly pillage each other’s houses not only because it is illegal to do so but because it is simply immoral.

When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence, and it would be difficult for a person to choose between them.

Frederic Bastiat – The Law

Continued in Part 2.

Clayton –

1 – Law as regards rights, responsibilities and group-membership is listed among the culturally universal traits of human beings in Human Universals by Donald Brown, see here for a bulleted-list