Where Does Law Come From?

by Don Boudreaux on May 20, 2008

in Complexity & Emergence, Law

I’ve always liked this 1997 essay — "Where Does Law Come From?" — by Bruce Benson.  In it, Bruce explains why law is not synonymous with legislation.  Here’s his concluding paragraph:

The lesson here is that law and governance are natural institutions
that arise out of people’s interest in prospering through production,
the division of labor, and trade. They do not depend on a central
coercive authority for their genesis. States can arise when a powerful
group, bent on institutionalized extortion, co-opt and alter existing
customary law to serve its own particular interests.

A fuller treatment of this vitally important subject is in Bruce’s 1990 book The Enterprise of Law: Justice Without the State.

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Michael F. Martin May 20, 2008 at 9:58 am

I don't disagree much with this vision of law as an emergent phenomena. But a hidden premise in this theory is that law and the people who practice it are somehow separated. If they are not, then the state itself is also an emergent phenomena. If it seems not to be, then that is only by the slight of hand of whatever dictator happens to want us to think it was his doing.

And aren't the founders of the US of A a counterexample to his "powerful group, bent on extortion" theory?

Matt May 20, 2008 at 10:35 am

Forceful acquisition increases the transaction costs above the cost associated by using market price.

Slavery, then bribery, then contracts.

Gil May 20, 2008 at 11:31 am

Yeah right! A simple argument that implies Libertarians are the descendants of the merchant classes and Statists are the descendants of rulers and serfs? Likewise a government is a mafia group who strolled into a town of free merchants and enslaved everyone by saying "give us money and we won't beat you up"? Common law is really one of a simple code of cooperation – a group believe they can work together better than being alone so they agree to certain terms of conduct and if these terms get abused the group disbands and goes their way, no? And then there's the yawner of Libertarians 'people who do the wrong thing gets ostracised thereby allowing for punishment without doing anything. If so how could non-Libertarian societies ever emerge? The reality people don't automatically respect other poople and, worse yet, a violent group can get to be held in high esteem. Actually I haven't seen anything that really suggest 'law' and 'legislation' are really different except 'legislation' is more formalised. A central planning group could simply be a farm-owning family who lay down the rules for farm workers – hardly illibertarian. The farm owners can choose common law between fellow farm owners but farm workers would get a free market version of statutory law. Once again the primary argument falls back to the notion as to whether the Guvmint is the legitimate primary owner of all the land within the territory.

Sam Grove May 20, 2008 at 4:24 pm

Law comes from a recognition of human nature as expressed in the reality of mother nature.

Legislation often tends to disregard both.

Micha Ghertner May 20, 2008 at 10:12 pm

Once again the primary argument falls back to the notion as to whether the Guvmint is the legitimate primary owner of all the land within the territory.

And is it?

Gil May 21, 2008 at 2:24 am

Indeed. The same accusations against Guvmint are deemed acceptable in the private sphere.

Gil May 21, 2008 at 2:34 am

BTW: THE Micha Ghertner? What a coinkidink! With regards to courts, judges, juries, laws, etc., are artifacts of a government (minimal or maximal) as at the M.R. site. I still believe an Anarcho-Libertarian society would have abritration businesses, refusal of trade between individuals and businesses, maybe the odd clan warfare and private statutory laws for tenants on private land.

vidyohs May 22, 2008 at 7:49 pm

I don't see how any intelligent and educated person can disagree with Bruce Benson.

The fact that law is nothing more than agreements between men is obvious and Benson shows that through structured rational explanation. Law as man knows it does not exist in nature, it is man created and is only born through agreements. Even the root of all law, natural law, is still only an agreement between men as to what is basic and necessary for co-existence.

as law is an emergent phenomena, as you put it, then why or how do you have trouble with recognizing that government is also an emergent phenomena? Government, like law, does not exist in nature. It is a creation of man through agreements just as law is. Or, did I mistake what you said?

In paleo-history there certainly were never ameoba like blobs of government moving about the planet seeking life to subjugate.

But, how many varieties of government are there? How many have worked successfully in the sense that the people submitted, cooperated, and benefited from that government?

Of those thought of by the prompting in the last paragraph, how many in objective intellectual analysis actually acted as a rider on the backs of the people all to glorify one or two individuals, thus impoverishing the people. Oh they had the trappings of glory because of the confiscation of wealth by the extortionists to be spent on magnificent buildings and monuments, but at what cost to the people?

The Egyptians left a glorious 3 thousand year history but I have to wonder how glorious could that civilzation have been, what accomplishments they could have acheived, had the wealth been left in the hands of the people to use for practical matters of their own intent.

Bruce Benson nailed it in a very well written essay, pity so few will ever read it, even less understand it, and even less than that who will look at their present life and be motivated to take back control from the extortionists.

I am certainly not encouraged because of my own experiences in trying to engage or encourage people to think about law, government, and their relationship to both. There seems to be a mental block of fear that won't permit it. Fear of confrontation, fear of loss, fear of hardship, I don't know what specific fear fits what specific person, but I can sense the fear.

Good law deserves our respect and cooperation; bad law deserves instant rebellion and resistance.

BTW MFM, the government of our founding fathers was a pretty damn good one and it was less extortionist than any ever seen. Pity it didn't last.

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