Law Differs from Legislation

Von Raivo Pommer

Die dramatischen Auftragsbrüche deutscher Unternehmen bedrohen immer mehr Arbeitsplätze. Allein im Februar ist die Zahl der Arbeitslosen nach Berechnungen von Experten um rund 65 000 auf 3,55 Millionen gestiegen. Dies wäre der stärkste Februar- Anstieg seit dem Krisenjahr 2005. Allerdings liege die Zahl der Erwerbslosen noch immer leicht unter dem Niveau des Vorjahres

However the whole "left lane is the speeding lane" business has got me irked. Who said?

Colorado and Texas are two states I know of that have some kind of, "Keep Right Except To Pass" laws that apply to Interstate Highways. Colorado's is explicitly worded as noted above, although it's poorly enforced (much to my dismay). It's been a few years since I drove in Texas, but I believe their signs read: "Left Lane Is For Passing".

Although Colorado doesn't enforce the law as vigorously as speeding, it does help. My annual drive to Vegas would be an hour quicker if Utah and Nevada had similar laws.

Mezz,




Some people find this dangerous:

"I learned a long time ago to keep exactly at the speed limit and haven't had a ticket in 13+ years.

Posted by: Mezzanine | Feb 17, 2009 12:51:46 PM"

Two brown skinned brothers from south of the border very carefully drove north in California on the freeways, making sure to keep at the speed limit. The CHIPs observed the auto and wondered WTF was wrong with those guys, stopped them and found their 60 Kilos of Coke.

Conclusion, go with the flow.

I think we're talking about different things. In the context of the Hayekian distinction between nomos ("law") and thesis ("legislation"), Don's examples are perfect. The speed limit did not arise out of human interaction. In fact, the fact that many (the majority of?) drivers exceed the speed limit might indicate that, absent legislation, another, unwritten, higher speed limit might emerge.

Similarily, "first come, first served" was never codified into law, but was a product of human action. It is therefore law ("nomos"), but not legislation ("thesis").

Bottom line is: Hayek uses law and legislation in technical senses. And Don's remarks and examples should be evaluated within the framework of Hayek's thought.

_________________________________________

Damien's insightful post isn't getting enough play.

mjh nailed it. I wish there were more drivers like you.

However the whole "left lane is the speeding lane" business has got me irked. Who said?

I prefer (and exercise) two rules when I drive:

1) cruise in the right lane, pass in the left lane.

2) when passing, pass as quickly as you can so as not to draw a crowd of people behind you who wish to drive faster than you.

I have very few incidents of people getting mad at me when I practice these rules.

If two college students have consensual sex with each other, is that behavior unlawful in those states?

"However the whole "left lane is the speeding lane" business has got me irked. Who said?"

-Mezzanine

Oh, so that was you clogging traffic on the left side of the freeway this morning. Unbelievable!

BTW, regardless of what other drivers are doing, it's just less stressful to keep at the speed limit. That way you know a cop isn't going to bust you. However the whole "left lane is the speeding lane" business has got me irked. Who said?

Don't attempt to exceed, by five or ten miles an hour, the speed limit in Washington State. (Just a tip.)

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Posted by: OregonGuy | Feb 17, 2009 12:49:16 PM

I learned a long time ago to keep exactly at the speed limit and haven't had a ticket in 13+ years.

Don't attempt to exceed, by five or ten miles an hour, the speed limit in Washington State. (Just a tip.)

.

The speed limit example is particularly tricky, because Don's "lawful" limit is 5-10 miles per hour above the legislated limit, so legislators effectively set this "lawful" limit by legislation. Custom determines an increment above the legislated limit but not the effective limit itself. Don's "law" is not a speed limit per se but is a propensity of drivers to exceed the legislated speed. Violating the statutory law seems to be a law of nature.

I think we're talking about different things. In the context of the Hayekian distinction between nomos ("law") and thesis ("legislation"), Don's examples are perfect. The speed limit did not arise out of human interaction. In fact, the fact that many (the majority of?) drivers exceed the speed limit might indicate that, absent legislation, another, unwritten, higher speed limit might emerge.

Similarily, "first come, first served" was never codified into law, but was a product of human action. It is therefore law ("nomos"), but not legislation ("thesis").

Bottom line is: Hayek uses law and legislation in technical senses. And Don's remarks and examples should be evaluated within the framework of Hayek's thought.

If two college students have consensual sex with each other, is that behavior unlawful in those states?

If courts will enforce the statute, I must say "yes". People do violate laws routinely, and all laws (standards established and enforced by states), by their very nature, are enforced selectively. There simply aren't enough policeman to enforce laws otherwise, but the unenforced cases aren't always the most worrisome.

In Alabama, consensual sex between adults is generally legal, unless the sex is "deviate". "Deviate sexual intercourse", by statutory definition, involves "any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another." The crime is called "sodomy", but since no "sex" is "deviate" within marriage, "sodomy" exists only outside of marriage.

So conceiving a child without the legal protection of marriage is legal in Alabama, but cunnilingus without a license is a crime.

Since protecting a child's right to a cooperative, supportive relationship between two parents is the only good reason for marriage I recognize, Alabama laws seems incredibly absurd to me, but laws aren't required to make sense to me.

Do Alabama citizens routinely ignore these laws? Sure they do. I sure did. Can a law that people routinely ignore still be enforced? Sure it can.

In my way of thinking, "the law" is the will of armed men. That's all it is, and that's all it'll ever be. It's not "moral". It's not "fair". As Washington said, it's not "reasonable" or "eloquent". It's just the will of armed men imposed by force. The sooner we face this reality, the sooner we'll shape law accordingly.

I agree with John -- the general point is astute, but the wording bugs me. What you call "Law," most people call "Custom" and what you call "Legislation," most call "Law." Why redefine "Law" to mean something different than most people understand it to mean and expand "Legislation" to include things, like common law, that aren't legislated?

Legal scholars have been battling over the distinction between custom and law for centuries. Why do economists feel the need to change the terminology?

In a few states (I think that Massachusetts is one) legislation remains on the books making consensual sex between unmarried adults a criminal misdemeanor. If two college students have consensual sex with each other, is that behavior unlawful in those states?

Language is also an emergent phenomenon. There are no central authorities that determine the rules of the game.

Given that, would it be possible to recognize that the definition of "law" has come to take on the meaning of "legislation"? It seems to me that you wish to change people's uses of those terms. If so, this seems like an effort reminiscent of Quixote. Would it not be better to just recognize the emergent result?

Perhaps there's another way to encourage people to be more specific when they talk about what you call "law" and "legislation". But trying to get people to use language differently than they do is, I fear, a battle so hopelessly lost, that it isn't worth fighting.

$0.02.

... a matter of custom not law.

The word "custom" certainly seems more common in this context. I don't know many people, besides Don, who say that exceeding the speed limit by 5-10 miles per hour is "lawful".

This distinction between "law" and "legislation" was little use to me as a police officer recently wrote me a ticket for exceeding the posted speed by nine miles per hour.

And if I had argued Boudreaux's case with the officer, he'd probably have charged me with something else.

Tsk on me. Should read "After all no one can be charged........"

"the fact that makes it law is whether it can be adjudicated in a court, not whether the justice system chooses to pursue it.

Posted by: John | Feb 17, 2009 12:45:34 AM"

John has it right, good job, John.

John's explanation or definition is one that can be applied in any nation at any cultural or technological level. A court can be anything from a gathering of tribal elders or a formal wig wearing English Judge. The fact remains that what John said is universal. What makes John so right is that his explanation also allows for the creation of new law by presenting the court with new circumstances.

I'd add just one thing to Johns wisdom and that is that it is not just the justice system that must move in order to put law into play, it can be a plaintiff in a civil case or a witness in a criminal case.

Look at the U.S. Code and you see law, all of it legislated whatever its origins are in human culture, or in the fertile imaginations of legislators.

The second example of our mostly civilized according of parking spaces is more a matter of custom not law. After all no once can be charged with a crime or violation, and a court would laugh at the pleadings, if they choose to ignore the selection process and go ahead and claim the spot.

Law is the result of long evolutionary process constrained by forces of culture and history.

Legislation is the result of someone's bright idea.

Law derives from common practices, logic, and the development of new ideas over time.

Legislation is the end result of lobbying from positions that are often seen as part of a zero sum game.

Legal rules favor fairness between parties.

Legislative rules favor those who write the rules.

Don, your basic premise is correct, but your examples don't really illustrate that. Your first example appears to refer to official permissiveness with respect to traffic laws rather than legislation that is not law -- after all, the fact that makes it law is whether it can be adjudicated in a court, not whether the justice system chooses to pursue it. The second example equates law with social custom. The "first come, first served" custom would only be law if there was a way to enforce it. Law without teeth (see, e.g., the United Nations) is merely peer pressure.

Better examples are the common law, much of which never arose from "legislation," but rather was codified years after it was already used regularly to resolve disputes. Many of these rules can be sourced to an examination of equities, duties, and cost-benefit analyses, none of which were ever voted on by a parliament.