… is from page 21 of the American Bar Association’s publication of James C. Carter’s 1890 essay “The Ideal and the Actual in the Law“:
Law is not a body of commands imposed upon society from without, either by an individual sovereign or superior, or by a sovereign body constituted by representatives of society itself. It exists at all times as one of the elements of society springing directly from habit and custom. It is therefore the unconscious creation of society, or in other words, a growth.
Legislators are legislation-makers; they are not lawmakers.
True law can no more be consciously designed and created outside of the myriad social interactions that give rise to true law than can a true price be consciously chosen outside of the myriad economic interactions that give rise to true prices. Commands that look to some people like law can be, and are, consciously designed and created. But these are not law. And because commands typically run against the spontaneous forces that give rise to law, such commands are typically against the law – just as a government-imposed price (or price control) results in something that looks like a price but is, in fact, not a true price at all.
A legislated minimum wage, for example, is not the true price of an hour’s worth of low-skilled labor. It is, instead, an arbitrary constraint forcibly imposed in order to override the true price; it is a substitute for the true price – but an inevitably poor and harmful substitute. The true price of an hour’s worth of low-skilled labor is set by markets and can be set (and discovered) only by markets. ‘Men of system’ delude themselves and others by confusing the legislatively imposed monetary minimum wage for a real wage. These ‘men of system’ fancy that they have the power to dictate and determine prices, but they are mistaken. The market value of an hour’s worth of labor does not obey the arrogant commands of people who fancy themselves god-like creators or engineers of society.
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Carter was a noted opponent of David Dudley Field and others whose mission was to codify – and, hence, risk ossifying – the common law. (I thank Andy Morriss for introducing me years ago to Carter and his work.)
