… is from page 332 of the American jurist James Coolidge Carter’s posthumously published 1907 book, Law: Its Origin, Growth and Function:
The means employed by the judge to determine the character of any piece of social conduct, as being legal or illegal, is, wherever there is not fit and acknowledged precedent to guide, to do precisely the same thing which primeval man did: observe the consequences of the conduct in question and approve or condemn it according as it appears to be or not to be in accordance with fair expectation…. Learned judges recognise the fact that all legal rules under whatever head of the law they belong must be consistent with each other, and this can be only when they are in accordance with fair expectation.
DBx: Law (as opposed to legislation) grows spontaneously out of expectations – expectations which themselves emerge spontaneously in the course of human beings interacting daily with each other in a multitude of different, detail-rich circumstances. Law (as opposed to legislation) is never made in the sense of being consciously conceived and constructed, although much of it can be, and is, articulated and recorded in the same way that lexicographers articulate and record the evolved meaning of words.
Each of us, in our daily lives, contributes imperceptibly to the making of law; we do so in the ways that we act and in how we react to the actions of others. These actions include the ways that we talk about our and others’ actions. In this sense law is natural: law emerges naturally from the actions, interactions, and the corresponding expectations, of individuals. Law is the result of human action but not of human design.
In contrast, legislators do not as such make law. Legislators make legislation. Legislators make and arrange for the enforcement of dictates and commands. These dictates and commands might be splendid and universally approved and loudly applauded. But they are not law. The commands issued by legislators are merely legislation. The widespread assumption that legislation is law is the source of all manner of mischief.
