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A major confusion that befuddles the modern mind is the distinction between law and legislation. Too many moderns believe that law is exclusively legislation.
The definitive work on this important distinction is Hayek’s Law, Legislation, and Liberty [2], Vol. 1 (“Rules and Order”).
Law is so much more vast than legislation, and so much richer. Much of it – perhaps even most of it – isn’t written down anywhere. It’s embodied in people’s expectations about how others will act and about how others expect each of us to act under various circumstances.
I reflected on this fact yesterday in the George Mason University parking lot. It was mid-day, so parking-spaces were scarce. As I walked from my building to my parked car, keys in hand, a woman driving a car noticed me. She asked me if I was leaving. I immediately knew why she asked.
“Yep,” I replied. “But I’m parked down at the far end of the lot.”
She followed me slowly. As I neared my parked car, another car approached from the other direction; its driver, too, was clearly looking for a parking space. This second car paused momentarily when its driver saw me. But – and here’s the interesting fact – as soon as that second driver noticed the car following slowly behind me, this second car sped up and drove by, realizing that another driver had established a prior claim on the parking space that I was about to abandon.
That is, merely by being the first car to follow a pedestrian walking to his or her car in a crowded parking lot establishes a property right for the “following” car in the parking space about to be abandoned.
This rule isn’t written anywhere. No one designed it or planned it. It evolved spontaneously. And it works remarkably well. I regard this rule as a law.