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Law Differs from Legislation

Here’s a letter that I sent last week to the Washington Post:

Masterfully explaining the power of Charles Darwin’s ideas, George will says that “As a practical matter, we cannot expel government from our understanding of society as Darwin expelled God from the understanding of nature. But Darwinism opens the mind to the fecundity of undirected, spontaneous, organic social arrangements – to Edmund Burke and Friedrich Hayek” (“How Congress Trumps Darwin,” February 8).
Perhaps, practically, we indeed cannot expel government from our understanding of society.  But Hayek takes us surprisingly far in that direction.  He helps us to comprehend that law itself (as opposed to legislation) is largely spontaneous and undesigned.  Not all legislation is law – consider the fact that highway drivers routinely exceed posted speed limits by five or ten miles per hour.  And not all law is created by legislation (or even by court proceedings) – consider the “first come, first served” rule that nearly all drivers obey for determining which of the many drivers in search of parking places in a crowded parking lot gets a particular space that is about to be vacated.

Donald J. Boudreaux