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No Joke: Law Does Not Require Legislation for Its Creation or Enforcement

Cafe patron James McCammon sent to me this fascinating essay on the informal arrangements that professional comedians use to create and enforce property rights in their jokes.  Here’s part of the closing paragraph:

Far from being dismayed by this extralegal system, Oliar and Sprigman came away impressed by the comedians’ informal arrangement. “They have managed to put together a community project that requires a pretty high-level amount of group coordination,” says Sprigman. It’s a lot better than the joke-stealing free-for-all of Berle’s era. And it’s hard to imagine a more formal joke protection system, involving copyright filings and other legal procedures, working well in a world where comics are constantly generating and tweaking new material.

Law is emergent and undesigned.  Law isn’t created; it evolves.  Legislation is created and designed.  Legislation is not law and law is not legislation.  The distinction between legislation and law is one that deserves far greater emphasis than it gets.

The modern state has gotten enormous amounts of unjustified and dangerous power by convincing large numbers of people of the truth of three false propositions – namely, that (1) only the state can supply sound money; (2) only the state can supply and enforce law; and (3) rules promulgated by the state are necessarily or by definition law.


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