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A Fuller Understanding of Law

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Here’s a letter to The Week:

Quite apart from the question of whether or not Condoleezza Rice is a war criminal, Damon Linker’s definition of law is completely wrong (“No, Condoleezza Rice is not a war criminal [2],” May 23).  Arguing that international law is an oxymoron, Mr. Linker writes that “Laws … are written, enacted, and executed by governments, and they apply exclusively to those residing within territorially defined political communities (be they city-states, nations, or empires).  Citizens of liberal democracies hold, moreover, that laws gain legitimacy – and become binding – only with the consent of the governed.  And that standard is (tacitly) met only when the laws have been crafted by the people’s democratically elected representatives.”

Nothing could be further from the truth.  In fact, law is, as the great Harvard legal scholar Lon Fuller defined it, “the enterprise of subjecting human conduct to the governance of rules.”*  This enterprise requires neither that rules be written down nor enacted by a sovereign.  Murder and thievery are just two of many activities that were against the law – and punished severely – long before any legislature or monarch first wrote down proscriptions against them.

Indeed, even today, not only are a great many of the rules that people obey as law not inscribed in any statute book, but some of these laws run directly counter to the “laws” that are inscribed there.  Consider, for example, that if Mr. Linker’s definition of law were correct, he would have to insist that all unmarried adults in Massachusetts who have consensual sex with each other be arrested and punished for breaking the law – the “law” which, as still written in the Criminal Code of that state, prohibits fornication [3].  Yet does Mr. Linker really believe that, say, two unmarried Boston College sophomores who choose to sleep together violate the law?  And does he not see that a police officer who tried to prevent these young adults from sleeping with each other would, in fact, be a law-breaker?

It is a serious error to mistake legislation for law.  The two are not the same.

Donald J. Boudreaux
Professor of Economics
Martha and Nelson Getchell Chair for the Study of Free Market Capitalism at the Mercatus Center
George Mason University
Fairfax, VA 22030

* Lon L. Fuller, The Morality of Law [4] (New Haven: Yale University Press, 1969 [1964]), p. 106.