… is from page 4 of Garrett Barden’s and Tim Murphy’s 2010 Oxford University Press book, Law and Justice in Community (footnotes excluded):
The living law is the set of communally accepted norms that express how, in certain types of situation, members of the community are obliged to act. Indeed, in many cases, we simply use the term ‘custom’ to the living or communal law.
The living law of a community is originally unwritten and represents what is generally accepted as a community and what can, in some of its aspects, distinguish it from other communities. It constitutes the commonly accepted moral rules of the community, some of which, but rarely ever all of which, may be written down. In any community some norms will be taken to be of greater importance than others; some will be of such significance that failure to act in accord with them will occasion significant disapprobation; others will meet with only mild disapproval or disdain.
The living law, in other words, is a moral tradition: it is the set of those ways of acting that, in a particular community, are admired and thought appropriate to common types of situations.
Indeed so.
Law – as opposed to legislation – is never consciously designed. Like language, law evolves undesigned from countless interpersonal interactions. Like language recorded in dictionaries and in books of grammar, law can be recorded and codified. But such recordation and codification no more create law than does the publication of a dictionary and a book of grammar create language. And just as arrogant codifiers of a language, were they sufficiently powerful, might be imagined to send out armed troops to prohibit certain common uses of verbs and to demand certain uncommon uses of nouns, arrogant codifiers of the law, when sufficiently powerful, actually do send out armed troops to prohibit certain common lawful practices (such as paying low-skilled workers wages below the dictated minimum) and to demand the performance of certain uncommon unlawful practices (such as paying to armed goons punitive fees for the ‘offense’ of buying goods sold by foreign merchants).
The widespread mystical belief that the state is the source of law is one of the largest barriers remaining to a more accurate and true understanding of social reality. The state can, in the best of remotely possible circumstances, enforce law (although law enforcement does not require the state); the state can also – and also only under the best of circumstances – codify law into legislation (although not without great risks). But the state can no more make law than it can make language or market prices. That it frequently pretends to make such phenomena is merely imperious pretense.
