Jeremy Bentham was, in fact, the first Englishman of note who advocated the expediency of a Code in the modern sense, that is, a legislative publication in statutory form of the whole body of the law so as to supersede all unwritten law. He was a man of pre-eminent intellectual ability, but not an experienced lawyer, or a safe guide upon any subject. His fundamental error consisted in his inability to conceive that the law of any people, savage or civilized, is, and of necessity must be, a gradual and slow evolution – a growth – proceeding from their original nature acting upon, and acted upon by, the circumstances with which they are surrounded. He imagined that a system of law could be created per saltum by spinning out through purely logical processes the consequences of a series of original intellectual conceptions.
Carter went on to say that “no sane man of intelligence can at the present day” be found to hold such a naive belief. Alas, Carter might have been correct about this latter matter when he wrote these words 132 years ago. But the world is today filled with far too many people who, apparently both sane and intelligent, not only believe that law can be improved by conscious design but that sound law must be consciously designed and implemented. In short, too many people today equate legislation with law, and scoff contemptuously – if in ignorance of law, jurisprudence, and history – at anyone who suggests that legislation is not law and that law need not be legislated.
Members of Congress, of Parliament, of city councils – these men and women in these capacities are not lawmakers, despite their being called “lawmakers” constantly. They are legislators. They make legislation; they do not make law. They should be called “legislation-makers” – or, better yet, “diktat-makers.” And in practice nearly all of their significant pieces of legislation break the law, for legislation is typically meant to prevent ordinary people from choosing and acting in ways that come ‘naturally’ to them as members of their society – that is, legislation chiefly is meant to force people to choose and act contrary to the evolved laws of society.
The best works on this matter include almost any writings by Carter, and the works of Bruno Leoni (here and here), Hayek’s 1973 volume 1 of Law, Legislation, and Liberty, and Harold Berman’s magisterial 1983 volume, Law and Revolution. See also the latest edition of David Friedman’s great 1973 work, The Machinery of Freedom; the 2011 2nd edition of Bruce Benson’s 1990 study, The Enterprise of Law: Justice Without the State; Garrett Barden’s and Tim Murphy’s 2010 volume, Law and Justice in Community; my colleague Pete Leeson’s 2014 book, Anarchy Unbound: Why Self-Governance Works Better Than You Think; and GMU Econ alum Ed Stringham’s 2015 book, Private Governance, as well as this 2007 edited volume.