This power [of the state] operating externally protects society against its enemies; its function in its internal operation is to ensure the enforcement of law, that is of custom, and, so long as it confines itself to its true province, to make still more clear those boundary lines of individual action the observance of which is the supreme guaranty of Liberty. Any law which has an effect beyond that of maintaining these lines, is by so much an encroachment upon just liberty, and as that liberty is the choicest of blessings so that encroachment is the worst of woes; and whether it is made by the decree of an absolute monarch or by the regular enactment of the legislature of a democratic government, is, alike in either case, what we denominate by the word Tyranny.
DBx: So true.
Yet even as astute a legal philosopher as Carter here uses the word “law” as a synonym for “legislation” (as above in “Any law which has an effect beyond….”). Carter himself explained with great eloquence and persuasiveness that law is that which emerges spontaneously from everyday human interactions. Law is no one’s or no agency’s creation, and cannot ever be so. That which states declare and command isn’t ever law; that which states declare and command is legislation (although states can, and sometimes do, incorporate law into legislation, as, for example, when a state explicitly includes prohibitions on theft in its criminal code).
While I’m picking nits with a quotation that I otherwise find to be profound and important, I note also that Carter here does as so many other people have done throughout history when he simply assumes that the state’s function is to protect citizens from both foreign aggressors and from affronts to their liberty. Such functions would be splendid. But without here speculating on the accuracy of Carter’s positive claim about the functions of the state, I content myself merely to warn against assuming that that which we might wish the state to do is, as such, an historically accurate account of what the state actually does or of what its functions really are.
On the relationship between democracy and law, it’s plausible to suppose that legislation that is grounded in democratic processes will generally (unlike legislation issued by a monarch) conform closely to the widespread expectations of the populace – that is, conform closely to the law. It’s plausible, but not necessarily true. It’s also plausible that the many ‘imperfections’ that public-choice scholarship has revealed to mar even democratic political processes cause majority-rule outcomes (and those of other democratic decision-making rules) to violate the law frequently and egregiously.