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… is from my emeritus colleague Vernon Smith [2]‘s profound 2002 Nobel Prize lecture, “Constructivist and Ecological Rationality in Economics [3]” (footnotes and citation deleted):
The early “law-givers” did not make the law they “gave”; they studied social traditions and informal rules and gave voice to them, as God’s, or natural, law. The common lawyer, Sir Edward Coke, championed seventeenth-century social norms as law commanding higher authority than the king. Remarkably, these forces prevailed, paving the way for the rule of law in England. Similarly, the cattlemen’s associations, land clubs, and mining districts in the American West all fashioned their own rules for establishing property rights and enforcing them: the brand on the hindquarters of his calf was the cattlemen’s indelible ownership signature on his property, enforced by gunmen hired through his cattle club; squatter’s rights were defended ably (possession is nine points of the law?) by the land clubs composed of those brave enough to settle wilderness lands in advance of veterans exercising their land script claims, and of settlers under the Homestead Act; mining claims were defined, established, and defended by the guns of the mining clubbers, whose rules were later to become part of public mining law.
DBx: Yes.
No myth is responsible for as much mischief through the ages as is the myth that proclaims that social order must be designed, as if society is a mechanism to be engineered. And no particular instance of this myth is worse than that which insists that law – the rules that govern human interactions – is and can only be the product of the state.
The state makes legislation (including, sometimes, codifications of law). The state never makes law.
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