… is from pages 253-254 of the American jurist James Coolidge Carter’s profound, yet unfortunately neglected, (posthumous) 1907 book, Law: Its Origin, Growth and Function:
[I]t should be kept constantly in mind by the legislator that the function of the law resting upon custom, the function of legislation and the function, indeed, of all Government are the same, namely, to mark out the sphere in which the individual may freely act in society without encroaching upon the like freedom in others; that this sphere is primarily marked out by the unconscious operation of custom with a wisdom far beyond that of the wit of the wisest; that the function of conscious government, whether in the form of legislation or otherwise, is subsidiary to it, and that all legislation should observe this subordination and never attempt to subvert or supersede that which it is designed to aid.
DBx: Indeed so.
Or, rather I say “indeed so.” As good a test as any for how sincerely and consistently a person believes in individual liberty in an open, liberal, peaceful society is how enthusiastically or tepidly (or not at all) that person agrees with what Coolidge writes here. My agreement with Coolidge couldn’t be stronger. But I realize that I and other classical liberals (or genuine libertarians) are freakishly odd. Most people take it for granted that the state should, to one degree or another, consciously design society and use its powers of coercion to prevent individuals from doing particular peaceful activities while also compelling them to do other particular activities. Most people, upon reading this passage from Coolidge, would think him to have been somewhere between naive and nuts.
Relatively few people are content to leave other, peaceful people free of state coercion. The complex and productive patterns of human cooperation that emerge when individuals are left free to engage peacefully with each other, their property and contract rights respected and secure, are looked at by most people with either contempt or fear. The promise of using coercion to attempt to engineer human society into something closer to an imagined earthly paradise intoxicates nearly everyone. But intoxication-driven action, although exciting to the actors, is destined to turn out badly.
