Why Common Law is better than Government Law

How can something be considered a crime if there is no victim? This is a problem: people cannot simply make sure they don’t hurt others; they can’t just base their actions off common sense and respect for the standards of their community to stay out of trouble.

People must also make sure they don’t do something labeled wrong by the government–even though it is impossible to know all the laws which the government has created, and what they call wrong is not always intuitive, nor offensive to anyone.

Thus law goes beyond the resolution of disputes between individuals and groups, which was the origin of common law. There are third parties trolling around looking for a statute that has been broken, when no one has been wronged by the breaking of that rule. Government has perverted the rule of law.

In an essay called “The Obviousness of Anarchy,” John Hasnas discusses the origins of common law, and how it was born out of anarchy. He says that clearly no society can exist without governance–that’s part of the definition of a societybut that does not necessarily mean government.

In arguing for anarchy, I am arguing that a society without a central political authority is not only possible but desirable. That is all I am doing, however. I am not arguing for a society without coercion. I am not arguing for a society that abides by the libertarian non-aggression principle or any other principle of justice. I am not arguing for the morally ideal organisation of society. I am not arguing for utopia. What constitutes ideal justice and the perfectly just society is a fascinating philosophical question, but it is one that is irrelevant to the current pursuit. I am arguing only that human beings can live together successfully and prosper in the absence of a centralised coercive authority. To make the case for anarchy, that is all that is required.

Inevitably, there will be disputes between humans. Hasnas essentially argues that the best society achievable is one where the entire governing structure is to simply settle disputes. The rule of law was born out of trying to peacefully solve disputes that might have otherwise erupted into violence. Common law is a collection of these outcomes, so that others in similar predicaments can see what worked to avoid violent outcomes.

…common law provides us with rules that facilitate peace and cooperative activities. Government legislation provides us with rules that facilitate the exploitation of the politically powerless by the politically dominant. The former bring order to society; the latter tend to produce strife. Hence, not only is government not necessary to create the basic rules of social order, it is precisely the rules that the government does create that tend to undermine that order.

This means there had to first be a conflict before any legal proceedings started. Courts consisted of respected members of a community who had been involved in previous conflict resolutions, and could therefore suggest outcomes that had in the past avoided violence, and thus would likely work for both parties involved in the dispute.

English common law is, in fact, case-generated law; that is, law that spontaneously evolves from the settlement of actual disputes. Almost all of the law that provides the infrastructure of our contemporary society was created in this way. Tort law, which provides protection against personal injury; property law, which demarcates property rights; contract law, which provides the grounding for exchange; commercial law, which facilitates complex business transactions; and even criminal law, which punishes harmful behavior, all arose through this evolutionary process. It is true that most of our current law exists in the form of statutes. This is because much of the common law has been codified through legislation. But the fact that politicians recognised the wisdom of the common law by enacting it into statutes, hardly proves that government is necessary to create rules of law. Indeed, it proves precisely the opposite.

As for uniformity of law, in common law, the best practices naturally become widespread, because the entire point is to solve a problem. And law that does not become uniform, shouldn’t become uniform. Cultures are different, and communities have different values and standards.

Government is the entity making non-intuitive laws: random laws all of which you cannot possibly know. Common law is obvious; if you aren’t causing a dispute with someone, you are good.

Understanding the traditional rules of common law requires only that one be a member of the relevant community to which the rules apply, not that one be an attorney.

Government legislation, in contrast, need have no relationship to either the understanding or the moral sensibility of the ordinary person.

Government adds their own arbitrary laws on top of the ones that naturally grew from dispute resolution. These crimes with no victim are exactly what undermines the existence of a peaceful society. Government is not the entity stopping mass murder, they are what perpetuates it.

Throughout his piece, Hasnas repeatedly tells readers to look around when it comes to evidence that things can, will, and do function just fine without government law in certain areas.

Business is contracted around the world among parties from virtually all countries. Although there is neither a world government nor world court, businesses do not go to war with each other over contract disputes. News is almost always the news of violent conflict. The very lack of reporting on international business disputes is evidence that international commercial disputes are effectively resolved without the government provision of courts. How can this be?

The answer is simplicity itself. The parties to international transactions select, usually in advance, the dispute settlement mechanism they prefer from among the many options available to them. Few choose trial by combat.

What businesses avoid is American courts because of their slow speed and unpredictable rulings. And this is the main argument for why there would still be effective governance without government: disputes threaten profits, violence threatens profits, and unpredictability threatens profits.

So we don’t need legislatures: all law can be created through dispute resolution. We don’t need government courts: in current situations with no government, disputes are settled just fine without violence.

And we don’t need government enforcers: government sponsored law enforcement is relatively recent, and society as we know it predates public police.

The proper response to the claim that government must provide police services is: look around. I work at a University that supplies its own campus police force. On my drive in, I pass a privately operated armored car that transports currency and other valuable items for banks and businesses. When I go downtown, I enter buildings that are serviced by private security companies that require me to sign in before entering. I shop at malls and department stores patrolled by their own private guards. While in the mall, I occasionally browse in the Security Zone store that sells personal and home protection equipment. I converse with attorneys and, once in a while with a disgruntled spouse or worried parent, who employ private detective agencies to perform investigations for them. I write books about how the United States Federal government coerces private corporations into performing criminal investigations for it.25 When I was younger, I frequented nightclubs and bars that employed “bouncers.” Although it has never happened to me personally, I know people who have been contacted by private debt collection agencies or have been visited by repo men. Once in a while, I meet people who are almost as important as rock stars and travel with their own bodyguards. At the end of the day, I return home to my community that has its own neighborhood watch.

Look around! The most important laws that actually protect people from harm were not created by government. The most effective courts which settle disputes without violence were not created by government. And most current security which keeps us safe at work, investigates crime, and brings people to justice are not government forces!

No, aren’t creating utopia. But what could exist is a society in which it becomes extremely unprofitable to be aggressive.

As I have said in the past, eternal vigilance will always be the price of freedom, no matter the mechanism of governance. It is just easier to be vigilant when society is based on natural rights, because there are no excuses for violent aggression like, “I’m in the government.”



2 thoughts on “Why Common Law is better than Government Law

  1. Pingback: What are Rights? Do Rights Exist? | Joe Jarvis

  2. Pingback: Lord of the Rings: Right and Wrong Don’t Change Because of Strange Times | Joe Jarvis

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