Tom W. Bell

The Origins and Nature of Law

IHS Liberty & Society Seminar, Chapman University, June 26, 2011

Introduction

I. Legal Models

II. Legal Threats

III. Legal Solutions

Conclusion

Introduction

1. What the law is.

2. Where it came from.

3. Two of its most important features: the common law and the rule of law.

Introduction

I. “The Law” = ?

II. [text]

III. [text]

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 2, IHS L&S Seminar, Chapman U., June 26, 2011

I. What is “The Law”?

1. Worksheet question: “What laws most directly affect your day-to-day behavior?”

2. The law as a service industry.

3. Lon L. Fuller: "[L]aw is the enterprise of subjecting human conduct to the governance of rules.”

4. Fuller observed, "A possible objection . . . is that it permits the existence of more than one legal system governing the same population. The answer is, of course, is that such multiple systems do exist and have in history been more common than unitary systems."

5. See, e.g., Washington, D.C.

Introduction

I. “The Law” = ?

II. [text]

III. [text]

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 3, IHS L&S Seminar, Chapman U., June 26, 2011

I. What is “The Law”?

6. Some terminology.

Introduction

I. “The Law” = ?

II. [text]

III. [text]

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 4, IHS L&S Seminar, Chapman U., June 26, 2011

A. State: An administrative body that credibly claims a monopoly on the initiation of coercion within a particular territory.

B. Add Fuller’s definition, and you get statist law: The enterprise of subjecting human conduct to the governance of rules administered by a body that credibly claims a monopoly on the initiation of coercion within a particular territory.

C. Polycentric law comes from enterprises subjecting human conduct to the governance of rules without claiming a monopoly on the initiation of coercion.

D. It may be customary or privately produced.

II. The Origins of the Law

Law arose as a spontaneous order.

A what?

See, Can Order be Unplanned? http://www.youtube.com/watch?v=aPICY2SXgn0

Introduction

I. “The Law” = ?

II. Law’s Origins

III. [text]

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 5, IHS L&S Seminar, Chapman U., June 26, 2011

II. The Origins of the Law

1. Friedrich A. Hayek: "Society can [] exist only if by a process of selection rules have evolved which lead individuals to behave in a manner which makes social life possible.”

2. "At least in primitive human society, scarcely less than in animal societies, the structure of social life is determined by rules of conduct which manifest themselves only by being in fact observed.”

3. A purely positivist account: Rules arise as an unplanned order from the repeated interactions of individual agents, with conflicting ends, who pose mutually credible threats.

4. The result: natural rights to person, property, and promises.

Introduction

I. “The Law” = ?

II. Law’s Origins

III. [text]

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 6, IHS L&S Seminar, Chapman U., June 26, 2011

II. The Origins of the Law

5. After a wide review of the field, Bruce Benson concluded that customary legal systems tend to have six basic features:

Introduction

I. “The Law” = ?

II. Law’s Origins

III. [text]

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 7, IHS L&S Seminar, Chapman U., June 26, 2011

A. a predominant concern for individual rights and private property;

B. laws enforced by victims backed by reciprocal agreements;

C. standard adjudicative procedures established to avoid violence;

D. offenses treated as torts punishable by economic restitution;

E. strong incentives for the guilty to yield to prescribed punishment due to the threat of social ostracism; and

F. legal change via an evolutionary process of developing customs and norms.

II. The Origins of the Law

6. How did we get from customary law to statist law?

Basically, because an entity enjoying a natural monopoly in the use of coercive force has the ability and incentive to invoke non-express consent as a justification for oversupplying government services.

Introduction

I. “The Law” = ?

II. Law’s Origins

III. [text]

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 8, IHS L&S Seminar, Chapman U., June 26, 2011

Introduction

I. “The Law” = ?

II. Law’s Origins

III. [text]

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 9, IHS L&S Seminar, Chapman U., June 26, 2011

Introduction

I. “The Law” = ?

II. Law’s Origins

III. [text]

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 10, IHS L&S Seminar, Chapman U., June 26, 2011

Introduction

I. “The Law” = ?

II. Law’s Origins

III. [text]

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 11, IHS L&S Seminar, Chapman U., June 26, 2011

Introduction

I. “The Law” = ?

II. Law’s Origins

III. [text]

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 12, IHS L&S Seminar, Chapman U., June 26, 2011

Introduction

I. “The Law” = ?

II. Law’s Origins

III. [text]

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 13, IHS L&S Seminar, Chapman U., June 26, 2011

II. The Origins of the Law

6. States never entirely quashed competition among legal systems, however.

Introduction

I. “The Law” = ?

II. Law’s Origins

III. [text]

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 14, IHS L&S Seminar, Chapman U., June 26, 2011

A. States compete to attract human and financial capital.

B. The law merchant--a set of commercial rules regulating international trade--has continued to survive in a realm safely beyond the reach of any one state's laws.

C. Even within state boundaries--especially in the U.S.--polycentric law has survived.

III. The Law, Today

1. We live in a mixed system.

As Fuller said, “If the law is considered as 'the enterprise of subjecting human conduct to the governance of rules,' [Fuller's own definition] then this enterprise is being conducted, not on two or three fronts, but on thousands. Engaged in this enterprise are those who draft and administer rules governing the internal affairs of clubs, churches, schools, labor unions, trade associations, agricultural fairs, and a hundred and one other forms of human association. . . there are in this country alone ‘systems of law’ numbering in the hundreds of thousands.”

Introduction

I. “The Law” = ?

II. Law’s Origins

III. The Law, Today

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 15, IHS L&S Seminar, Chapman U., June 26, 2011

Introduction

I. “The Law” = ?

II. Law’s Origins

III. The Law, Today

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 16, IHS L&S Seminar, Chapman U., June 26, 2011

III. The Law, Today

2. Common law v. statutory law.

Introduction

I. “The Law” = ?

II. Law’s Origins

III. The Law, Today

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 17, IHS L&S Seminar, Chapman U., June 26, 2011

A. The common law embodies a few, simple rules that protect persons, property, and promises.

B. Courts find the common law; legislatures make statutory law.

C. Common law arises as an unplanned order, out of the resolution of various individual disputes.

D. Legislatures write statutory law and impose it, top-down, on all citizens.

E. Public choice pressures mean statutory law threatens to swallow common law.

III. The Law, Today

3. The rule of law v. the law of rulers. As Hayek said,

“Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all its technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand--rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge.”

4. See also, The Rule of Lawhttp://www.youtube.com/watch?v=XAJVu9LK7WE

Introduction

I. “The Law” = ?

II. Law’s Origins

III. The Law, Today

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 18, IHS L&S Seminar, Chapman U., June 26, 2011

Conclusion

1. What is "the Law"? The enterprise of subjecting human behavior to the governance of rules--a service industry.

2. Law came first; the statist monopoly followed.

3. Today:

A. We live in a mixed legal order, including both statist and polycentric elements.

B. Statist law itself includes both common law and statutory law.

C. The interesting problem: How can we move to a more decentralized legal order while preserving the rule of law?

Introduction

I. “The Law” = ?

II. Law’s Origins

III. The Law, Today

Conclusion

Tom W. Bell, The Origins and Nature of Law, slide 19, IHS L&S Seminar, Chapman U., June 26, 2011