Tom W. Bell The Origins and Nature of Law

1. Introduction I. Legal Models II. Legal Threats III. Legal Solutions Conclusion Tom W. BellThe Origins and Nature of Law IHS Liberty & Society Seminar, Chapman University, June 17, 2012

2. Introduction I. “The Law” = ? II. [text] III. [text] Conclusion In This Lecture What the law is. Where it came from. Two of its most important features: the common law and the rule of law. Tom W. Bell, The Origins and Nature of Law, slide 2, IHS Liberty & Society Seminar, June 17, 2012

3. Introduction I. “The Law” = ? II. [text] III. [text] Conclusion What Laws Affect Your Day-to-Day Behavior? Lon L. Fuller: “[L]aw is the enterprise of subjecting human conduct to the governance of rules.” 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.” Tom W. Bell, The Origins and Nature of Law, slide 3, IHS Liberty & Society Seminar, June 17, 2012

4. Peace Without Leviathan? Introduction I. “The Law” = ? II. [text] III. [text] Conclusion Hobbes: “Hereby it is manifest that, during the time men live without a common power to keep them all in awe, they are in that condition which is called war, and such a war as is of every man against every man.” Tom W. Bell, The Origins and Nature of Law, slide 4, IHS Liberty & Society Seminar, June 17, 2012

5. Introduction I. “The Law” = ? II. [text] III. [text] Conclusion A Case Study Tom W. Bell, The Origins and Nature of Law, slide 5, IHS Liberty & Society Seminar, June 17, 2012

6. Introduction I. “The Law” = ? II. [text] III. [text] Conclusion Government, Inc. Tom W. Bell, The Origins and Nature of Law, slide 6, IHS Liberty & Society Seminar, June 17, 2012

7. Introduction I. “The Law” = ? II. [text] III. [text] Conclusion • State: An administrative body that credibly claims a monopoly on the initiation of coercion within a particular territory. • Statist law (building on Fuller’s definition: 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. • Polycentric law comes from enterprises subjecting human conduct to the governance of rules without claiming a monopoly on the initiation of coercion. • It can be customary or privately produced. Some Terminology Tom W. Bell, The Origins and Nature of Law, slide 7, IHS Liberty & Society Seminar, June 17, 2012

8. Introduction I. “The Law” = ? II. Law’s Origins III. [text] Conclusion Law as Spontaneous Order Tom W. Bell, The Origins and Nature of Law, slide 8, IHS Liberty & Society Seminar, June 17, 2012

9. Introduction I. “The Law” = ? II. Law’s Origins III. [text] Conclusion I Hayek 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.” "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.” Tom W. Bell, The Origins and Nature of Law, slide 9, IHS Liberty & Society Seminar, June 17, 2012

10. Introduction I. “The Law” = ? II. Law’s Origins III. [text] Conclusion 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. The result: Natural rights to person, property, and promises. Tom W. Bell, The Origins and Nature of Law, slide 10, IHS Liberty & Society Seminar, June 17, 2012

11. Introduction I. “The Law” = ? II. Law’s Origins III. [text] Conclusion Tom W. Bell, The Origins and Nature of Law, slide 11, IHS Liberty & Society Seminar, June 17, 2012

12. Introduction I. “The Law” = ? II. Law’s Origins III. [text] Conclusion Great concern for individual rights and private property; Laws enforced by victims backed by reciprocal agreements; Standard adjudicative procedures to avoid violence; Offenses treated as torts punished by restitution; Strong incentives for the guilty to submit to punishment do to threat of social ostracism; and Legal change via an evolutionary process. Features of Customary Legal Systems Tom W. Bell, The Origins and Nature of Law, slide 12, IHS Liberty & Society Seminar, June 17, 2012

13. Introduction I. “The Law” = ? II. Law’s Origins III. [text] Conclusion How did the State Take Over the Law? 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. Tom W. Bell, The Origins and Nature of Law, slide 13, IHS Liberty & Society Seminar, June 17, 2012

14. Introduction I. “The Law” = ? II. Law’s Origins III. [text] Conclusion Tom W. Bell, The Origins and Nature of Law, slide 14, IHS Liberty & Society Seminar, June 17, 2012

15. Introduction I. “The Law” = ? II. Law’s Origins III. [text] Conclusion Tom W. Bell, The Origins and Nature of Law, slide 15, IHS Liberty & Society Seminar, June 17, 2012

16. Introduction I. “The Law” = ? II. Law’s Origins III. [text] Conclusion Tom W. Bell, The Origins and Nature of Law, slide 16, IHS Liberty & Society Seminar, June 17, 2012

17. Introduction I. “The Law” = ? II. Law’s Origins III. [text] Conclusion Tom W. Bell, The Origins and Nature of Law, slide 17, IHS Liberty & Society Seminar, June 17, 2012

18. Introduction I. “The Law” = ? II. Law’s Origins III. [text] Conclusion Tom W. Bell, The Origins and Nature of Law, slide 18, IHS Liberty & Society Seminar, June 17, 2012

19. Introduction I. “The Law” = ? II. Law’s Origins III. [text] Conclusion 1. States compete to attract human and financial capital. 2. 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. 3. Even within state boundaries--especially in the U.S.--polycentric law has survived. Competition Between Legal Systems Continues Tom W. Bell, The Origins and Nature of Law, slide 19, IHS Liberty & Society Seminar, June 17, 2012

20. Introduction I. “The Law” = ? II. Law’s Origins III. The Law, Today Conclusion Our 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.” Tom W. Bell, The Origins and Nature of Law, slide 20, IHS Liberty & Society Seminar, June 17, 2012

21. Introduction I. “The Law” = ? II. Law’s Origins III. The Law, Today Conclusion Tom W. Bell, The Origins and Nature of Law, slide 21, IHS Liberty & Society Seminar, June 17, 2012

22. Introduction I. “The Law” = ? II. Law’s Origins III. The Law, Today Conclusion 1. The common law embodies a few, simple rules that protect persons, property, and promises. 2. Courts find the common law; legislatures make statutory law. 3. Common law arises as an unplanned order, out of the resolution of various individual disputes. 4. Legislatures write statutory law and impose it, top-down, on all citizens. 5. Public choice pressures mean statutory law threatens to swallow common law. Common Law v. Statutory Law Tom W. Bell, The Origins and Nature of Law, slide 22, IHS Liberty & Society Seminar, June 17, 2012

23. Introduction I. “The Law” = ? II. Law’s Origins III. The Law, Today Conclusion Rule of Laws v. Law of Rulers Hayek (squee!) again: “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.” Tom W. Bell, The Origins and Nature of Law, slide 23, IHS Liberty & Society Seminar, June 17, 2012

24. Introduction I. “The Law” = ? II. Law’s Origins III. The Law, Today Conclusion Tom W. Bell, The Origins and Nature of Law, slide 24, IHS Liberty & Society Seminar, June 17, 2012

25. Introduction I. “The Law” = ? II. Law’s Origins III. The Law, Today Conclusion What Have We Learned? The law is the enterprise of subjecting human behavior to the governance of rules--a service industry. Law arose prior to the State. 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? Tom W. Bell, The Origins and Nature of Law, slide 25, IHS Liberty & Society Seminar, June 17, 2012