[TOC]
1 - What is Legislation?
Though I hate to give it a place in the scheme of things, legislation, I suppose, falls as one of two heads of law. First is the common law, the sweetheart at the head of the table who gets things done by consent and agreement; and then, at the other end, smelly and brutish, with sword and rope, sits legislation and claims its right to a position at the table because it fits the definition of the larger concept of law: "A rule of conduct imposed by authority. ... The body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects."2 However, legislation is always subject to losing its authority as law by slipping out from under the definition; and this, on account of its despicable character. Legislation will lose its force as being law when a significant part of the community does not and will not recognize legislation (for whatever reason) as being binding upon itself.

[TOC]
2 - The Object of Legislation:-

A person or group of persons, surprisingly easily, can make another or others do what is wanted. One way is by negotiation and accommodation, viz. by contract, that is to say, to trade with them. Another way is to command that which is desired to be done and back it up with the threat of brute physical force: that is to use coercion: that is what we call legislative law: that is the dark side of the law.

Let me turn to Leslie Stevenson, "a reader in logic and Metaphysics at the University of St. Andrews, Scotland" who states, fairly, the object of legislation:

"The object of our legislation is not the welfare of any particular class, but of the whole community. It uses persuasion or force to unite all citizens and make them share together the benefits which each individually can confer on the community; and its purpose in fostering the attitude is not to enable everyone to please himself, but to make each man a link in the unity of the whole."3

[TOC]
3 - The Origins of Legislation:-

The word legislation is derived from the Latin words standing for "law" and "bringing." A quick check of the OED reveals that originally the word had more of a religious meaning than anything else, in that an act of legislation was an act of a high priest revealing a Divine Law. Today we understand that legislation consists of sets of rules which a majority of legislators, sitting in their legislature, declare to be laws; which, as such, become enforceable through the coercive power of the state. Today, and for some time now, these rules have been printed up and bound into books, statute books. Before the days of solemn legislatures it was not thought necessary to write laws down in any one place; indeed, legislation, as I have just explained, did not much exist before the creation of the first legislatures; it never did fill any prominent place among the duties of a king.

Originally the principal function of legislatures was to control the power of the king. They did this by controlling the supply of money for the needs of the crown; thus, in its earlier day the legislature was an overseer of the power of the crown. It pretty well restricted its law making activities to that of making rules for itself; and, of course, rules as to what trading commodities were to be taxed, so to raise for the crown the money it needed for its various and ever growing needs. Prior to the passing of The Great Reform Bill of 1832 by the British parliament, little thought was given to improve the state of society by the use of legislation. Indeed, it would be difficult to point to much positive social legislation passed, prior to the arrival of the 20th century.

In the late 19th century we see examples of legislative efforts to codify the existing law. The Infant's Relief Act of 1874 was but a declaration or publication of the common law development that an infant's contract is voidable at the infant's option. Same can be said of the Sale of Goods Act of 1893, and the Law of Property Act of 1925 (in most of its aspects). These were legislative attempts to sort out the apparent higgledy-piggledy status of the common law. This was an innocent start; but all lamentable situations which lodge themselves, inextricable it seems, usually make their appearance with an innocent start. In the western democracies the social engineers were given a full head, particularly after WWII, and the quantity of meddlesome legislation picked up in an exponential manner and continued over a forty year period, or so; and only in the last decade, have we seen, as the huge social bills began rolling in, some reversal of a process which was tapping out the two essentials ingredients of social activity (no matter the kind): incentive and liberty.

[TOC]
4 - The Legislative Process: Piecemeal v. Holistic:-

If the elected representatives were to do their job properly then they would pass far fewer laws and be much the busier for it. I do not question that part of the legislator's job is to pass rules (legislation) that they and the rest of us are bound to obey; but, the actual enactment of legislation, is a ceremonial proceeding which takes place at the very end, of, what should be, a very painstaking process. It is not the legislator's job, nor is it possible, to come up with a grand social design. The approach to the serious business of law making has long since been established: there are rules.4 These rules are to govern those charged with the task; and they must, during the entire process, constantly keep the object of the exercise in mind. The rules first call for a careful defining of the terms. Then the rules allow for a change in the law only where it can be demonstrated that the change would not only effectively deal with the social evils to be got at, but shown to be free from greater evils. Further, in addition, any new legislation proposed should be consistent with existing law.

This business of passing laws can only be done on a "piecemeal" basis, it is, as I have already pointed out, not possible to come up with a grand social design. Sir Karl Popper, (1902-92) in his work, The Poverty of Historicism (1957), deals with the point:

"The piecemeal engineer [as opposed to the 'holistic' or 'Utopian engineer'] knows like Socrates, how little he knows. He knows that we can learn only from our mistakes. Accordingly, he will make his way, step by step, carefully comparing the results expected with the results achieved, and always on the look-out for the unavoidable unwanted consequences of any reform; and he will avoid undertaking reforms of a complexity and scope which make it impossible for him to disentangle causes and effects, and to know what he is really doing. ...
The holists reject the piecemeal approach as being too modest. Their rejection of it, however, does not quite square with their practice; for in practice they always fall back on a somewhat haphazard and clumsy although ambitious and ruthless application of what is essentially a piecemeal method without its cautious and self-critical character. The reason is that, in practice, the holistic method turns out to be impossible; the greater the holistic changes attempted, the greater are their unintended and largely unexpected repercussions, forcing upon the holistic engineer the expedient of piecemeal improvization. In fact, this expedient is more characteristic of centralized or collectivistic planning than of the more modest and careful piecemeal intervention; and it continually leads the Utopian engineer to do things which he did not intend to do; that is to say, it leads the notorious phenomenon of unplanned planning. ...
It seems to escape the well-meaning Utopianist that this programme implies an admission of failure, even before he launches it. For it substitutes for his demand that we build a new society, fit for men and women to live in, the demand that we 'mould' these men and women to fit into his new society. This, clearly, removes any possibility of testing the success or failure of the new society. For those who do not like living in it only admit thereby that they are not yet fit to live in it; that their 'human impulses' need further 'organizing'. But without the possibility of tests, any claim that a 'scientific' method is being employed evaporates. The holistic approach is incompatible with a truly scientific attitude." [(Routledge, 1969), p. 67, pp. 68-9 & p. 70.]

[TOC]
5 - Legislation: Robbers' Rules:-

Lysander Spooner:

"What, then, is legislation? It is an assumption by one man, or body of men, of absolute, irresponsible dominion over all other men whom they can subject to their power. It is the assumption by one man, or body of men, of a right to subject all other men to their will and their service. It is the assumption by one man, or body of men, of a right to abolish outright all the natural rights, all the natural liberty of all other men; to make all other men their slaves; to arbitrarily dictate to all other men what they may, and may not, do; what they may, and may not have; what they may, and may not, be. It is, in short, the assumption of a right to banish the principle of human rights, the principle of justice itself, from off the earth, and set up their own personal will, pleasure, and interest in its place. All this, and nothing less, is involved in the very idea that there can be any such thing as human legislation that is obligatory upon those upon whom it is imposed."7

"All these laws have had no more real obligation than have the agreements which brigands, bandits, and pirates find it necessary to enter into with each other, for the more successful accomplishment of their crimes, and the more peaceable division of their spoils. ...
Thus the whole business of legislation, which has now [mid 19th century] grown to such gigantic proportions, had its origin in the conspiracies, which have always existed among the few, for the purpose of holding the many in subjection, and extorting from them their labor, and all the profits of their labor.
And the real motives and spirit which lie at the foundation of all legislation - notwithstanding all the pretences and disguises by which they attempt to hide themselves - are the same to-day as they always have been. The whole purpose of this legislation is simply to keep one class of men in subordination and servitude to another."8

Legislation always proceeds on the false notion that the majority is in the right. The only thing a majority has for sure, is the power to sweep away the rights of the minority. A wrong idea is a wrong idea no matter how many should want to believe it. History has proven, time and time again, that those who believe in the right idea are often in the minority. Professor Bruno Leoni:

"Whereas scientific and technological results are always due to relatively small minorities or particular individuals, often, if not always, in opposition to ignorant or indifferent majorities, legislation, especially today, always reflects the will of a contingent majority within a committee of legislators who are not necessarily more learned or enlightened than the dissenters. Where authorities and majorities prevail, as in legislation, individuals must yield, regardless of whether they are right or wrong. ...
Too many vested interests and too many prejudices are obviously ready to defend the inflation of the legislative process in contemporary society. However, unless I am wrong, everybody will be confronted sooner or later with the problem of a resulting situation that seems to promise nothing but perpetual unrest and general oppression."9

[TOC]
6 - Certainty of Law:-

One of the principal reasons given by those who advocate legislation is that with legislation the population will have, to a better degree, certainty of law. It is necessary, if a person is to plan their affairs, that he or she knows what the law says about the particular activity that is being contemplated. We see from a study of the history of law that this element, certainty of the law, has ranked high in the mind of the juridic thinker. The Greeks wrote their laws on the walls of public buildings; we should do no less, than writing them out in statute books. Supporters of legislation argue that judge made law10 is too uncertain and can only be found by persons versed in legal research, in dusty old case reports.

The truth of the matter is, that written law, is more uncertain than judge made law, the common law. And the reason for that, is, it is simpler to change written law than the common law. Common law is a slow moving, evolutionary sort of thing; it is not under the command of any single generation. As experience has proven, anyone of us can go to bed one night with one set of legislative laws and wake up next morning with an entirely different set. One set of laws are passed to cure a perceived problem. After some time, assuming the problem has been relieved (often there is no effect, indeed the problem to be got at can become even worse on account of the legislation) other problems are brought on directly related to the implementation of the "curing" legislation. So, more legislation is rushed in to fix the additional problems. And so, it is not unusual to see certain legislation to be written and rewritten over and over. This is a separate and inherent problem: the jerkiness in legislation. Judges, on the whole, are scholarly individuals who are interested in ascertaining things rather than, like legislators, changing things. So too, unlike legislators, judges cannot easily enact arbitrary rules of their own; we needn't expect sudden laws from judges as we have come to expect from legislators with their wide ranging and imperious manner.

Walter Bagehot, that much respected English legal writer, wrote about this inherent jerkiness in legislation:

"The manner of our legislation is indeed detestable, and the machinery for settling that manner odious. A committee of the whole House, dealing, or attempting to deal, with the elaborate clauses of a long Bill, is a wretched specimen of severe but misplaced labour. It is sure to wedge some clause into the Act, such as that which the judge said 'seemed to have fallen by itself, perhaps, from heaven, into the mind of the legislature', so little had it to do with anything on either side or around it. At such times government by a public meeting displays its inherent defects, and is little restrained by its necessary checks."11

[TOC]
7 - The Common Will:-

Another of the arguments of those who advocate the extensive use of legislation is that it is through legislation that the will of the people, the common will, might be expressed. Common will is a vaporous phantasm in an ideologue's head. The common will is not something that exists in real life, any more than any kind of an average exists in real life. "... nobody is more competent to know what one's will is than one is oneself."12 Thus, we must, as much as possible, leave the decision making process at the level which will satisfy the most numbers, viz. at the level of the people themselves: -- hiring "experts" to conjure up what it is the people want on the basis of something that does not exist, the common will, is both expensive and fruitless.

"... a 'common' will, that is, a will that may be presumed as existent in all citizens, but to the expression of the particular will of certain individuals and groups who were lucky enough to have a contingent majority of legislators on their side at a given moment."13 (Leoni.)

The common will can only be had by a survey of the market of ideas, including legal ideas. Common law, by its nature is, in fact an ongoing survey; and, more than that -- it, in time, identifies the legal problems and brings a specific remedy tailored to the aggrieved party; and, not much at the general expense. It is a myth that in a collectivist system the law passing body is guided by the common will. A country which attempts to set itself up extensively under legislative law, at the expense of common law, is like a country in which all the relevant decisions are made by a handful of directors, whose knowledge of the whole situation is fatally limited and whose respect, if any, for the people's wishes is subject to that limitation." As Leoni points out, there is more than an analogy between the market economy and common law, "just as there is much more than an analogy between a planned economy and legislation."15

We all seem to make the assumption that, somehow, legislators not only know how to cure a particular social problem; but that they understand, in the first place, what the problem, or rather what the antecedents of the problem are. "Social scientists" do not have the power to follow out in thought, with any correctness, the sequences of even simple phenomena, much less those of a more complex nature such as those which societies display. It would be to our considerable advantage, in these circumstances, to restrict these "social scientists" in their interferences with the natural state of things. Herbert Spencer, in his usual precise manner, put his finger on the difficult problems that face our elective representatives when it comes to exercising "legislative judgment":

"The decision is one of those small holes through which a wide prospect may be seen, and a disheartening prospect it is. In a very simple case there is here displayed a scarcely credible inability to see how much effect will follow so much cause; and yet the business of the assembly exhibiting this inability is that of dealing with causes and effects of an extremely involved kind. All the processes going on in society arise from the concurrences and conflicts of human actions, which are determined in their nature and amounts by the human constitution as it now is - are as much results of natural causation as any other results, and equally imply definite quantitative relations between causes and effects. Every legislative act presupposes a diagnosis and a prognosis; both of them involving estimations of social forces and the work done by them. Before it can be remedied, an evil must be traced to its source in the motives and ideas of men as they are, living under the social conditions which exist - a problem requiring that the actions tending toward the result shall be identified, and that there shall be something like a true idea of the quantities of their effects as well as the qualities. A further estimation has then to be made of the kinds of degrees of influence that will be exerted by the additional factors which the proposed law will set in motion: what will be the resultants produced by the new forces co-operating with pre-existing forces - a problem still more complicated than the other.
We are quite prepared to hear the unhesitating reply, that men incapable of forming an approximately true judgement on a matter of simple physical causation may yet be very good law-makers. So obvious will this be thought by most, that a tacit implication to the contrary will seem to them absurd; and that it will seem to them absurd is one of the many indications of the profound ignorance that prevails. It is true that mere empirical generalizations which men draw from their dealings with their fellows suffice to give them some ideas of the proximate effects which new enactments will work; and, seeing these, they think they see as far as needful. Discipline in physical science, however, would help to show them the utter inadequacy of calculating consequences based on simple data. And if there needs proof that calculations of consequences so based are in adequate, we have it in the enormous labor annually entailed on the Legislature in trying to undo the mischiefs it has previously done."16

What the vote seeking politicians, and the social engineers from whom they take their advise, fail to understand, seemingly, is that there is a difference between that which is imaginable, and that which is probable. Nonetheless, on account of the seductive lure of socialism, philanthropic laws (general welfare by general plunder) do exist; but one cannot, at the same time, have philanthropic laws and just laws; one cannot, at the same time, be both a slave and a free man.

Passing laws in areas where laws should not be passed, considering the fundamental reason for the existence of laws, is a perversion. It brings on: first, disregard; then, contempt; and then, social disorder. At all points "it gives an exaggerated importance to political passions and conflicts, and to politics in general." (Bastiat.)

[TOC]
8 - Legislation, The Suppressor of Truth:-

Let us suppose I have yet to convince you; and, you continue to be of the view that legislation can help us and make us, on the whole, better off. Let as further suppose that we have the scientific and technical know-how to put the whole thing together: then -- is there still some problem? And, the answer is, yes -- a very serious problem.

Legislation, by definition, is designed to throttle individual initiative and freedom. Wherever an individual suffers from a curtailment of his or her freedom, the untold suffering often will extend throughout the larger community in ways we are never quite able to comprehend. As science shows, it is the diversity of things, in the larger cosmos, which has led to the universe which we now comprehend; it is diversity in life which has brought to the universe the means by which it might comprehend itself, at its current level; it is the diversity in nature through which the human species evolved; it is diversity which maintains the species; and it is to diversity we must look if we think there is some improvement to be made. When a group of persons excessively denies diversity, that is to say denies freedom to the groups it wishes to suppress, then, in denying diversity, they deny the emergence of truth.

"Whereas scientific and technological results are always due to relatively small minorities or particular individuals, often, if not always, in opposition to ignorant or indifferent majorities, legislation, especially today, always reflects the will of a contingent majority within a committee of legislators who are not necessarily more learned or enlightened than the dissenters. Where authorities and majorities prevail, as in legislation, individuals must yield, regardless of whether they are right or wrong."17

Common law, as we have seen, is law created and administered by the people: legislation is law created by the "majority" (read those in power) on the advice of "experts" at the expense of the "minority" (those out of power; or, those, for the time being, who do not care). Legislated law is like the old law of kings, the result of the sovereign 'majority' imposed upon the 'minority'; it inherently offends the rule of law.

"The rule of law has a number of different meanings and corollaries. Its primary meaning is that everything must be done according to law. Applied to the powers of government, this requires that every government authority which does some act which would otherwise be a wrong (such as taking a man's land), or which infringes a man's liberty (as by refusing him planning permission), must be able to justify its action as authorized by law -- and in nearly every case this will mean authorized by Act of Parliament. ... But the rule of law demands something more, since otherwise it would be satisfied by giving the government unrestricted discretionary powers, so that everything that they did was within the law. ... The secondary meaning of the rule of law, therefore, is that governments should be conducted within a framework of recognized rules and principles which restrict discretionary power. ... Thus the Home Secretary has a nominally unlimited power to revoke any television licence and a local planning authority may make planning permission subject to such conditions as it thinks fit, but the courts will not allow these powers to be used in ways which Parliament is not thought to have intended. ... Faced with the fact that Parliament freely confers discretionary powers with little regard to the dangers of abuse, the courts must attempt to strike a balance between the needs of fair and efficient administration and the need to protect the citizen against arbitrary government. ...
What the rule of law demands is not that wide discretionary power should be eliminated, but that the law should be able to control its exercise. ... The first requirement is the recognition that all power has legal limits. The next requirement, no less vital, is that the courts should draw those limits in a way which strikes the most suitable balance between executive efficiency and legal protection of the citizen. Parliament constantly confers upon public authorities powers which on their face might seem absolute and arbitrary. But arbitrary power and unfettered discretion are what the courts refuse to countenance. They have woven a network of restrictive principles which require statutory powers to be exercised reasonably and in good faith, for proper purposes only, and in accordance with the spirit as well as the letter of the empowering Act. They have also, as explained elsewhere, imposed stringent procedural requirements."19

"The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith, nevertheless the decision will be set aside. ..."20

".. when the law, by means of its necessary agent, force, imposes upon men a regulation of labor, a method or a subject of education, a religious faith or creed - then the law is no longer negative; it acts positively upon people. It substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives. When this happens, the people no longer need to discuss, to compare, to plan ahead; [it being intended that] the law does all this for them. Intelligence becomes a useless prop for the people; they cease to be men; they lose their personality, their liberty, their property." (Frédéric Bastiat, 1850.)

"The common will, conceived as the will common to each and every member of a society, is much more easily ascertainable, as far as its content is concerned, in the 'negative' way already evidenced by the Confucian principle than in any other 'positive' way. Nobody would contest the fact that an inquiry among any group whatsoever conducted with the object of ascertaining what its members do not want to suffer as a result of the direct action of other people on them would give clearer and more precise results than any inquiry relating to their wishes in other respects. Indeed, the celebrated rule of 'self-protection' propounded by John Stuart Mill not only can be reduced to the Confucian principle but becomes actually applicable only if so reduced, for nobody could effectively decide what is and what is not harmful to any particular individual in a given society without relying in the end upon the judgment of each member of that society. It is for all of them to define what is harmful, and this is, in fact, what any one of them would not want others to do to him."21

[TOC]
11 - Legislation & Morals:-

"Shame ... not fear, is the sheet-anchor of the law." (William Hazlitt.)

There are those, Spooner having been among them, who believe that peace is an indispensable condition to a satisfactory life; this notion, they believe, and the obedience to it is the only universal obligation: everything else is a matter of personal choice. The canon by which these people live is to proceed at all times honestly; to hurt no one; and to give to everyone his or her due.

"Man, no doubt, owes many other moral duties to his fellow men; such as to feed the hungry, clothe the naked, shelter the homeless, care for the sick, protect the defenceless, assist the weak, and enlighten the ignorant. But these are simply moral duties, of which each man must be his own judge, in each particular case, as to whether, and how, and how far, he can, or will, perform them. But of his legal duty - that is, of his duty to live honestly towards his fellow men - his fellow men not only may judge, but, for their own protection, must judge."23

We need to look at the obverse of the proposition that legislation is needed because of the lack of morals, viz. that legislation is not generally needed on account of morals which naturally exist amongst the population. This is hardly a new thought. In international law we have the salutary but sanctionless code called the Comity of nations. The OEDII defines comity: "courtesy, civility, urbanity; kindly and considerate behaviour towards others." Things generally do run, and will run very well, all things considered, simply due to the courteous and friendly understanding by which each of us proceeds to deal with his fellows. Persons, on the whole, proceed in a friendly way; because, on average, better results are obtained. The primary moral tenent is to treat another as the treater would like to be treated.25 Therefore, it is necessary for us to keep reminding ourselves, in respect to the various proceedings and usages in life, that each of us must proceed with the principal objective in life -- the same for all of us, viz. to preserve our own rights and interests. This objective is best met by giving respect to others, in the same level and manner as the giver expects to receive in return.

[TOC]
Conclusions:-

Our legislatures have turned into mills, grinding out useless laws in most all areas. At all points, legislation gives an exaggerated importance to political passions and conflicts, and to politics in general. Certain kinds of legislation, inarguably, make things only more difficult for the very people we would like to help. This should be obvious to the average observer. But, what is not so obvious, are the problems brought on by such legislation which lie out of sight; and, when, finally felt by the general population, cannot be cured without a heavy dose of time and pain. The underlying problems, are these: that passing laws in areas where laws should not be passed will first bring disregard; and, then, will come contempt for the law followed by social disorder. This process of disregard and contempt, while brought on by bad law, will take its toll on all laws, some of which are very important to the continued functioning of society.

The primitive individualism as described by Thomas Hobbes is a myth. The savage is not solitary, and his instinct is collectivist. The rules of human conduct gradually evolved (particularly the rules governing the possession and exchange of property, viz. contract law). These rules were handed down by tradition, teaching and imitation, and consisted largely of prohibitions, that is to say law evolved to be restrictive in nature.

In my conclusion, I cannot but help quote Professor Bruno Leoni, yet once again (his work, Freedom and the Law, has proven to be such an inspiration):

"Substituting legislation for the spontaneous application of nonlegislated rules of behaviour is indefensible unless it is proved that the latter are uncertain or insufficient or that they generate some evil that legislation could avoid while maintaining the advantages of the previous system. This preliminary assessment is simply unthought of by contemporary legislators. On the contrary, they seem to think that legislation is always good in itself and that the burden of the proof is upon the people who do not agree. ...
These people pretend to champion democracy. But we ought always to remember that whenever majority rule is unnecessarily substituted for individual choice, democracy is in conflict with individual freedom. It is this particular kind of democracy that ought to be kept to a minimum in order to preserve a maximum of democracy compatible with individual freedom. ...
... legislation, especially if applied to the innumerable choices that individuals make in their daily life, appears to be something absolutely exceptional and even contrary to the rest of what takes place in human society. The most striking contrast between legislation and other processes of human activity emerges whenever we compare the former with the proceedings of science. I would even say that this is one of the greatest paradoxes of contemporary civilization: it has developed scientific methods to such an astonishing degree while at the same time extending, adding, and fostering such antithetic procedures as those of decision groups and majority rule."26

_______________________________

A featured essay in a book

NOW AVAILABLE

Essays: Law & Politics

_______________________________

Found this material Helpful?

_______________________________

Bentham:-
§ "Every law is an infraction of liberty."

Dicey:-
§ "The benificial effects of state intervention, especially in the form of legislation, are direct, immediate, and so to speak, visible, whilst its evil effects are gradual, indirect and lie out of sight ..."

Halifax:-
§ "Desiring to have anything mended is venturing to have it spoiled; To know when to let things alone, is a high pitch of good Sense ..."28

Johnson:-
§ "How small, of all that human hearts endure,

That part which laws or kings can cause or cure!

Still to ourselves in every place consigned

Our own felicity we make or find ..."29

Montaigne:-
§ "Useless laws weaken the necessary laws. ... The most desirable laws are those that are rarest, simplest, and most general ..."

Reed:-
§ "One of the greatest delusions in the world is the hope that the evils in this world are to be cured by legislation." (Thomas Brackett Reed, Speaker of the House, State of Maine, 1886.)

Sydney Smith:-
§ "When law is considered as immutable, and the immutable law happens at the same time to be too foolish and mischievous to be endured, instead of being repealed, it is clandestinely evaded, or openly violated; and thus the authority of all law is weakened."

Spinoza:-
§ "He who tries to determine everything by law will foment crime rather than lesson it."

[TOC]
Notes:

1 Peter Landry is a lawyer in private practice in the City of Dartmouth. He invites correspondence on the topic and may be contacted at P.O. Box 1200, Dartmouth, Nova Scotia, B2Y 4B8, or at peteblu@blupete.com.

2 OEDII.

3 Seven Theories of Human Nature (Oxford University Press, 1987).

4 Malthus laid down four rules. These rules, incidentally, may be broadly applied to any course of action. Terms, Malthus points out, must be carefully defined before their use. An agreement must be worked out on the meaning of the terms used and it should, as closely as possible, correspond with the sense understood in the ordinary use of them. Secondly, where no agreement on meaning can be reached, in order to continue the discussion, the meaning to be taken is that which "the most celebrated writers" have accepted and used; though, the parties should not "be bound down by past authority" and a change might be introduced "whenever it can be clearly made out that a change would be beneficial, and decidedly contribute to the advancement of the science." However, Malthus cautions: "if we determine to have a new one in every case where the old one is not quite complete, the chances are, that we shall subject the science to all the very serious disadvantages of a frequent change of terms, without finally accomplishing our object." Thirdly, the project [legislation] proposed should not only remove the immediate objections [the social evils to be got at] but should be shown to be free from other or greater objections, though a "change which is always itself an evil, can alone be warranted by superior utility taken in the most enlarged sense." Fourthly, "any new definitions adopted should be consistent with those which are allowed to remain ..." Of course, as Malthus points out, in the application of the rules, we must always keep in view the object under consideration. See Definitions in Political Economy, p. 4.

5 The socialist movement was driven, in England, in the 1930s, by the Fabian writings of the "Bloomsbury Group" which centered around Cambridge and included such literary lights as Malcolm Muggeridge, Beatrice and Sidney Webb, Geo. Bernard Shaw, H. G. Wells, Virginia Woolf, and, of course, John Maynard Keynes. I cannot help myself: I editorialize: Socialists always proceed on this triple hypothesis: the total inertness of mankind, the omnipotence of the law, and the infallibility of the legislature. There is, I surmise, a disproportionate number of "educated" people who are socialists, people who may or may not have drunk deep enough from the Pierian spring; but which, at any rate, certainly have their heads down feeding in the socialistic troughs, which government fills with our money. The light of their grand objectives blinds them, as well as us. "Socialists (of varying kinds) believe in socialism (of varying kinds); they are generally unapologetic; they are industrious writers, lecturers, persuaders, activists, organizers and conference-goers, movers of motions and dealers in doctrines." (Seldon, Capitalism, p. 212.) For further views on socialism, see Blue Pete's essay, "The Siren's Song."

6 No matter which legislative scheme you might want to examine, I submit, on the whole, we are no better off; most of our social ills continue, and new ones have arrived which are of a much more virulent kind. And through it all our liberties have suffered with burgeoned bureaucracies and our economy (a fixed system by which the life blood of society flows) has been deaden by huge and unmanageable government debt.

7 A Lysander Spooner Reader (San Francisco: Fox & Wilkes, 1992) at p. 20.

8 Lysander Spooner, ibid, pp. 19-20.

9 Freedom and the Law, p. 8 & p. 15.

10 Judges and legislators are very touchy about the expression "judge made law"; it is against Montesquiarian doctrine for judges to make laws. Judges cut and skin the law here and there, but they no more make laws than lumbermen make logs. Though a judge on occasion may cross the line, a vigorous lawyer and an appeal court will soon cure it. The standard psychological attitude for a judge is to "discover" the law, not to "create" it.

11 The English Constitution at p. 143.

12 Leoni, op. cit., p. 121.

13 Ibid, p. 13.

14

15 Leoni, op. cit., p. 22.

16 Attributed to Spencer's essay, "The Collective Wisdom."

17 Leoni, op. cit., p. 8.

18

19 Sir William Wade, Administrative Law (Oxford University Press, 6th ed., 1988).

20 This principle was established in Padfield v. Minister of Agriculture, [1968] A.C. 997, one which Lord Denning thought was a landmark in modern administrative law. (Breen v. Amalgamated, [1971] 2 Q.B. 175.)

21 Op. cit., p. 16.

22 "If every person has the right to defend - even by force - his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. This principle of collective right - its reason for existing, its lawfulness - is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force - for the same reason - cannot lawfully be used to destroy the person, liberty, or property of individuals or groups." (Bastiat, The Law, 1850.) (For further on this point see my essay, "On Government.")

23 Lysander Spooner, op. cit., p. 10.

24 Leoni, op. cit., p. 18.

25 A moral belief is held (tenent) because it has been found, through experience -- whether people are particularly conscious of the process, or not -- it works. When the practice dictated by the moral belief starts to not bring the expected and desired results, then, in a relatively short period, the moral belief turns into a pure superstition and the practice changes.

26 Leoni, op. cit., p. 14, p. 131 & pp. 147-8.

27 Hood Phillips, Shakespeare and the Lawyers (London: Methuen & CO., 1972) at p. 60.

28 George Savile (1633-95), 1st Marquis of Halifax.

29 Taken from Goldsmith's "The Traveller" (said to have been composed by Dr. Johnson).