Conclusions, Part 12 to blupete's Essay
"Legislation: Robbers' Rules"
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. ...I now leave off, with an indirect reference to Shakespeare who set forth a compendium of the law in his works. If the law appeals to one as a study, its not likely because of the characters that flood the history of law, as interesting as they may be; but, rather, because its appeal, like that of all art, "lies in the variety of its inherent antitheses -- the opposition of Is and Ought, of positive and natural law, legitimate and revolutionary law, freedom and order, justice and equity, law and mercy."24
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."23
[Essays, First Series]
[Essays, Second Series]
[Essays, Third Series]
[Essays, Fourth Series]