Boudreaux On Decentralized Law

Don Boudreaux thinks the best laws are not made:

I agree that judges should not make law. I disagree that judges should defer meekly to legislatures. No one should ‘make’ law. As much as possible, law should be ‘made’ by a decentralized process of human interactions. From this decentralized process, law emerges organically. Judges should discover this law and apply it.

The best law is organic – it evolves undesigned from countless interactions of ordinary men and women going about the everyday business of life...

I will not here attempt to prove anything; I rest content to report my sense that virtually all worthwhile laws are of this nature. The proscription against murder, for instance, was not first thought up by some genius or council and then promulgated and enforced. It emerged ‘naturally’ in human social interactions. Likewise with laws against theft, fraud, and arson. Likewise with the bulk of the law of property, contract, and tort. Likewise with commercial law. Even traffic law is surprisingly organic.

Trouble arises when a centralized authority claims a monopoly of society’s law-making powers. Legislation and bureaucratic directives become confused with ‘law.’ The will of the sovereign becomes mistaken for the laws of society.


Correction: This post had previously erroneously cited Russell Roberts as the author of the above. It has been corrected.

Share this

This is why I don't see

This is why I don't see political logjams as necessarily a bad thing. If Congress is torn between legislating one way or another, maybe it shouldn't legislate at all. The big exception to this is when the legislation in question is the unwinding of harmful laws already on the books. Then, inaction is most frustrating.

Or as Mr. Justice Homes

Or as Mr. Justice Homes wrote in 1881 (as an intellectual descendant of Darwin):

“The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation.… In Massachusetts to-day, while, on the one hand, there are a great many rules which are quite sufficiently accounted for by their manifest good sense, on the other, there are some which can only be understood by reference to the infancy of procedure among German tribes, or to the social condition of Rome under the Decemvirs.”

R.J. O'Hara, But Holmes

R.J. O'Hara,

But Holmes wasn't arguing against legislation by a legislative body.

And of course for Holmes while he did believe in some areas - like speech - that the government should stay out (this had much to do with his "social Darwinist" tendencies - speech was an area where such "competition" rightfully took place), but in others (like economic legislation) that the government should be allowed to do what the majority wanted. He's a very problematic source in other words.