This is the the 4th in a series of post on the law over legislation claim, defined in the first post. The law over legislation claim appears in very political contexts, but is the expression of an anti-political perspective. Perhaps it could be said the law over legislation claim expresses the wish to find some non-political framing for politics, or some non political centre. Some way in which politics is grounded in the non-political. There are some laudable impulses behind this. There must be some limits to politics, in the senses both that there must be some limits to the powers of the political sovereign and some limits to seeing politics in every action and every choice. In particular, law provides some way in which actions of the political sovereign are checked and supervised, and some public criteria are established for assessing political actions. There cannot be any absolute framing or distancing of politics though. Law can only be relatively distinct, and must contain some legislative element. Law is only fully recognisable and applicable there there is legislation stemming from political institutions. Community standards of justice are too vague to be the basis of well defined law. There are forms of community justice standards which might be clear, but customary law is itself the product of politics and subject to political condition. It does not exist in complete isolation from the political world. Once law is defined and interpreted by judges it has definitely reached the thresh hold of political consciousness and becomes a matter of political debate which leads to legislation. The more law is institutionalised the more likely it is that it will become subject to legislation, and the more likely it is that legislation had a role in the development of that law. Medieval law becomes entrenched through what Foucault calls ‘juridification’, that is the spread of Roman or Civil law and juristic discussion of laws.
Though the idea of Law as opposed to Legislation is presented ad descriptive and historical, it is really hard to understand it in those terms. It really exist as something like a heuristic device, or what Max Weber called an ideal type, that is an ideal state of affairs which cannot be found in reality but may guide analysis or actions. ‘Ideal’ has two senses which are relevant here. Ideal as in an ideal goal of action, a moral or political goal; ideal as in a pure concept. It is not possible to view Law as just a value free ideal concept of analysis, particularly as the use of Law in this opposed to, and above, Legislation, particularly as those relying on the distinction are advocates of law. It is both action orienting ideal and object of nostalgia, the only paradise for the sane, the lost paradise (Samuel Beckett says something like this in his short book on Proust). That is rather one sided, the other more stimulating side is that Law serves a as means of critique of Legislation which does not match basic standards of justice, including cases in which extends the size of the state, and the scope of its activity, without genuine benefit to the general welfare. Notions of justice and notions of general welfare are not necessarily the same, but presumably everyone wants to try to alit them as far as possible. That critical aspect of Law could be just as well served by notions of Justice and to some degree the insistence on Law as the goal risks a distraction from the task of discussing justice, and related notions like welfare and liberty.
The idealisation of Law also risks confusing at least two different forms of Law. Law as customary Law, and Law as institutionalised Law according to proper procedures and traditions. These two can come into conflict. The most famous conflicts between customary law and institutionalised law in European history are around the movement from to customary rights of Medieval peasants to collective use of common land and forests for grazing and firewood to the strict application of individual property rights, reserving rights of usage to owners, as part of changes in farming and forestry. The most famous example within that process of late Medieval and Early Modern Europe is the enclosure of land in England, so that it could be used for sheep farming. This could also include removing peasants, their dwellings and entire land usage. Something like this carried on until the 19th century Scottish enclosures. No doubt judges at state law courts were disposed to see the law in the same way as big landowners, but I am not aware of much reason to think judges and juries (which have always given ordinary ‘freemen’, then citizens, a say in English law courts) completely ignored the law as it existed. Courts operating in ways sanctioned over time, with judges following correct procedures, did away with customary law below the horizon of institutional law. Another way of thinking about this is that marriage and divorce were to some degree self-regulating for lower class rural people until 19th century England. This gains famous literary expression in Thomas Hardy’s novel The Mayor of Casterbridge, in which Thomas Henchard sells his wife at the beginning of the novel before becoming mayor. According to ‘Wife Sales’ by Leeson, Boettke and Lemke this was a recognised procedure for ending a marriage, usually with a lover or admirer of the wife ready to ‘buy’ her, and was considered binding by all involved, though it certainly had no force in statute law, in institutionalised law that is. These are not the kinds of example the advocates of Law over Legislation were interested in, though the paper just cited certainly reflects the influence of Friedrich Hayek, one of the two main advocates of the Law over Legislation claim. There is a tension between Hayek’s celebration of Law which is essentially as a unitary body well above the horizon of perception for the state, and his economic epistemology which refers to the dispersal of value and knowledge between individuals, and which is more suggestive of an informal institutional approach to non-state law.