In a podcast with Russ Roberts, Gillian Hadfield says,
it’s precisely the pressure and the creation of ambiguity in what the rules are, that we think generates the demand for, and then the production of, institutions that perform that role, where everybody knows, everybody knows, ‘That the institution.’ We can argue about it, but we’ve now we’ve now set up a country system. Or, we’ve designated a smart member of the community, whoever–an arbitrator–
She argues that laws serve to reduce ambiguity. I assume that she means written laws.
I am reading Bruno Leoni’s thoughts on law. He believed that common law is comparable to market activity. He believed that legislation is comparable to central planning, with all of its defects. Do we need legal central planning to reduce ambiguity?
Leoni argued that legal central planning, rather than reducing uncertainty, actually creates it, because legislation can suddenly change the rules.
I went through the whole transcript, and this was a real disappointing aberration in terms of the typical quality and “insight density” of Roberts’ interviews. For example, the government already outsources a lot of regulation and other determinations to private expert groups of professionals (indeed there have been a number of prominent lawsuits trying – and usually failing – to challenge this reality), and allows contracting parties to set private rules within a fairly wide space of possibilities to include clauses for binding, private arbitration.
It also just doesn’t make any sense to say that the government isn’t innovative enough about making new rules – if anything we are in almost a precisely opposite situation.
Fundamentally, she didn’t support her basic claim that existing systems are inadequate to deal with purportedly “new” circumstnaces, (Different laws across jurisdictions affecting commerce? Gee, since when? How in the world could anyone ever deal legally with that?) and she neither supported the claim that we have good reason to believe these hypothetical “new” alternative systems would perform in a superior manner.
Said like someone with no experience of the judicial system.
A few passages to bring this new thing, statute law, into context at least in common law countries. We have lost the differentiation between law and statute, and nowadays, regulation.
“How many of us have ever formulated in our minds what law means? I am inclined to think that the most would give a meaning that was never the meaning of the word law, at least until a very few years ago; that is, the meaning which alone is the subject of this book, statute law. The notion of law as a statute, a thing passed by a legislature, a thing enacted, made new by representative assembly, is perfectly modem, and yet it has so thoroughly taken possession of our minds, and particularly of the American mind (owing to the forty-eight legislatures that we have at work, besides the National Congress, every year, and to the fact that they try to do a great deal to deserve their pay in the way of enacting laws), that statutes have assumed in our minds the main bulk of the concept of law as we formulate it to ourselves. I guess that the ordinary newspaper reader, when he talks about ‘laws” or reads about “law,” thinks of statutes; but that is a perfectly modem concept; and the thing itself, even as we now understand it, is perfectly modem. There were no statutes within the present meaning of the word more than a very few centuries ago.”
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“Thus at first the American people got the notion of law-making; of the making of new law, by legislatures, frequently elected; and in that most radical period of all, from about 1830 to 1860, the time of “isms” and reforms — full of people who wanted to legislate and make the world good by law, with a chance to work in thirty different States — the result has been that the bulk of legislation in this country, in the first half of the last century, is probably one thousandfold the entire law-making of England for the five centuries preceding. And we have by no means got over it yet; probably the output of legislation in this country to-day is as great as it ever was. If any citizen thinks that anything is wrong, he, or she (as it is almost more likely to be), rushes to some legislature to get a new law passed. Absolutely different is this idea from the old English notion of law as something already existing. They have forgotten that completely, and have the modern American notion of law, as a ready-made thing, a thing made to-day to meet the emergency of to-morrow. ”
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This sentence, both in its structural complexity (readable.io grade 99) and content embraces the uncertainty created by statute law adoption:
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“But no one, I think, has ever called attention to the enormous differences in living, in business, in political temper between the days (which practically lasted until the last century) when a citizen, a merchant, an employer of labor, or a laboring man, still more a corporation or association and lastly, a man even in his most intimate relations, the husband and the father, well knew the law as familiar law, a law with which he had grown up, and to which he had adapted his life, his marriage, the education of his children, his business career and his entrance into public life — and these days of to-day, when all those doing business under a corporate firm primarily, but also those doing business at all; all owners of property, all employers of labor, all bankers or manufacturers or consumers; all citizens, in their gravest and their least actions, also must look into their newspapers every morning to make sure that the whole law of life has not been changed for them by a statute passed overnight; when not only no lawyer may maintain an office without the most recent day-by-day bulletins on legislation, but may not advise on the simplest proposition of marriage or divorce, of a wife’s share in a husband’s property, of her freedom of contract, without sending not only to his own State legislature, but for the most recent statute of any other State which may have a bearing on the situation.”
–Popular Law-making: A Study of the Origin, History, and Present Tendencies of Law-making by Statute, Frederic J. Stimson (1910)
I am with the Frederic J. Stimson quote. The attention span of the citizen is limited and we have flooded him with legislatures gone mad.
Then we have California Law, it does not exist, we are Franciscans and never developed or adopted the idea of English common law. In the California system, the legislature literally hands out licenses to sue, favoring the lawyers guild. We have no common law of our own, and because we pay many of the bills in DC, we are nearly exempt from Constitutional law.
Then we add the Sotomayor effect, the judicial theory of taking or leaving due process according to the judicial whim of the moment. This activity jams up the courts something fierce by leaving ambiguity around the subject of states rights, right of assembly and the rest.