From my latest essay.
The legal setting differs from the market setting in that the legal setting is an arena of conflict. If I need someone to fix my car, I enter the market arena. The mechanic and I agree on a price, and ordinarily both of us walk away happy: my car is fixed, and the mechanic has been paid. The transaction involves mutual satisfaction.
But suppose that my car is still not working properly when I go to the mechanic to pick it up. The mechanic claims to deserve to be paid, and I claim otherwise. Now we are in the arena of conflict. The legal system is there to provide a peaceful, fair way to resolve this conflict.
This means that a key virtue of a legal system is legitimacy. The legal system does not need to be perfect. What it needs is acceptance, so that a court ruling ends the conflict, peacefully. So you cannot prove that common law is superior to legislation, or conversely. You cannot know until you know which system has the most public acceptance.
“What it needs is acceptance, so that a court ruling ends the conflict, peacefully”
While true and needed, this is hugely inadequate. There must be enforcement of the ruling. “Laws”, like customs, which are not enforced, are hardly laws. Like Obaba illegal immigration not-quite laws.
And customs which are not law but ARE enforced, like no white folk using the racist “n-word”, or the finger giving anti-Trump bike rider recently fired for doing so, feel coerced to obey the custom.
Too little discussion is given to enforcement, where the legitimacy of the law is partly related to the amount of punishment for violating the law. Civil disobedience is dependent on the popular folk think that enforcement of some law or rule requires too much force – so much force that there is an injustice at the enforcement. And injustice is what most often “justifies” violence for “justice”.
Todd Zywicki:
http://www.libertylawsite.org/2014/07/17/when-friedrich-hayek-met-bruno-leoni/
Arnold Kling (from the cited essay):
“Still, I am skeptical that the legal system could operate effectively today without legislation and agency regulation. Society today is highly complex in terms of the types of interactions and the number of people involved in interactions. ”
Over something more than the past 500 years, a (if not-the) predominant function “our” legal systems has been the identification, delineation, reconciliation (including enforcement) of obligations recognized and accepted within the social orders extant over those periods of time.
That general statement must also take into account the “drift” away from that predominant function, including a shifting predominance of functions which has occurred in our own immediate society over the past century and certainly accelerated since my late (age 28) entry to the bar in 1952.
Plausible arguments can be made that the American legal system today is no longer predominantly a system for the determination of obligations (as had been the its long historical development); but now is rather predominantly regarded as a facility for the attainment of commercial, economic, social, ideological and political objectives. The great bulk of adjudications in the judicial portion of the system are concerned with Rules of Policy (Legislation, Regulations, Ordinances, etc. and the procedures for their implementations). Similarly, civil litigation is now principally concerned with the uses of Rules of Policy. The legal system has become another “means” for the attainment of economic, social, ideological, and political “ends.”
Law describes, defines, but does not necessarily delineate observed social order and the relationships within it.
Legislation differs from law, since legislation is only Rules of Policy.
Rules of Policy (legislation, regulations, ordinances and their excrescences) are attempts to describe, define and delineate desired social order and the relationships necessary for it.
Order generates Law. Law does not generate order. It does not delineate relationships. Law results from the identification, delineation, reconciliation (including enforcement) of obligations commonly recognized and accepted within the social orders extant and as they change over periods of time. Those actions may occur within or without an institutional framework. Those social orders which develop an institutional framework may be regarded as having some form of Rule of Law.
It should be noted that any particular social order may be extant, developing and changing within a larger social order – such as among thieves, there may be law.
Confusing Rules of Policy (legislation, etc.) with Law, creates great difficulties when the systems and institutional frameworks that determine Law are employed to give effect to Rules of Policy. This is undoubtedly due to the problems associated with the determinations necessary to delineate a commonly accepted desired social order and the relationships within it.
I agree with what I think Tom G is saying, but would put it slightly differently.
OP seems to be conflating two different things and calling them “acceptance”:
(1) Belief by an effective consensus of the public that the judicial system operates fairly and will usually rule in the way the parties deserve.
(2) Belief by an effective consensus of the public that whatever ruling the judicial system makes, the losing side will not be able to disobey them and get away with it.
(1) is certainly nice to have; it means most of the public are content with the system, making unrest unlikely. But to achieve the goal that OP has specified (that “a court ruling ends the conflict, peacefully”), (1) doesn’t really matter; (2) is both necessary and sufficient.
Arnold concludes with:
“This means that a key virtue of a legal system is legitimacy.”
That is similar to the view of Michael Oakeshott. See his “The Rule of Law” in “On History (and other essays)” [Blackwell 1983] (Liberty Fund 1999 – still in print), which emphasizes the issue of “authenticity.”