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Legislation is distinct from law Chapter 5

Legislation, the deliberate making of law, has justly been described as among all inventions of man the one fraught with the gravest consequences, more far-reaching in its effects even than fire and gun-powder. Unlike law itself, which has never been ‘invented’ in the same sense, the invention of legislation came relatively late in the history of mankind. It gave into the hands of men an instrument of great power which they needed to achieve some good, but which they have not yet learned so to control that it may not produce great evil.

Friedrich Hayek (1973). Law, Legislation, and Liberty, 1
(University of Chicago Press): 72.

The single most profound advance in our understanding of society was made in the eighteenth century by a remarkable group of Scottish philosophers, foremost of whom were David Hume and Adam Smith. These Scots explained that (to quote another Scot of that age, Adam Ferguson) “nations stumble upon establishments, which are indeed the result of human action but not the result of human design.”

A good example is language. No one invented language. No person or council designed it. Each language evolved over the generations into the particular “shape”—vocabulary, grammar, syntax—that it has today. No genius or committee of the best and the brightest linguists invented, for example, the word “chair” to mean in English an object in which humans sit. No language designer decreed the word “merci” to convey the meaning that French speakers understand whenever they hear or say that word. Word meanings evolved over time through repeated use and experience. Likewise for each language’s grammar and syntax.

Languages are unquestionably the result of human action—in this case our and our ancestors’ countless individual efforts in particular circumstances to convey meaning to others. (“Watch out for that falling rock!” “I love you.” “Take that hammer to your father.”) But none of the thousands of natural languages that have existed in history is the result of human design. None of these languages—not English, not French, not Urdu, not Chinese, not one—was invented. And yet each language is a remarkably useful tool for people who speak it to communicate in complex ways with each other.

Of course, once a language becomes established it is common for lexicographers to codify that language in dictionaries, thesauruses, and books of grammar. Samuel Johnson’s eighteenth-century A Dictionary of the English Language is an example of a famous codification of the English language. Such codifications, however, do not create any language. Samuel Johnson did not create English; he merely recorded it as he found it in its evolved state in the mid-1700s. If Dr. Johnson had written in his dictionary that the word “chair” means “to kill in cold blood,” people would not suddenly have started using “chair” as a synonym for “murder.” Instead, people would have simply regarded Dr. Johnson’s dictionary to be untrustworthy.

What is true of language is also true of law. The great bulk of law that governs human interactions was not invented and designed by some great Law Giver. Instead, law emerged without centralized design. Law evolved.

The law against murder, for example, is not the product of human intention or design. There was never a tribe or society in which the intentional taking of the lives of peaceful members of that tribe or society was acceptable and became unacceptable only when and because some elders, a wise leader, or a popularly elected assembly pronounced such killing to be wrong. Such killing is, to use a phrase from Anglo-American law, malum in se‐it is wrong in itself. People do not tolerate murder in their midst; in some form or fashion they take steps to prevent murder and to punish—usually very harshly—those who commit it. Such steps are taken even when there is no formal government to lead such efforts. The same is true for theft, fraud, arson, and many other violent and aggressive acts initiated against the persons and property at least of the people regarded to be citizens of the group.

Some of these laws might be rooted in humans’ genetic make-up. (Parents naturally will go to enormous lengths to protect the lives of their children and to ensure that their children’s killers are punished appropriately. Similar, if less intense, sentiments are naturally felt for other family members and friends.) Other laws might be based more on mere social and religious conventions—such as the law that women in western societies, unlike in some African tribal societies, never appear topless in public or that women in many societies must never appear in public with their hair uncovered.

What matters here is that every day we obey a vast set of rules that are not consciously designed.

Consider how parking spaces in shopping malls are allocated on busy shopping days. Suppose that you and several other drivers are cruising around a crowded parking lot, each in search of a parking space. You eventually spot a car just beginning to pull out of a space. You will likely stop a few feet behind that parking space and turn on your car’s blinker in its direction. When another driver, also looking for a parking space, sees your stopped car with its blinker on, that other driver immediately knows that you are claiming that about-to-be-abandoned space. That other driver, although disappointed that she missed out on the space, will nevertheless drive past you to continue looking for a space; that other driver leaves the space for you to occupy.

Legislation is distinct from law