Today’s method of allocating scarce parking spaces and the Law Merchant are just two of many examples of law that is created spontaneously and isn’t necessarily written in statute books. Law is not always legislated, but it is generally obeyed.
Of course, in addition to obeying the many laws that are not consciously designed we obey also many rules that are consciously designed. Rules consciously designed by government are “legislation.” We obey legislation, though, only because government will fine, imprison, or execute us if we do not obey. And while we might respect the authority of government, we respect and obey legislation only because it is created and enforced by government. Unlike law, the actions declared wrong by legislation are wrong only because government prohibits them. These wrongs are malum prohibitum —wrong only because government says they are wrong.
Importantly, however, the mere enactment of a piece of legislation doesn’t necessarily give the legislature’s intention the force of law. While legal rules need not be created by a sovereign authority and written in a statute book to operate as genuine law, it is also the case that rules written in a statute book (“legislation”) are not necessarily binding.
For example, according to the written criminal code of the State of Massachusetts, it is a criminal offense for two unmarried adults to have consensual sex with each other. Yet despite the fact that this prohibition against consensual pre- and extra-marital sex was duly enacted by the Massachusetts legislature and is clearly written in that state’s legislative code, consensual pre- and extra-marital sex among adults in Massachusetts is in fact not unlawful. No police officer in that state would arrest violators of this legislation. No judge or jury there would convict even those who confess to committing this “crime.” And if by chance some completely out-of-touch police officer or court today would attempt to punish a couple for this “crime,” the public outrage would be so great that that attempt would fail. Indeed, in such a case the public would regard the police officer and the court—not the couple—as having broken the law.
The importance of recognizing the distinction between law and legislation goes well beyond semantics. Its importance is twofold.
First, awareness of this distinction enables us to better see that socially beneficial rules of behaviour often emerge and are enforced independently of the state. It is a myth to believe that law is necessarily a product of conscious design by holders of sovereign authority.
Second, regardless of the merits or demerits of government’s expansive use of legislation, the respect that we naturally feel for law should not unquestionably be extended to legislation. A corrupt or unwise government will legislate in many ways that are socially destructive. We should not confuse such government commands with law—or accord respect to legislation simply because it is commonly called “law.”