On A Private Law World

The news that parliament passed 8 bills in 17 minutes, without any debate – rather, amidst a din – should make us pause to reflect on the true meaning of the word “law.”

More specifically: How is good law made?

Is this “democratic” method of making law, which is cramming 500+ rowdies into a room and expecting good law to emerge as a result of their “proceedings,” the best method of making law – that which is binding on the whole community?

I would insist this is simply NOT the way to arrive at good law.

Good law is not collectivist. Good law is individualist. It is “found,” not “made.” It is found when two learned lawyers argue their client’s cases before an impartial judge, citing previous decisions in similar cases. The judge either goes by past decisions or sets a “precedent” – whereby the law takes one small step forward. This law-making process mirrors the market, where individuals enter into exchanges with other individuals.

Legislation is not law. If we want Liberty Under Law we must insist that legislation, or the “public law,” be restricted in its scope to the organs of the government. Legislation can control the police, the civilian administration, the tax bureaus etc. Legislation cannot be imposed on a free society.

So how does society derive its laws? Simple: We the people live under “private law,” which we make ourselves. Note that any contract signed by two people is “law” binding on them both – but it is private law. In the same vein, any injury is a tort, and compensation is paid to the victim without resort to the “criminal law” of The State. There are no “crimes against The State” in this private law world. All crimes are torts against individuals. Thus, my pet peeve, legislation criminalizing the cultivation, sale and use of ganja, would simply disappear from a private law world.

This is Liberty Under Law.

Indeed, this is the “Sovereignty of the Law” – because even a “sovereign” parliament cannot amend this law. The parliament is “under law.” The State is “bound by a law that it did not legislate.”

A Second Republic Awaits.