True Law Is Never "Made"; It Is "Found": Take #2

Let us take another look at Adam Smith's "Three Duties of the Sovereign," which I had quoted yesterday:

According to the system of natural liberty, the sovereign has only three duties to attend to; three duties of great importance, indeed, but plain and intelligible to common understandings:

first, the duty of protecting the society from violence and invasion of other independent societies; 

secondly, the duty of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it, or the duty of establishing an exact administration of justice;

and, thirdly, the duty of erecting and maintaining certain public works and certain public institutions which it can never be for the interest of any individual, or small number of individuals, to erect and maintain; because the profit could never repay the expense to any individual or small number of individuals, though it may frequently do much more than repay it to a great society.

Today, I would like to focus on the second duty - which is "establishing an exact administration of justice."


Note that Adam Smith never says that the sovereign must "make law." Not at all. No one makes law in the "system of natural liberty." What happens is that if there is a dispute, both parties hire their own lawyers, who scour through the books for past decisions in similar cases, based on which they put forward their arguments before an impartial judge. This is how the law is "found." It is never "made."


This true Law upon which a Private Law Society is based consists of Property, Contract and Torts - and nothing else. There is NO LEGISLATION. Thus, there is NO COERCION. And we are all FULLY SECURE. And also FULLY FREE.


Actually, Adam Smith, when he wrote The Wealth of Nations (1776) promised his readers that he would write a subsequent treatise on government - but this promise he never fulfilled. In fact, he burnt all his unpublished manuscripts shortly before his untimely death. As far as his Lectures on Jurisprudence are concerned, these were re-created from lecture notes of two students who attended them. But in Adam Smith's time, it was UNTHINKABLE that Parliament would pass legislation after legislation masquerading as True Law. In England, to this day, the Sovereign does NOT make law. Parliamentary sovereignty has meant that Parliament today possesses more powers and takes away more Liberty than any sovereign has ever done in the past.


As Property and Contract have been covered often on this blog, today I thought I would talk about Torts. These occur when any Individual (or his property) is harmed - even unintentionally. In all such cases, this Individual must be financially compensated for the damages he has suffered.


I have an old article on Torts, which you can read here.


Today, I would like to add that with Torts, our society can solve the problem that is the Indian Police. If all crimes are "crimes against individuals" and if in all such cases the convicted criminal must financially compensate his victim, jails and police are no longer required. The victim can prosecute his own case. 


The Indian Police are indeed a problem waiting to be solved. They do nothing right - not even traffic. Open-and-shut cases like the murder of Jessica Lal do not get solved. All the police do is VVIP security - and "law & order" bandobast for the political parties. As far as the "common man" is concerned, the police are also seen as totally corrupt - and even brutal.


Indians need security - but they cannot get this security from the Indian Police, not even on the roads. In fact, there isn't a functioning zebra crossing anywhere in India - not even in Nude Elly.


Thus, Torts are what we need. In a Private Law Society.


Finally, I would like to add my own experience with the Pondicherry Police. These guys have walked off with my books - some 20 of them, which were being safely stored for me by the Good Firemen. The Pondicherry Police approached the firemen saying I had asked for my books back (this was when I had been spirited away to NIMHANS, Bangalore). Unsuspecting, the firemen handed over the books. And, till date, the cops refuse to hand them back.


What kind of cops do we have?


And how will our people be secure?


These are very important questions.