The Kuyperian Commentary

Politics, Economics, Culture, and Theology with a Biblical Viewpoint

How To Fast-Track To Anarchy: Establish A Legislature

law_booksPeople often think of anarchy as being in some sort of proximity to freedom. But freedom is about self-determination, and the “self” is always in an environment. A world in which nothing can be predicted or trusted is a world in which decisions are meaningless. You can’t be self-determining in a situation that forbids you from making determinations or meaningful commitments.

A concrete example: You are not free to become a married person if the legislature has decided that marriage commitments are not enforceable. No Fault Divorce comes from a committee who justifies its existence by creating new laws every year. Naturally, such a center of power attract lobbyists and reformers to try to bend society to their will.

What is odd, is that most people, even Christians, consider the law to be a synonym for legislation. I submit that is like forming a government committee to make enforceable rules of language and grammar and allowing everyone one to forget where language has come from so that they equate language and grammar with the pronouncements of this committee.

In his helpful book, Freedom and the Law, Bruno Leoni notes that societies have understood law to originate outside of legislation. The Romans knew that they were different from the Greeks, for example. Thus:

[A]ccording to Cicero, Cato the Censor, the champion of the traditional Roman way of life against the foreign (that is, Greek) importation, used to say that the reason why our political system was superior to those of all other countries was this: the political systems of other countries had been created by introducing laws and institutions according to the personal advice of particular individuals like Minos in Crete and Lycurgus in Sparta, while at Athens, where the political system had been changed several times, there were many such persons, like Theseus, Draco, Solon, Cleisthenes, and several others. . . . Our state, on the contrary, is not due to the personal creation of one man, but of very many; it has not been founded during the lifetime of any particular individual, but through a series of centuries and generations. For he said that there never was in the world a man so clever as to foresee everything and that even if we could concentrate all brains into the head of one man, it would be impossible for him to provide for everything at one time without having the experience that comes from practice through a long period of history.

By contrasting individuals to the “many” that formed Roman laws and institutions, Cato did not mean a groups of men voting on laws in contrast to a dictator writing them down. He plainly means many contributed to the present over the past centuries and millennia.

Roman law, like the common law in England, for the most part developed through court cases. Only this really gives us the freedom that comes from the rule of law. Bruno Leoni again:

It is interesting to point out that when contemporary economists like Ludwig von Mises criticize central economic planning because it is impossible for the authorities to make any calculation regarding the real needs and the real potentialities of the citizens, they take a position that reminds us of that of the ancient Roman statesman. The fact that the central authorities in a totalitarian economy lack any knowledge of market prices in making their economic plans is only a corollary of the fact that central authorities always lack a sufficient knowledge of the infinite number of elements and factors that contribute to the social intercourse of individuals at any time and at any level. The authorities can never be certain that what they do is actually what people would like them to do, just as people can never be certain that what they want to do will not be interfered with by the authorities if the latter are to direct the whole law-making process of the country.

Even those economists who have most brilliantly defended the free market against the interference of the authorities have usually neglected the parallel consideration that no free market is really compatible with a law-making process centralized by the authorities. This leads some of these economists to accept an idea of the certainty of the law, that is, of precisely worded rules such as those of written law, which is compatible neither with that of a free market nor, in the last analysis, with that of freedom understood as the absence of constraint exercised by other people, including the authorities, over the private life and business of each individual.

It may seem immaterial to some supporters of the free market whether rules are laid down by legislative assemblies or by judges, and one may even support the free market and feel inclined to think that rules laid down by legislative bodies are preferable to the rationes decidendi rather unprecisely elaborated by a long series of judges. But if one seeks historical confirmation of the strict connection between the free market and the free law-making process, it is sufficient to consider that the free market was at its height in the English-speaking countries when the common law was practically the only law of the land relating to private life and business. On the other hand, such phenomena as the present acts of governmental interference with the market are always connected with an increase in statutory law and with what has been called in England the “officialization” of judiciary powers, as contemporary history proves beyond doubt.

Western governments have made “democracy” a mantra and included the idea that a committee meeting annually for no other purpose but to make new laws is a mark of freedom and civilization–a committee formed by members who win popularity contests. How can a cornucopia of new laws every year, year by year, over the decades and the centuries, possibly do anything but create chaos? As society becomes more dependent on these interventions, legislatures eventually make laws that are actually delegations to new law-making bodies that are given even more power.

Laws multiply; laws conflict with one another; laws are made to deal with the unintended consequences of other laws.

Legislatures make anarchy.

Thinking about this will lead us to realize that the Bible presents us with some real wisdom about society. While it shows us good kings and judges and elders, it never shows us legislatures. God gave Israel a law code that was not completely comprehensive (nothing is said about water rights, for example). It plainly was meant to be applied. But there were no authoritative legislatures. Pointing to sitting elders doesn’t argue for the opposite. Those elders were judges deciding difficult cases that came before them; not legislatures creating written laws to be enacted until new ones replaced them. Through court cases wise judges set precedents and developed laws that met real societal needs. Like language develops between speakers, so law develops within and from a nation’s moral code.


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