Submitted by Free Radical
This is the most recent post in an ongoing series, most recently "The Metaphysics of Freedom"
The Natural Law of Civil Society
The best interpreter of the law is custom. – Marcus Tullius Cicero
Individuals do not always, if ever, exercise their freedoms so as to promote order in everyone’s lives. On the contrary, in seeking order in their own lives, individuals tend to impinge upon the lives of at least some others, if only because, in their efforts to cooper-ate with one party – i.e., to exchange one or another good or service to their mutual advantage – they inadvertently compete with another party, in which case one or the other must accordingly lose. But insofar as this process of exchange promotes the division of labor, resulting in the provision of a wider variety of goods and services that in turn improves individuals’ lot in life, the gains far exceed the losses. For how else could the human species have advanced at all, much less to a stage that was inconceivable little more than a century, or even mere decades, ago? How else could it have harnessed electricity, for example – or invented the locomotive, the telegraph, the telephone, the automobile, the airplane, the computer, the cell phone, email, the World Wide Web, etc. – if not but through this cooperative, if inevitably competitive, process?
When individuals eschew cooperation, however, and instead aggress against one an-other in order to improve their lot in life – i.e., when they initiate the use of force – then the social enterprise is thereby thwarted, prompting society to develop the means to minimize aggression, to adjudicate the disputes that arise as a result thereof, and to provide restitution for those aggressed against in such a way that society as a whole is preserved. Society develops a system of law, in other words, and traditionally this system has been known as customary or common law – i.e., law that is “developed through decisions of courts and similar tribunals … rather than through legislative statutes or executive action.” And of fundamental importance in the development of such law is that it is based on reciprocity:
Reciprocities are the basic source both of the recognition of duty to obey law and of law enforcement in a customary law system. That is, individuals must “ex-change” recognition of certain behavioral rules for their mutual benefit.
In noting that such exchange is fundamental to both money and law, it should be no surprise, then, that
… the origin, formation, and ultimate process of all social institutions … is essentially the same as the spontaneous order Adam Smith described for markets. Mar-kets coordinate interactions, as does customary law. Both develop as they do be-cause the actions they are intended to coordinate are performed more effectively under one system or process than another. The more effective institutional arrangement replaces the less effective one.
Like customary money, in other words, customary law evolves over time, as the members of society come to agreement through a process of trial and error to determine which laws best promote their mutual wellbeing. As such, legal reciprocity is part of a seamless process of cooperative interaction that is “marketable” precisely as monetary reciprocity is. For both are products of the aforementioned spontaneity – i.e., “the emergence of various kinds of social order from a combination of self-interested individuals” – that naturally arises from such reciprocation. Thus is law natural to man, and thus do customary money and customary law form the core of man’s morality, the social enter-prise unfolding through the application of this twofold ethic of reciprocity.
As the application can vary, however, from proper to perverse – i.e., from logical re-straint to pathological intervention – we examine the implications thereof in my next submission: “Positively Wrong: Positivism, That Is.”
i Bruce L. Benson, The Enterprise of Law, Pacific Research Institute for Public Policy, 1990, p. 12.
ii Ibid., p. 15.