 Hello, this is Stefan Kinsella today as I record this is Monday December 17th 2012 This is should be the first in Entry in my podcast which I am starting soon called Kinsella on Liberty Libertarian Theory and Applications which can be found at Stefan Kinsella.com and this first entry will be a re-recording of a speech I delivered in September in though drum Turkey at the Property and Freedom Society 7th annual meeting I delivered a talk called the state's corruption of private law and Unfortunately, it was the one speech among every other one recorded professionally and in HD quality etc. In which the audio was messed up through an error So what I am doing is I have a slideshow presentation Which will be on the blog post accompanying this podcast and available on my website This will also be put on the property and freedom website, which is property and freedom org and I did not actually show the slideshow during my speech. I just used it for my notes. I prepared far too many notes for the talk on purpose 50 or 60 pages of notes and I ended up moving a lot of that to the end For just extraneous material, which is on the slideshow that which you can see accompanying this talk By the way, my new podcast will be covering just probably on a roughly weekly basis. They will sometimes include old recordings of mine which It put them in the podcast feed and also occasionally cover Various libertarian theory and application topics sometimes respond to Q&A sometimes I'll have an interview with Other libertarians or other people about various matters and put that in the feed So this is the first the kickoff podcast and I plan to re-record the whole thing now My original speech was around 25 minutes But I have a little bit more time here, so it may go a little bit longer make a little bit shorter So you can follow along with the slides. I'll try to mention the slide here and So let's let's get going shall we so it just as background. I'm on slide two now of my talk I have links here a lot of the background material for this talk is can be found in Some some papers I wrote starting in 1995 discussing the nature of legislation and law from a libertarian perspective and I did a condensed version for the Freeman which was reprinted with some slight modifications a year or so ago in on Mises Daily which I have the link for on here But this talk is not just a presentation of that earlier article, but it draws on a lot of the stuff in there Other useful material for some of the concepts I go into in this can be found in my paper What libertarianism is and also in chapter 2 and in other places scattered around hoppers Hunter-Midhoppers a theory of socialism and Capitalism now in my original presentation Which you can see a note at the end. I had a lot of material on distinguishing between different types of what we call law positive law economic law also discussing the difference between legal positivism and logical positivism Which I will not get into here today, but hope hope to someday in the future and I've written a little bit on it before and you can see in the notes at the end of the presentation Some links to blog posts etc that I've had on this in case you're interested in exploring them further But what I would like to start with as you can see on slide 3 is just talking about the the nature of illegality and different types of law the concept of law So let's just start with this idea We all would agree or we all understand that it is considered to be illegal illegal or against the law To say commit murder in a given jurisdiction Now this law is not completely universal because there are exceptions made for the state if a police officer or a soldier Kill someone who is an innocent victim Then that's not considered murder but as a general rule for under the private criminal law for Citizens It's considered to be illegal to commit certain acts like murder It's also considered to be against the law to sell alcoholic beverages in Houston, Texas For example where I live on a Sunday morning. These are called blue laws and apparently just recently The Czech Republic has Made it illegal to sell hard liquor. So there's partial prohibition being enacted there because of some recent Abuses of hard liquor now these laws are what we can call legal laws And most people when they talk about laws are talking about the law in society There's but the word law is more general than that. There's other types of law. There are moral laws Like things you shouldn't or should not do or should do There's a natural law And then there's causal law which is like physics for example like the law of gravity and there are economic laws Like the law of supply and demand so going to slide for I'm sorry. I think it's slide two. I may be messing up here It's the slide entitled scarcity in law Okay, I've got my slide numbering straight so on slide number four now entitled scarcity in law so Let's go back to the origins and the purpose of property rights We we live in a world of scarcity that is Things that can be used as means of action that are not in super abundance That means that there are things that we need in the world to achieve our ends That only one person can use at a time. Otherwise there's conflict over these things As Hoppa points out in a world of what we call super abundance or no scarcity. It's hard to imagine such a world, but imagine You know sort of some ghostly realm or a realm of magic where you can have as much of anything as you want at any time Just for the asking There would actually be no action possible. Now. Why is this because action is the Attempt to achieve something in the future that would not otherwise come about in other words You envision some future state of affairs That you don't like or that you think you can change. How do you change it? You change you by acting That's by employing means things that can causally interfere with the world to change the outcome of what's going to happen So basically in in our world We we always have the choice of acting we're faced with this choice of acting Because what's going to happen will happen unless we intervene to intervene means to take advantage of the way cause and effect work Okay, so without Without the universe being a universe of scarcity There would be no need to act. There'd be no possibility of acting even There'd be no need for learning or knowledge because learning and knowledge is what guides your choice of the means It's what guides your selection of the ends that you're choosing So there'd be no no no possibility of conflict and this is similar to the idea that in a world of perfect certainty There would be no need to learn There'd be no need for money and even this is a sort of built into the Rothbardian idea of the evenly rotating economy Idea in any case in a world of scarcity, which we live in we do need To learn and we understand causal laws that is we need to acquire knowledge Right, and we need to employ which means to exclusively use certain means of action That's scarce resources so that we can causally achieve our goals Okay, so we need to Acquire resources and we need to acquire knowledge to have successful action now This is true, you know, even in a crucial work crucial world Not just in a world of multiple human actors This is even true for someone on a desert island alone by themselves So this is a fundamental fact of human life that we do live in a world of scarcity Which makes human action both necessary and possible that is without scarcity human action would be inconceivable Because action necessarily employs scarce means in an attempt to change the outcome of things in a world of super abundance Basically a magical world human action would be inconceivable Which is one reason why Mises for example Almost implies that the idea of God is impossible or at least an acting God because an acting God is a contradiction in terms because he is omniscient and omnipotent and for him to act implies that he is changing what would happen and That he's dissatisfied right now with the current state of affairs or with what he predicts is going to come Which implies that he's not perfect because the universe is not Previously compliant with what he wanted etc. So Mises kind of hints at this incompatibility with the idea of omnipotence and omniscience and the idea of action in general In any case, so this is where Mises of praxeology comes into our analysis here Praxeology is Mises is study of the logic of human action. That is He recognizes that humans act Now what does it mean to act they choose some end that is some goal They want to achieve and then they use their knowledge of the causal laws of the universe to select some scarce means That they think can achieve their desired goal So in other words, you have some idea that's knowledge of what it's possible to change in the future Or what's coming and then what you don't like about it and what you would prefer and you have some knowledge of Ways that you can causally interfere to make a change So you have some knowledge of scientific laws physical laws of nature and of what things you can Appropriate use and select as means of action to achieve your end So that means that successful action requires two things knowledge knowledge of what of the causal laws of the universe That's the scientific of the natural sciences, right? and you also need the Availability and the control of Means and now these means are necessarily scarce means if they weren't scarce They wouldn't be means of action that would be the background conditions as Mises points out and Amines is something that's causally efficacious That is if you employ it in the right way, it actually helps you achieve Some change in the course of events that helps you achieve your goal. Okay, so what's important here won't slide five is Talking about scarcity and law is that if you think about the entire human endeavor, it's always human action and Human action always to be successful has to Have knowledge and Means these are two different things, but they're both required for successful action Because if you didn't have any knowledge, you wouldn't know what means to employ If you didn't have any means available, you wouldn't be able to no matter what you knew you wouldn't be able to Employ any means to change the course of events Okay now When there's more than one person in society Okay, that is we're going away from just the general fact of human action even in a Crusoe world where there's only one person When we have more than one person There arises another thing that's the possibility of conflict over the use of these scarce resources So remember scarce resources are things that serve as means of action and they're necessarily something that By their nature can only be used by one actor at a time Which means that these things are what we call rivalrous rivalry means a fight or a conflict So you can think of scarcity not as the lack of abundance or plentifulness, but you can think of scarcity as Rivalrousness or conflict ability that means anything that there can be conflict over by Two actors is a possible means of action and a possible object of property rights, which we'll get to and a possible act Object of law So when we when we have more than one person, there's there's a good thing about that, right? There's a possibility of cooperation society language learning Human interaction, etc. But there's also the possibility of conflict that is more than one person may want to use the same thing so for example if if there's a You know a stick that can be used as a club to hunt animals Only a can use it a and b can't use it at the same time And if a and b can't agree on whose club it is then a and b would have to fight over it and so they'd be employing violence and Being in a state of war with respect to each other instead of some at least one of them using the club peacefully and productively Without fighting with other human actors So the fundamental fact of scarcity in the world Gives rise to the necessity of acting right so that means we have to acquire knowledge of causal laws And we have to acquire and employ scarce means Right and for humans in society not just in the world in general This the scarcity gives rise to the fundamental social fact of the possibility of conflict over scarce means including human bodies Now when people in society recognize this fact and When they have a preference for cooperation and for general societal prosperity Which they usually do right given human social nature our Relationships with family neighbors and the recognition that we tend to acquire over time of the immense advantages of a cooperative society Having the division and specialization of labor then humans recognize the need for norms Determining who has the right to use the resources Including our bodies that are this that are otherwise subject to conflict so in other words we recognize the usefulness and the and the Desirability of having norms or rules that at least make it possible for conflict to be avoided at least among the people that recognize these norms so at least There's a recognition for the Desirability of norms in allocating who gets to control these scarce resources that we need to use so that they can be used peacefully and productively instead of Having violent conflict over them Okay going out of slide seven Okay, so What the libertarians believe and what I think is pretty clear from observing human nature and human history In in what's called a society of humans the ones that are seeking these kind of civilized peaceful norms Which you could call property rights or laws We'll tend to naturally gravitate towards the Lockean type of rule, which is the libertarian Idea basically which is basically this as Rothbard points out there are two Aspects to the Lockean idea and the libertarian idea It's a pretty simple set of Interrelated rules number one in the case of human bodies Who owns the body and the answer that Locke gives and the libertarians give is that each person owns his body At least initially this is called self-ownership Doesn't mean you always necessarily own your body if you're committing an act of aggression and attacking someone Then you give up your right to completely own your body because the victim has the right to Use force against your body in self-defense so for example, but at least prima facie or as a default rule Or it's a presumption an initial presumption every person owns his own body and But that's not the only type of scarce resource in the world Besides human bodies. There are other things out there in the world now these things are the things that are Previously unowned so the rule there is the owner of each External previously unowned resource is the person with the best claim to it and the person with the best claim to it is Either the first user of it because he came first or someone who is acquired title by contract from a previous owner so in other words First appropriation or lock-in homesteading combined with the idea of contract Determines who owns all other things other than human bodies and in the case of your body whoever is the person the legal person or the The soul if you want to call it that you don't have to have a spiritual Concept of these things for it to make sense, but in any case That's who the owner is so a set of rules is developed Call law which allocates ownership of all these scarce things Now as we get more sophisticated and things develop over time from this kind of crude natural position If there's a dispute over who gets to control a given thing then the people in society are going to work out a solution like informally at first among themselves just by Negotiation or settlement or compromise or by consensus or custom or something like that Or maybe they'll turn to some respected wise person a third party an arbitrator and thus we have the You know the phenomena of kings basically arising or leaders in society So over time what you have in a given society is a body of legal rules What emerge would emerge that would flesh out the application of these basic lock-in Style natural property norms the allocation schemes it would it would apply it to various real-life situations So this is what we think of as law or legal law. We should say Now turning to slide number eight So then in a more sophisticated society more developed society The field of legal scholarship would emerge which would systematize and categorize and critique and correct The body of law so then you have like a feedback system where you have judges or decision makers Who would refer it up the past rules and customs and decisions and solutions and conventions? and the expectations of parties and Also the scholarly works of commentators who've been commentating on the coherence of what's been developing so far and then the legal scholars would play their role and continually restating and discussing and Correcting and suggesting, you know corrections to past and recent legal developments So this is how the body of legal rules emerges in society. Basically. It's a response to the fundamental fact of scarcity People in society who prefer cooperation and productivity and prosperity and peace to violence and conflict Tend to prefer property allocation Norms those are going to tend to be the natural locking style ones and then over time it gets more and more developed and more fleshed out Now against this kind of backdrop of the libertarian Kind of common sense maybe simplified perspective of what law is and how it got here Let's talk about the the state of law today That is how how law is perceived and structured and what its origins are so in today's world That's the 21st century. There are two major legal systems in the world There's basically the English common law based systems, which is of course the United Kingdom Actually, except for Scotland, which is partly civil law, which we'll get to but most of England most of the UK England for sure and Ireland and the whales but basically English common law and also the Commonwealth former colonies Notably the United States and also Canada Australia and other Commonwealth countries and then there's the European or the continental civil law based System so these are the two major legal systems in the world today There's also of course Islamic law Jewish law international law, which is comprised of the United Nations Treaties law of nations laws of war etc Now the common conception is that these two types of law are very different that we have basically In the civil law, it's more Legal positivistic that is more based upon legislation Whereas the common laws were decentralized But this is a little bit of a misconception The the modern common law systems are based upon the original English common law But the modern civil law systems are based in their substance on the Roman law now the Roman law came before the English common law But there's actually something that the Roman law and the common law have in common. They are both Largely non legislation based Largely decentralized legal systems Okay, so the two major systems of the world today the modern common law and the modern civil law Have their origins of their sort of structure and basic legal concepts and legal rules in ancient long-lived decentralized non legislation based legal systems and Although the terminology and the concepts are a little bit different The basic substance is largely the same on the fundamental issues property rights contract rights, etc The Roman law was basically, you know a thousand year system from 439 BC to about 535 AD it is embodied in the Corpus Juriscivillus, that's the body of the civil law that was done under the under Justinian the Emperor Justinian and it comprises the code which was a bunch of codification of the imperial enactments or decrees Which is a little bit like legislation and also the digest which is one of the most important Which was the collection of the writings of the Roman jurists and like two of the most important of those were Papinian and Opium and then the institutes which was a student textbook. And so the survival of these The Corpus Juriscivillus has helped us to retain the body of the original Roman law most importantly the digest and probably the institutes now modern civil law Which? Excuse me, we can date to in its modern beginning to the code Napoleon the Napoleonic code the civil code of France in 1804 And like the Louisiana civil code started four years later in 1808 Basically was a modern recodification by legal scholars of The Roman law principles and other principles that had developed in the meantime from in Europe And the difference but in a way the codes are brilliant and elegant and beautiful codifications of the original Roman law legal science the principles that had developed in a decentralized fashion in the decisions of Basically courts or legal philosophers considering abstract cases But the codes state in the beginning that you know The the legislature's will is a source of law and we're the legislature Enacts this code as the basic law So it is trying to type of legal positivism and gives legislation the primary Status as the law maker even though the principles of their Legislating were developed in a decentralized non-legislative fashion now the common law in England Which we can date from around 11154 to present You know what's also Decentralized in a sense like the Roman law Before it was and then there's other important types of law as well, which I mentioned the law merchant In Europe in the Middle Ages from the fifth to the 15th century Church law Roman Catholic law, which is called cannon law and Jewish law from about 200 200 AD to to the present So as I mentioned before You could see actually a similarity between the original civil law and the common law and that they're both based on Original principles legal legal rules developed in the city districts decentralized fashion But the difference would be that the civil code enshrines legislation as the primary source of law But in modern times in the last couple hundred years What's happened is that? The civil codes have gradually been submerged in a sea of other legislation that are not elegant and Codified restatements of previous principles developed in decentralized form But are special interest statutes, you know, like the tax codes and the the regulatory state anti-trust law You know anti-discrimination provisions all these kinds of things. So among say in France or You know some traditional civil law country the civil code is still important But it's it's an ever diminishing part of the law So the entire system is becoming very legislation bound and not even in a code sense At least if you're you have legislation, which is a code Which is an enactment of previous decentralized legal principles at least the substance was developed mostly in decentralized form but nowadays the civil codes are diminishing in importance with the rise of other non code-based legislation and a similar things happen with the common law Gradually the common law has been codified in many in many important jurisdictions like the US the United the UCC the Uniform Commercial Code has been Gradually been enacted by legislatures to sort of codify in a legislative form the private common law has applied to contracts and property law etc and Even that has been submerged in a flood of legislation as just as in the civil law So So in in in the law today, I'm going to skip over to slide 12 now So what we have is Today the common law systems and the civil law systems are actually kind of similar Both have the core of their private law substance based upon a decentralized system from days in the past the Roman law in the case of civil law and the original English common law in the case of the common law countries like the US and England but Modern non code-based legislation has been Just flooding and you know becoming the primary source of law So what we have is I'm going to slide 13 now We have a system a situation today Where even in America in Canada and Australia and England as well as in Europe Almost everyone now thinks of law as whatever the government's you know Legislature Enacts or decrees in other words. It's legal positivism So everyone now today thinks of law as whatever the government decrees or says just like nowadays people think of money Not as being some natural natural phenomena that emerges in decentralized way on a free market like gold is money But they think of money as whatever fiat currency the government's central bank is going to issue Or has issued sorry so So now the problem is that the common conception of law today is some written rule Okay, it has to be written down. You'll hear people talk about but what what's on the law books even you know income tax protesters In the u.s. For example, they'll say something like income tax is not illegal and when you say yes It is because you'll go to jail if you don't pay your income tax. They'll say show me the law So what they're asking for is a they want you to show them a written Law from the legislature. So even they are sort of accepting that law is whatever the government decrees it to be and Unless the government decrees something. It's not really a law. So even they are accepting this idea of legislative legal positivism and By the way, I can't go into this in detail now, but hoppa in his article on nations Banking nation-states, which is in his book. I think in economics and ethics of private property also on his website Hans Herbert Hans hoppa.com You know, he talks about how the government as a territorial monopolist The way it insidiously takes control of society is to gradually take over the various important institutions of society and over time make the people believe that it's the Only provider of if not the originator of all these essential aspects of society So it takes over and then it co-ops and it corrupts institutions and practices like money and education and Transportation like roads, etc communications like, you know the internet and radio, etc. Newspapers Defense and justice and of course law By the way, hoppa has noted before that He's had a few remarks which I found interesting on the common versus the civil law I came from Louisiana, which is the only civil law state in the US. It's kind of a hybrid state But it does have a civil code and so I've gone through phases where At first I thought the civil law was superior like when I was in law school because it's based upon this kind of rationalist idea of a perfect Planning but when you become more of a libertarian You start realizing well, maybe the decentralized approach of the common law is better And now I've kind of come back to the idea that well, but the common law is not really any better Any more than the civil law Because it's not really any more decentralized any more than the civil law is They're both, you know, basically legis legally legal. They're both beholded to the idea of legal positivism. They're both Systems which have tons of special interest legislation That have basically starting to dominate the entire field of law and the entire conception of law has changed among the people in both systems so I no longer believe the common law is really Israeli that's superior And in fact the civil law in terms of its substance is better than the common law in a lot of ways because number one The concepts are less bound up with feudalism. So they're cleaner and more streamlined more elegant conceptually more Kind of lock in libertarian, I believe instead of talking about fee simple ownership and all these kind of bizarre things It's just ownership And also the idea as Hoppe points out You know if you codify the private law now this was done by scholars granted it was enacted by the legislature, but the key You know The key thing to appreciate about the civil law is that are the civil code. It was based upon a civil code Which was written in fairly simple precise Short elegant language that was pretty easy to understand even by a layman So You know, there are some people like I think Weber has suggested that the common law lawyers are a little bit too proud In thinking that the common law is so superior and a lot of libertarian legal scholars have sort of for a long time assumed that the common law is Superior because it's decentralized But what is this opposition to codification? I mean there's some thinking that it was because You know, you didn't want to make it easy for the layman to understand you wanted to You know make it the province of the lawyers the specialists You know laymen have to go to a lawyer in the common law to figure out what's going on because it's not easy to understand all this So I would say that there are some benefits to the idea of civilian codification Granted I'm on slide 14 now granted the main problem is that it enshrines the idea of legislative supremacy and In the common law they have some codification advantages, too They have the restatements of law. There's the UCC, etc. And also common law But common laws also become dominated by legislation. So, you know, these systems are really very similar in broad form nowadays so let's skip over slide 15 which kind of summarizes some of that and And let me just quote one thing by Hans Hoppe, which it was an answer to a question I had to him from a class I taught at the Mises Academy on Hoppe's thinking and I Summarized some of the stuff I just mentioned and Hoppe said I agree entirely with your assessment here I think the better analytic distinction is between private law and public law not between say civil law and Common law and that both common law and civil law were initially largely private law and have both become over time increasingly Public or legislative or statutory law and I agree with Hans. I think he's right Turning to slide 17, let me mention something that I found very interesting in some of my studies on this topic Back in 1884 there was a paper by a lawyer named James Carter called a proposed the proposed codification of our common law and this was a criticism by Carter a New York lawyer of The attempt by David Dudley Field to legislatively codify New York's common law and Carter opposed replacing case law which was sort of a decentralized legal system with centralized legislation He had several arguments number one case law precedents are flexible and they allow the justice the judge to do justice That's what his attempt is When he hears a dispute between parties to find the right solution But statutes by contrast that is legislation They have to be applied literally even where injustice is done or the legislator Didn't contemplate the result that the application of the statute would result in in a certain case And we see this today of course with copyright law with Statutory damages people going to jail for years for or even for life for just a couple of relatively minor Drug offenses because that's what the statute requires So Carter's argument was that if you replace Organically developed law with artificial legislation it changes the role of the courts and judges from one where the judge is searching for justice into A mere squabble over definitions of words that are found in statutes And then of course the state controls what words are there in the first place by legislation, which is really just a decree There's a fantastic quote by him, which I'll read here slide 18 At present when any doubt arises in any particular case as to what the true rule of the unwritten that is Common law developed law is it is it wants assume that the rule most in accordance with justice and sound policy is the one that Which must be declared to be the law The search is for that rule the appeal that is the the arguments of the lawyers Is squarely made to the highest considerations of morality and justice These are the rallying points of the struggle The contention is ennobling and beneficial to the advocates to the judges to the parties to the auditors And so indirectly to the whole community The decision that is the court's decision in a given case Then made records another step in the advance of human reason towards that perfection after which it forever aspires But when the law is conceded to be written down in a statute And the only question is what the statute means a contention unspeakably inferior is substituted Now the dispute is about words The question of what is right or wrong just or unjust Is irrelevant and out of place The only question is what has been written What a wretched exchange for the manly encounter upon the elevated plane of principle Anyway, that's a great, uh, that's a great quote. And as I mentioned before, um, you know, we we see this question being played out today In all these legal disputes now, especially in the criminal and the punitive law In copyright law where the only question the jury has to answer is did this guy copy something And then the judge has to award millions of dollars in statutory damages because the statute requires it But it has nothing to do with the real amount of damages suffered or justice or drug cases, for example The only question the jury has to answer is did this guy Sell marijuana It's got nothing to do with justice And if the guy goes to jail for 15 years or life Because the statute requires it. Well, that's what happens. So justice becomes irrelevant when statutes become the dominant source of law Uh, going on to slide 20 now some of this is pointed out in my earlier articles on legislation Um, there are other negative effects of having legislation become a dominant source of law or the primary source of law Uh, in fact with just thinking of law as being made by legislation or thinking of legislation as law at all Of having a legislature and there's an old saying that You know, your property rights are never safe with the legislatures in session That's sort of encapsulates a lot of what's wrong with just having A state or a legislature in the first place Anyway, the the Italian legal theorist Bruno Leone who who died tragically young in the 20th century What he pointed out was there is much more certainty Right in a decentralized legal system like the original roman law or the common law Then an essentialized system based upon legislation because In a legislation based system, you have a legislature which is seen as the primary source of law And is seeing seen as having the right to change the law whenever they wish Um, so they can change the law from day to day So that means we are less certain what the legal rules are going to be next year or tomorrow Uh, but judicial decisions if we have a decentralized system where law develops organically over time in a decentralized system Like the common law or the roman law Um legal certainty is enhanced And that's because judges and judicial decisions are much less able to affect legal uncertainty Um, there are several reasons for this number one is if you think about the position of a judge Or a court in a common law system, for example Unlike legislators the judge number one he can only make a decision when he's asked to do so by the party's concerned He can't just wake up one morning and start writing a new tax law or a new america's disabilities act or Anti-discrimination legislation, you know, he's got to have two parties with an actual concrete dispute And they have to have standing and he has to then he can hear that case At number two his decision is not a society-wide decision usually It's only affecting the parties to the dispute and it only occasionally affects third parties And also because Judges are seen as trying to do justice and their scene is developing upon and relying upon previous expectations and customs and The existing body of law as people understand it That is Precedence that is in other words the judges feel compelled and are expected to refer to previous precedent of other judges and they have to sort of either Find a decision that's compatible with what's gone before or they have to explicitly say look i'm going to Break from break from precedent and not follow stare decisis here But they have to give a reason for that and if the reasoning is too far out of bounds then their decision is seen as anomalous Instead of establishing a new rule for society So their discretion is limited. So this means basically judges can't legislate Which is by the which is one reason by the way, which patent and copyright which i oppose strongly Because they're completely legislated artificial systems Could never arise in a decentralized legal system A lot of libertarians who kind of admit the point that we shouldn't have a state or at least shouldn't make law by legislation They they say that well, you could still have patent and copyright Even though they're they're legislated today, even if they weren't legislated you could still have them arise somehow in a decentralized common law type system I think they're just wrong. They don't know what they're talking about Another negative effect of the uncertainty. So basically when you have a legislation-based system legal uncertainty is increased in society And you know, so for example legislation would tend to interfere with agreements people have made um, and so In other words the value of contracts Decreases in a legislation-based system because the Confidence you have that your agreement your contract with someone else will be enforced in the future Is lowered Okay, so that means that contracts are valued less than otherwise In other words people rely less on the ability to contract or engaging and contracting than they otherwise would So they they tend to develop more costly alternatives like structuring their companies and transactions in certain ways Because they can't rely upon contracts. So that distorts the economy and leads to inefficiency Also, when you have an increase in uncertainty in general in society because we have legislation As the source of law and that can change from day to day Then overall time preference in society is is is uh increased In other words when the future is made less Certain or made more uncertain Then your preference for future grad present gratification over future Increases which is rational, but basically It leads to an increase in overall time preference, which means People are less willing to forgo immediate benefits like consumption And they're less willing to invest their time and their capital in more indirect or that it's more round about or Lengthier production processes which would otherwise yield more or better goods for consumption or for the production. So in other words Just the increase in uncertainty Gives rise to an increase in time preference, which reduces economic efficiency and economic prosperity By how much we can't say but we know that this is a tendency and hampa has written a lot about this in his time preference In the civilization article and of course When you increase time preference You also Lead to more crime. So that's another negative effect of legislation So legislation leads to inefficiencies in a variety of ways to distortion of the economy It leads to a change of attitude of people about what law means and the connection between law and justice Okay, and it leads to more crime You know as hampa explains As people become more present oriented than immediate or criminal gratification becomes relatively more attractive than it would have been because the future punishment Which is uncertain and now is even more uncertain is less of a deterrent to their commission of crime and getting immediate gratification in the present now turning to Slide 23 Hapa in his article on time preference and democracy Referred to some studies by Banfield Banfield about how when you have Democratic lawmaking or legislation see hampa calls legislation democratic lawmaking, which I think is basically right It increases time preferences, etc And it increases crime not only because of the increase in time preference But because of the change of the attitude about what law is So here's a quote The mere fact of legislation of democratic lawmaking increases the degree of uncertainty Rather than being immutable and hence predictable Law becomes increasingly flexible and unpredictable. What is right or wrong today may not be so tomorrow The future is thus rendered more haphazard Consequently all around time preferences degrees will arise will rise consumption and short term orientation will be stimulated and at the same time The respect for all laws will be systematically undermined and crime will be promoted for there is no immutable standard of right Then there is also no firm definition of crime That's a quote by hampa by the way drawing upon Banfield He goes on slide 24 One must first work for a while before one gets paid in contrast specific criminal activities such as murder Assault rape robbery theft and burglary Required no such discipline the reward for the aggressor is tangible and immediate Whereas the sacrifice possible punishment lies in the future and is uncertain And by the way, a guido husband has a nice paper a nice lecture um In the mesas university 2011 with javelin tear on the division of labor and social order which does a really nice job of explaining The role of low time preference in extending the division of labor and savings and capital accumulation and productivity and wealth So take a look at that too. That's complementary to all this talk Now when we have a society like we have now where legislation becomes the primary source of law Then of course we have a a flood or an outpouring of artificial law Which gradually submerges these the good parts of the law the private law the common law Rules of property and contract etc and the civil law rules of private law as well We have in addition to the effects. I've just mentioned we have a lot of other insidious effects So number one special interest groups become more successful and then others have to arise for self defense So then we soon have a legal war of all against all which starts to emerge in society So then everyone's led into conflict rather than cooperation and remember the whole point of law is to Permit cooperation and to avoid conflict And also when you have so many laws it becomes impossible for every citizen for any citizen to avoid being a lawbreaker Uh, especially given the perverse positiveistic rule that ignorance of the law is no excuse So we all become lawbreakers and we are all lawbreakers. We can't help but violating the law Uh, and that discredits the law discredits the idea of the law So people start to you know Feel free to disobey the law when they want to which is good for artificial laws But not so good for valid laws and it also allows the state to selectively and arbitrarily enforce You know, whatever law they want to against whoever the troublemaker of the day is And there's another important Italian legal theorist Giovanni Sartori He pointed out that one another problem with legislation is that when legislation is thought of By the by society by the people as the primary source of law They become more accustomed to following orders, right? They become more docile more servile less independent And you know, he argues that once people lose their rebellious spirit Then it's easier for the government to increase its power and become more tyrannical So this Is all a good summary of the reason why we must end the practice of legislation Or at least we have to recognize that legislative laws have no connection whatsoever to justice So in this talk here, I hope you've enjoyed it. There's a lot more on this topic and the slides following slide 27 Cover a lot of the other things we could talk about Um, I do intend to take q&a in this podcast So anyone who has questions about what I've discussed here or other topics in the In the uh, the slides at the end or any other libertarian topic Feel free to email me or post in the comments On the blog the podcast of the blog the blog of the podcast I should say and I'll be happy to consider addressing them in a upcoming podcast Thanks. See you next week