STAFF NEWS & ANALYSIS
Look Around! Common Law Works. Government Statute Doesn’t.
By Joe Jarvis - September 22, 2017

How can something be considered a crime if there is no victim?

This is a problem. You can go through life making sure you don’t hurt anyone, and still break the law. Wouldn’t that be great if you could simply base your actions on common sense and respect for the standards of a community?

Instead, people must also make sure they don’t do anything labeled wrong by the government. Of course, it is impossible to know all the laws which the government has created. And what they call wrong is not always intuitive, nor offensive.

Government statute law goes beyond the resolution of disputes between individuals and groups. In contrast, the whole point of common law was to settle disputes in non-violent ways.

Now, there are third-party enforcers trolling around looking for a statute that has been broken. There doesn’t have to be a victim. No one has to have been wronged by the legal breach. They actually create conflict instead of resolving it. Their actions often lead to violent altercations, rather than deescalating disputes.

In an essay called “The Obviousness of Anarchy,” John Hasnas discusses the origins of common law, and how it was born out of anarchy. He says that clearly, no society can exist without governance. Part of the definition of a society is that it is somewhat organized and held together by common traditions. But that does not necessarily mean government, as the term has come to be understood.

In arguing for anarchy, I am arguing that a society without a central political authority is not only possible but desirable. That is all I am doing, however. I am not arguing for a society without coercion. I am not arguing for a society that abides by the libertarian non-aggression principle or any other principle of justice. I am not arguing for the morally ideal organisation of society. I am not arguing for utopia. What constitutes ideal justice and the perfectly just society is a fascinating philosophical question, but it is one that is irrelevant to the current pursuit. I am arguing only that human beings can live together successfully and prosper in the absence of a centralised coercive authority. To make the case for anarchy, that is all that is required.

Inevitably, there will be disputes between humans. Hasnas argues that the best society achievable is one where the entire governing structure exists exclusively to settle disputes. The rule of law was born out of trying to peacefully solve disputes that might have otherwise erupted into violence. Common law is a collection of these outcomes. Others in similar predicaments can look to precedent to see what worked to avoid violent outcomes in past similar circumstances.

…common law provides us with rules that facilitate peace and cooperative activities. Government legislation provides us with rules that facilitate the exploitation of the politically powerless by the politically dominant. The former bring order to society; the latter tend to produce strife. Hence, not only is government not necessary to create the basic rules of social order, it is precisely the rules that the government does create that tend to undermine that order.

This means there had to first be a conflict before any legal proceedings started. No Victim, no crime. Without an alleged injured party, there was nothing to resolve. People went about their business unmolested.

Courts consisted of respected members of a community who had been involved in previous conflict resolutions. They were therefore well equipt to suggest outcomes that had in the past avoided violence. Their job was to find an arrangement that satisfied both parties involved in the dispute.

English common law is, in fact, case-generated law; that is, law that spontaneously evolves from the settlement of actual disputes. Almost all of the law that provides the infrastructure of our contemporary society was created in this way. Tort law, which provides protection against personal injury; property law, which demarcates property rights; contract law, which provides the grounding for exchange; commercial law, which facilitates complex business transactions; and even criminal law, which punishes harmful behavior, all arose through this evolutionary process.

When it comes to criminal law, obviously things get a bit more complicated. But none of those complications are avoided in the current legal system. They are actually exacerbated by having the same group make the laws, enforce the laws, prosecute the cases, and judge the cases. These are no longer disinterested third parties. They have many interests wrapped up in performing their jobs to satisfy bosses and colleagues rather than victims and people in dispute.

And it is further complicated by the fact that government has mixed arbitrary statute law with laws which allow real victims recourse for wrongs done to them. But is the government really necessary to say, murder is wrong, theft is wrong, and rape is wrong?

It is true that most of our current law exists in the form of statutes. This is because much of the common law has been codified through legislation. But the fact that politicians recognised the wisdom of the common law by enacting it into statutes, hardly proves that government is necessary to create rules of law. Indeed, it proves precisely the opposite.

Rape, murder, and theft were being resolved and punished before the government codified those crimes into law. This is because victims and their families naturally have an incentive to bring suit against people who have wronged them.

In common law, the best practices naturally became widespread. The entire point is to solve a problem. The best solutions were more widely adopted.

But that doesn’t mean those solutions and methods had to be implemented in other places. Cultures are different, and communities have different values and standards. One culture may see picking an apple off a neighbor’s tree as trivial, while another may take the crime quite seriously.

But still, obeying common law does not require years of legal study.

Understanding the traditional rules of common law requires only that one be a member of the relevant community to which the rules apply, not that one be an attorney.

Government legislation, in contrast, need have no relationship to either the understanding or the moral sensibility of the ordinary person.

So it is the responsibility of an individual to understand how the rules differ from place to place. But under common law, that would only require not victimizing. If you don’t know the cultural acceptance of picking apples that don’t belong to you, don’t do it!

By contrast, governments have arbitrary statutes that are not intuitive. You may know that walking around with an open alcoholic beverage isn’t hurting anyone, yet the legality of this action differs from town to town, and state to state. The same applies to carrying a concealed weapon, possessing marijuana, and taking your shirt off. Yet none of these actions hurt anyone.

Throughout his piece, Hasnas repeatedly tells readers to look around when it comes to evidence that things can, will, and do function just fine without government law in certain areas.

Business is contracted around the world among parties from virtually all countries. Although there is neither a world government nor world court, businesses do not go to war with each other over contract disputes. News is almost always the news of violent conflict. The very lack of reporting on international business disputes is evidence that international commercial disputes are effectively resolved without the government provision of courts. How can this be?

The answer is simplicity itself. The parties to international transactions select, usually in advance, the dispute settlement mechanism they prefer from among the many options available to them. Few choose trial by combat.

What businesses avoid is American courts because of their slow speed and unpredictable rulings. And this is the main argument for why there would still be effective governance without government. Disputes, violence, and unpredictability threaten profits and wealth.

So we don’t need legislatures: all law can be created through dispute resolution. We don’t need government courts: in current situations with no government, disputes are settled just fine without violence.

And we don’t need government enforcers. They create conflict by initiating violence when a statute has been violated, even when no victim exists.

Government sponsored law enforcement is relatively recent, and society as we know it predates public police.

The proper response to the claim that government must provide police services is: look around. I work at a University that supplies its own campus police force. On my drive in, I pass a privately operated armored car that transports currency and other valuable items for banks and businesses. When I go downtown, I enter buildings that are serviced by private security companies that require me to sign in before entering. I shop at malls and department stores patrolled by their own private guards. While in the mall, I occasionally browse in the Security Zone store that sells personal and home protection equipment. I converse with attorneys and, once in a while with a disgruntled spouse or worried parent, who employ private detective agencies to perform investigations for them. I write books about how the United States Federal government coerces private corporations into performing criminal investigations for it. When I was younger, I frequented nightclubs and bars that employed “bouncers.” Although it has never happened to me personally, I know people who have been contacted by private debt collection agencies or have been visited by repo men. Once in a while, I meet people who are almost as important as rock stars and travel with their own bodyguards. At the end of the day, I return home to my community that has its own neighborhood watch.

Look around!

The most important laws that actually protect people from harm were not created by government. The most effective courts which settle disputes without violence were not created by government. And most current security which keeps us safe, investigates crime, and brings people to justice are not government forces!

No, it’s not about creating utopia. But what could exist is a society in which it becomes extremely unprofitable to be aggressive.

You don’t have to play by the rules of the corrupt politicians, manipulative media, and brainwashed peers.

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