KOL199 | Tom Woods Show: The State’s Corruption of Private Law, or We Don’t Need No Legislature

Kinsella on Liberty Podcast, Episode 199. I discussed legislation and law  with Tom Woods on his show today, Episode 557: Ep. 557 The State’s Corruption of Private Law, or We Don’t Need No Legislature 17th December 2015 Ever since we learned in school how a bill becomes a law, we’ve absorbed the idea that it’s normal for law to be imposed from the top down. But it’s possible, and indeed the historical norm, for law to emerge in a completely different, more libertarian-friendly way. Join me for a great conversation with Stephan Kinsella! Transcript below. Youtube version: More description from Tom's shownotes: Related Links “Legislation and the Discovery of Law in a Free Society” (PDF) by Stephan Kinsella Liberty and Law (PDF), by Giovanni Sartori “The State’s Corruption of Private Law,” by Stephan Kinsella “Another Problem with Legislation: James Carter and the Field Codes,” by Stephan Kinsella Related Books Law, Legislation, and Liberty, vol. 1: Rules and Order, by F.A. Hayek Freedom and the Law, by Bruno Leoni Books by the Guest Against Intellectual Property International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk For some more related posts/resources: “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010) “Legislation and the Discovery of Law in a Free Society,” Journal of Libertarian Studies 11 (Summer 1995) Another Problem with Legislation: James Carter v. the Field Codes Kinsella & Rome, Louisiana Civil Law Dictionary (Quid Pro Books, 2011) Regret: The Glory of State Law KOL001 | “The (State’s) Corruption of (Private) Law” (PFS 2012) Hayek, Law, Legislation and Liberty, vol. 1 John Hasnas, The Myth of the Rule of Law (2) David Kelley & Roger Donway, Laissez Parler: Freedom in the Electronic Media (linked here) Bruno Leoni, Freedom and the Law Giovanni Sartori, Liberty and Law (pdf) Shael Herman, The Louisiana Civil Code: A European Legacy for the United States Alan Watson, Roman Law and Comparative Law Idem, The Importance of “Nutshells”, AJCL, 1994 Why Airwaves (Electromagnetic Spectra) Are (Arguably) Property Transcript The State's Corruption of Private Law, or We Don't Need No Legislature Stephan Kinsella, interviewed by Tom Woods The Tom Woods Show, Dec. 17, 2015 Transcript 00:00:00 TOM WOODS: The Tom Woods Show, episode 557. 00:00:03 INTRO: Prepare to set fire to the index card of allowable opinion.  Your daily dose of liberty education starts here, the Tom Woods Show. 00:00:13 TOM WOODS: Hey everybody.  Welcome to another episode of the show.  Stephan Kinsella is back with us again.  There are so many episode topics I could cover with Stephan Kinsella, and today we’re talking about law and legislation.  Is it possible to think of law other than as something that’s imposed from the top down by a bunch of legislators on society?  That’s what we want to talk about because it’s important, has important ramifications, and I thought I haven’t done it yet.  Doggone it; it’s episode 557.  Let’s do it. 00:00:48 Stephan Kinsella is a libertarian legal theorist.  He has pioneered in the study of intellectual property.  I’m going to link to all kinds of material about Stephan at tomwoods.com/557.  You can find out more about him at stephankinsella.com.  Let me remind you because there’s been a little bit of confusion.  I am giving away a free autographed book.  You can look through my book selection at tomwoods.com/books.  I am giving away a free autographed and personalized book to people who buy gift subscriptions to libertyclassroom.com this year, only for gift subscriptions. 00:01:28 It’s like when you go to Chili’s, which I don’t recommend, but if you go to Chili’s and you buy a $25 gift card, they give you a $5 gift card, it’s that kind of principle.  So if you buy a gift, you get something for yourself.  So I probably won’t be able to get it to you before Christmas, so don’t think of it as a gift to give to your recipient.  You’ve already given your recipient a gift.  It’s enough giving for one person.  Keep the book for yourself.  So just get the subscription at libertyclassroom.com and just drop me a line at tomwoods.com.  Tell me what book you’d like, give me your address, and I’ll mail that baby right on out to you.  All right, let’s talk now to Stephan Kinsella.  Stephan, welcome back to the show. 00:02:08 STEPHAN KINSELLA: Thanks Tom, glad to be here. 00:02:09 TOM WOODS: This is a topic I get but I don’t fully get, and I say that as somebody who’s been a libertarian for a long time, and I want you to help us flesh out this topic of law and legislation as two different things that if we say that we don’t like legislation that doesn’t mean we don’t like law.  What do these things mean?  Can you have law without a centralized lawmaker that hands down authoritative statements that bind everybody in society?  Is there another way of thinking about how law comes about?  That’s what we want to look at today.  We’re going to have a lot of links on the show notes page, so if this topic interests you, tomwoods.com/557 will have a whole bunch of stuff, some stuff by Stephan Kinsella, some stuff by Bruno Leoni and others. 00:02:57 All right, let’s set the stage here.  Let’s bear in mind that obviously as anarcho-capitalists we don’t see a role for a legislature to begin with, but that’s not the central claim that’s being made here.  I mean F.A. Hayek was not an anarchist, and yet he still spoke very favorably about what we might call judge – not judge-made law because that again sounds constructivist, but judge-discovered law.  Give me the two-minute bird’s eye view, and then we’re going to take it apart. 00:03:29 STEPHAN KINSELLA: Well, let’s go back to what the term law means and why we use law because the word law is used in the physical sciences, in physics, and it’s used in the social sciences as well in different ways.  I was just reading – listening to a great speech by a professor at Oxford about the famous scientist, James Clerk Maxwell, who’s a – I’m an electrical engineer background, so all double E’s, no Maxwell’s equations.  So Maxwell is like one of the top brilliant natural scientists of all history really.  I mean he’s up there with Einstein and Newton. 00:04:06 What he came up with in the 1800s was incredible.  He unified electromagnetism and light theory, and his father wanted him to be a lawyer, and he said, dad, I’m going to pursue another kind of law.  So I kind of like that because it shows that there’s this unifying idea of laws that we all search for in different realms of intellectual inquiry.  But the physical laws are one thing.  They’re physical laws you’re trying to discover according to the scientific method.  And then we have laws, like what people talk about normally as it’s against the law to do A, B, and C. 00:04:47 Nowadays, because we have a heavily, legally positivistic culture and I can explain what that means, most people nowadays think in those terms, so they think of a law as a piece of paper with words on it that some legislature has written down what the law is just like people think of contracts, and I think we talked about this recently.  They think of contracts as a piece of paper with words on it that announce what the contract is.  So they identify the contract with the piece of paper.  They identify the law with what’s written down in a statute.  That’s what legislation is. 00:05:26 And sometimes you’ll hear the more simple-minded types talk about the law books, the law books.  You’ll hear these common law court nuts or the income tax conspiracy types who will say that it’s not illegal to pay income tax because show me the law books.  Show me the law.  So they’re equating in their minds law with what’s written down on a piece of paper that was published by some authoritative body, the legislature, or the king or maybe God or maybe the Bible, whatever.  So they’re thinking of law that way. 00:06:01 But this is not – and I think they think of that now because – and they didn’t used to, Tom.  And you know a way lot more about history than me, so you might be able to fill in some of my meanderings or gaps on this issue.  But the approach I like to take is this.  Law in terms of legal law, in terms of normative rules that humans come up with to help us get along with each other in society, and basically all laws are property rights that determine who can use resources that we could otherwise conflict over. 00:06:35 So the question is what should the law be, which means who should the owner be?  Who should win in this dispute?  In older times, the conception of law was that there’s a sort of natural justice.  There’s a background of what we call higher law, and we’re trying to do justice.  So you have a judge or a court or a tribunal or an arbitral tribunal, someone who is appealed to because of their wisdom or their place in society, and the two or more contestants who have a dispute over who basically gets to own a given resource that’s in dispute – who’s going to get to own it? 00:07:12 And then the job of the judge is to do justice, that is, to try to find the right answer, and they try to do this.  And over time, a body of law develops in a decentralized fashion.  Now, this happened historically, Tom, and the two major periods would be in the Roman law period roughly from -500 to 500 – from -500 A.D. to – or B.C. to 500 A.D. like the thousand-year period of the German – I’m sorry, the Roman empire.  And then the second period would be the English common law, which started developing around – I think probably around 1000, something like that.  And it borrowed partly from the Roman law,