There is, of course, a theory of law. As soon as you ponder the question, you realise there must be. But it had never occurred to me (in my faint defence I find, now I look, that whilst wiki has a category for theories of law, it doesn’t seem to have an overall article on the concept of theory of law). Nor, when I mention it to various friends, did the question strike any kind of “oh yeah, I know that stuff” answer. My children, who have done some “philosophy” in school, hadn’t heard of the idea either.

So this post is likely to be naive. But my dumb opinions are just as good as anyone else’s. Enough excuses. Let’s go:

Where does law come from or, if you prefer, where should law come from? If you are Hobbes, then the answer is clear (one delight, but also fatal flaw, of all Hobbes’s work is that every question has a clear answer. Naturally, this means that many of the answers are wrong because it simply isn’t possible to answer all questions clearly. Never mind). Let’s read some Hobbes.

Civill Law what

Isn’t that a gorgeous heading? Straight to the point no wasted words.

And first it is manifest, that Law in generall, is not Counsell, but Command; nor a Command of any man to any man; but only of him, whose Command is addressed to one formerly obliged to obey him. And as for Civill Law, it addeth only the name of the person Commanding, which is Persona Civitatis, the Person of the Common-wealth.
Which considered, I define Civill Law in this Manner. “CIVILL LAW, Is to every Subject, those Rules, which the Common-wealth hath Commanded him, by Word, Writing, or other sufficient Sign of the Will, to make use of, for the Distinction of Right, and Wrong; that is to say, of what is contrary, and what is not contrary to the Rule.”

No messing about. Law is command.

…some Lawes are addressed to all the Subjects in generall; some to particular Provinces; some to particular Vocations; and some to particular Men; and are therefore Lawes, to every of those to whom the Command is directed; and to none else. As also, that Lawes are the Rules of Just, and Unjust; nothing being reputed Unjust, that is not contrary to some Law. Likewise, that none can make Lawes but the Common-wealth; because our Subjection is to the Common-wealth only…

I’m getting somewhat ahead of myself here, but notice how Hobbes does not distinguish between law-in-general (“thou shalt not kill” for example) and law-as-regulation (“go build a bridge over this ravine”), even though it is hard to think of the latter sort as having much to do with justice. To him it is all law, all command.

Notice if you’re new to Hobbes: the statement that it is “command” does not imply an individual doing the commanding; Hobbes uses “sovereign” indiscriminately for monarchy, aristocracy or democracy; the only three possible forms of government.

Because law is command,

and a Command consisteth in declaration, or manifestation of the will of him that commandeth, by voyce, writing, or some other sufficient argument of the same, we may understand, that the Command of the Common-wealth, is Law onely to those, that have means to take notice of it. Over naturall fooles, children, or mad-men there is no Law.

More interesting things also follow from this, and if you please you may read them for yourself. There’s also a not-very-inspiring wiki article on legal positivism. But it is time to turn to Hayek.

Law is older than legislation

Having rather liked Hobbes (had you guessed?) I was interested to read Hayek casually demolish his theory of law. Perhaps the casualness is assumed; Hayek is inscrutable. He’s also harder to quote, because I can’t find his stuff as easily online… or is that true? Maybe I just didn’t look. Here is “the road to serfdom”. And here’s the one I want, Law, Legislation and Liberty.

The idea that law is older than legislation strikes obliquely at Hobbes’s core concept of the founding of the social contract; though it was never really clear if the historicity of same was of any particular importance. But enough of Hobbes for the moment, we need to hear from Hayek:

Unlike law itself, which has never been ‘invented’ in the same sense, the invention of legislation came relatively late in the history of mankind. It gave into the hands of men an instrument of great power which they needed to achieve some good, but which they have not yet learned so to control that it may not produce great evil. It opened to man wholly new possibilities and gave him a new sense of power over his fate. The discussion about who should possess this power has, however, unduly overshadowed the much more fundamental question of how far this power should extend. It will certainly remain an exceedingly dangerous power so long as we believe that it will do harm only if wielded by bad men.

Law is old, legislation is young, and of course we see this segue into his main interest, the conduct of society. Hayek isn’t so pithy as Hobbes, so is harder to quote:

Law in the sense of enforced rules of conduct is undoubtedly coeval with society; only the observance of common rules makes the peaceful existence of individuals in society possible. Long before man had developed language to the point where it enabled him to issue general commands, an individual would be accepted as a member of a group only so long as he conformed to its rules. Such rules might in a sense not be known and still have to be discovered, because from ‘knowing how’ to act, or from being able to recognize that the acts of another did or did not conform to accepted practices, it is still a long way to being able to state such rules in words… all the famous early ‘law-givers’, from Ur-Nammu and Hammurabi to Solon, Lykurgus and the authors of the Roman Twelve Tables, did not intend to create new law but merely to state what law was and had always been.

The sources for these assertions are spread out over succeeding pages and so are hard to pin down. Perhaps you should read then as things-you-are-invited-to-realise-are-obvious-when-you-see-them. In that, they resemble the economic history in Wealth of Nations. Personally, I find them plausible. Hayek realises that many people will find them surprising:

To modern man, on the other hand, the belief that all law governing human action is the product of legislation appears so obvious that the contention that law is older than law-making has almost the character of a paradox.

Unlike Hobbes, Hayek clearly distinguishes “law” from “regulation”:

the chief or ruler will use his authority for two quite different purposes: he will do so to
teach or enforce rules of conduct which he regards as established, though he may have little idea why they are important or what depends on their observance; he will also give commands for actions which seem to him necessary for the achievement of particular purposes.

And ties this to the English Common Law:

The freedom of the British which in the eighteenth century the rest of Europe came so much to admire was thus not, as the British themselves ,vere among the first to believe and as Montesquieu later taught the world, originally a product of the separation of powers between legislature and executive, but rather a result of the fact that the law that governed the decisions of the courts was the common law, a law existing independently of anyone’s will and at the same time binding upon and developed by the independent courts; a law with which parliament only rarely interfered and, when it did, mainly only to clear up doubtful points within a given body of law.

All of this is linked to the way Hayek views “spontaneous order” which I don’t want to touch on yet; this blogpost talks of it

Refs

* Timmy quotes Hayek for Apple against the EU

Comments

  1. #1 Dan Riley
    2016/08/28

    Since I read and thought a little, might as well comment on what struck me.

    Hobbes’s definition of law as command implies that laws must be communicated.

    Hayek’s definition as “enforced rules of conduct” is (typically) all about coercion, with no requirement that laws be communicable by means other than enforcement. It would also seem to encompass all sorts of animal behavior–does his definition of “society” include the social animals?

    [Hobbes explicitly draws out the need for communication. Hayek doesn’t; I suspect the need is so obvious to him that he doesn’t bother say so explicitly -W]

    Hayek also, to me, seems rather sloppy about equating terms like “legislation” and “law-making” without clearly defining what he means by either. Are those really the same thing?

    [I did not have space in this little post to cover everything. Hayek is in fact extremely precise in distinguishing different categories; I’ll return to that later in one of my tirades against regulation -W]

    Personally I lean towards defining law as the formalization of rules of conduct, so I prefer Hobbes to Hayek.

    [Oops, you have it the wrong way round (did I really explain it so badly?). If that is so, you like Hayek -W]

  2. #2 izen
    2016/08/29

    @-“all the famous early ‘law-givers’, from Ur-Nammu and Hammurabi to Solon, Lykurgus and the authors of the Roman Twelve Tables, did not intend to create new law but merely to state what law was and had always been.”

    A prominent feature of the early ‘law-givers’ are the many laws about slaves. Apparently this was merely stating what had always been, or coeval with society.

    The switch from Hammurabi commanding the death penalty for harbouring a run-away slave to legislation outlawing slavery would seem to favour Hobbes and the social contingency of laws adopted by a commonwealth rather than the ‘innate forms’ or spontaneous order, that are inherently unalterable.
    izen

    [I think you could perhaps make an argument that the switch to outlawing slavery had a good deal to do with formalising changing attitudes in society; it was not simply the command of one strong sovereign. However, recall that Hayek is talking about early law. He does not assert that all modern law is discovered; indeed he recognises that nowadays lots of “law” is made -W]

  3. #3 Kevin O'Neill
    2016/08/29

    “all the famous early ‘law-givers’, from Ur-Nammu and Hammurabi to Solon, Lykurgus and the authors of the Roman Twelve Tables, did not intend to create new law but merely to state what law was and had always been.

    This is wrong. As the prologue to the Code of Ur -Nammu states: “He fashioned the bronze sila-measure, standardized the one-mina weight, and standardized the stone weight of a shekel of silver in relation to one mina… The orphan was not delivered up to the rich man; the widow was not delivered up to the mighty man; the man of one shekel was not delivered up to the man of one mina.” These are highlighted precisely because they differed from the past.

    [That isn’t obvious from what you quote. How can you tell it is describing change? -W]

    The prologue is not boasting of codifications of existing social norms, but new ‘laws’ and similarly when Hammurabi instituted his Code it differed – in some cases markedly – from that of Ur-Nammu. This hardly compels one to agree that early lawgivers were merely stating what law was and had always been.

    Quite the opposite conclusion can be made: The law is whatever she with the power to enforce law wants it to be.

    From our hunter-gatherer roots it should be obvious that most of our deepest social norms will revolve not around property (since no one had any), but sexuality, marriage, and physical harm. Yet the consequences for violating these norms vary from tribe to tribe, culture to culture, and state to state. Early lawgivers were creating new law by not leaving it up to the aggrieved parties to decide what they felt justice demanded.

    [That law varies from tribe to tribe isn’t relevant to the discussion -W]

  4. #4 Kevin O'Neill
    2016/08/29

    You might find this ‘legal’ dispute among the !Kung and its resolution interesting. Scroll down to the heading, “Deadly Conflict.”

  5. #5 Kevin O'Neill
    2016/08/29

    izen – there is no evidence to my knowledge of slavery in hunter-gatherer societies. It probably began alongside agriculture. Slavery is another point against Hayek’s notion of what law was and had always been.

  6. #6 izen
    2016/08/29

    @-Kevin O’Neill

    The indigenous peoples of the North West coast of America/Canada are generally considered to be hunter-gatherers. They also had slaves.

  7. #7 David B. Benson
    United States
    2016/08/29

    Hayek is wrong. Consider the evolution of law from hunter-gatherers such as the !Kung to the settled societies of the Fertile Cresent.

    Besides, Hobbes is clear and reading Hayek akin to walking through treacle.

    [Hobbes is indeed clear – I believe I covered that point – and beautiful; whereas Hayek is very dry, and will frequently use an entire page of abstraction in order to remain timeless, where one pithy example would suffice. But I’m afraid your assertion that Hayek is wrong is unconvincing without citation -W]

  8. #8 Kevin O'Neill
    2016/08/29

    izen – the Northwest Coast peoples are typically considered ‘complex hunter-gatherers’ — they fished, often had fixed settllements/houses, stored large amounts of food, and many farmed on small scales.

  9. #9 Tom C
    2016/08/29

    izen – Nice to see someone use the word “coeval”.

    David Benson – I don’t think you know what “treacle” means.

    [Hayek certainly isn’t sweet -W]

  10. #10 Kevin O'Neill
    2016/08/30

    WC — Urukagina’s Code is different than that of Ur-Nammu which is different than that of Hammurabi. Hayek’s notion of ‘what law was and had always been’ is contradicted by ever-changing laws even in the earliest days of city-states. These men weren’t merely transcribing what everyone *knew* to be law – they were creating and or changing it. Hayek was simply wrong.

    [Hayek isn’t claiming that the law remains constant. He couldn’t be -W]

  11. #11 David B. Benson
    United States
    2016/08/30

    Tom C — I certainly know what treacle means. Ever attempted to wade through a vat of it?

  12. #12 Kevin O'Neill
    2016/08/30

    WC writes: “Hayek isn’t claiming that the law remains constant. ”

    Hayek says “…all the famous early ‘law-givers’, from Ur-Nammu and Hammurabi to Solon, Lykurgus and the authors of the Roman Twelve Tables, did not intend to create new law but merely to state what law was and had always been.”

    They were creating new law. They were changing *existing* law. They were not simply codifying that which was and had always been.

    [That’s your belief, certainly -W]

    This shouldn’t really be difficult to understand. Property hadn’t really even existed before. What laws – natural or otherwise – existed regarding property, boundaries, weights and measures in hunter gatherer societies?

    [That doesn’t sound obvious, so saying without attempt at citation is unreasonable -W]

  13. #13 David B. Benson
    United States
    2016/08/31

    William –‘ Read the link in comment #4, supra. Kevin already provided a reference.

    The point is that laws evolve. Hayek seems to hold the contrary view.

    [If that is your point, you’ve missed Hayek’s point; and mine. There is of course no doubt that laws evolve. How could it be otherwise? -W]

  14. #14 James Annan
    http://blueskiesresearch.co.uk/
    2016/08/31

    Is there a theory of mathematics? Maybe philosophers talk about this sort of thing, mathematicians don’t. Regardless, it would only be a post-hoc just-so story rather than anything of practical use.

    [I think so, though there are so many levels its hard to know which one you’d call the “theory of maths”. Questions like “what makes the number 2” are part of it; but are useless to most mathematicians -W]

  15. #15 rconnor
    2016/08/31

    I tried posting a few links to support Kevin’s point but it doesn’t look like it went through. The gist of it was:

    (i) Cicero argued that there is no concept of private property under natural law but only under common law – https://archive.org/stream/propertyitsdutie00gorerich#page/122/mode/1up

    (ii) (North American) Indigenous groups had a very different concept of property – http://www.ajic.mb.ca/volumel/chapter2.html

    The concept of property law (i) did not always exist and (ii) differed from society to society. I believe Kevin’s use of property law is a good example that works against Hayek’s views that “[early law-makers] did not intend to create new law but merely to state what law was and had always been”.

    [I don’t quite see why that’s relevant. That law varies from place to place we all know; Hayek knows this too. The relevance of the Cicero point I don’t understand at all -W]

    In my opinion, what Hayek is saying is that early law-makers just wrote down what were previously (“and had always been”) the unwritten rules of society.

    [In a nutshell, yes -W]

    Property law is an example of this being untrue.

    [No, sorry, you’ve all-of-a-sudden lost me. Try taking smaller steps -W]

    Furthermore, the formalization of law (legislation) transformed law. Rather than working off the elder’s, ruler’s or “person in charge’s” opinion on whether a societal norm had been broken and what the punishment would be, the formalization of law meant there were written laws to reference and interpret, usually with the punishment prescribed therein, and procedures to follow. This is far more than just slapping some words behind laws that “[were] and had always been”, it transforms what law is (collection of loosely defined societal norms to a formalized institution).

    [Yes, of course it does. Again, Hayek is fine with that. It makes it much harder to shift and change as “old” law becomes “unjust” in new times, for example -W]

    What’s more, Hayek seems to recognize this himself. He discusses how the formalization of law opens the door for the law-makers to abuse the power of legislation to their advantage. Clearly Hayek sees an important difference in laws between pre and post legislation. So not only do I believe Kevin is right to say Hayek is wrong with his “law was and had always been” comment but it’s also self-contradictory.

  16. #16 rconnor
    2016/08/31

    “[No, sorry, you’ve all-of-a-sudden lost me. Try taking smaller steps –W]”

    1. Hayek says “[law-makers] did not intend to create new law but merely to state [***]what law was and had always been[***]”.
    2. Law is constantly changing and differs from society to society. See the examples provided. (You agree it changes and say so does Hayek)
    3. As law is constantly changing, current law is [***]not what law was or has always been[***].
    4. Hayek is incorrect to say “[law-makers] did not intend to create new law but merely to state what law was and had always been”.
    5. This extends to Hayek’s concept of the “innateness” of law and “spontaneous order”. But that I can save that for when you talk about it.

    [It’s between 3 and 4 that you go wrong. Perhaps you failed to notice H’s careful “did not intend”? -W]

  17. #17 Kevin O'Neill
    2016/08/31

    WC – What is the *natural* punishment for a woman committing adultery? If, as Hayek says, the early lawgivers were not creating law, then there must have been cultural agreement on what the punishment – if any – should be. Do you *seriously* believe this? You can ask 100 people today and get 40 different answers. Yet somehow people 4k or 5k years ago were in tacit agreement upon the subject. Yeah, right.

    As I’ve pointed out already, the punishment for the exact same crime varies between the Code of Urukagina, the Code of Ur-Nammu and the Code of Hammurabi. Hayek specifically cites Ur-Nammu, but Ur-Nammu was *changing* the existing law.

    Apparently you just can’t admit this, but it’s a simple basic fact of history – one that Hayek gets wrong.

  18. #18 JD Ohio
    2016/09/01

    It is interesting to me that WC finds this interesting. I became acquainted with Hobbes in philosophy classes as an undergraduate. Never ran into Hayek as a legal commentator as an undergraduate or law student. If I read Hobbes and Hayek closely, it would probably be a fun read. However, never once in practice did I ever encounter a situation where a judge or an opposing party or myself ever quoted either Hobbes or Hayek.

    Much more influential was the statement of Holmes that “”The life of the law has not been logic; it has been experience.” See https://en.wikipedia.org/wiki/Oliver_Wendell_Holmes_Jr.

    JD

  19. #19 JD Ohio
    2016/09/01

    While discussing the law, I believe it is important to note the awful legacy of Obama with respect to American law. Under the guise of the exercise of prosecutorial discretion (which properly limited has been a fixture of American law), he has laid the basis for the destruction of Congressional legislation.

    Not only is Obama not enforcing immigration law, he is actively encouraging its violation telling illegal entrants where to go to avoid deportation even though their presence in the US is illegal. http://www.foxnews.com/us/2016/08/02/border-patrols-website-offers-advice-on-eluding-border-patrol.html This advice seems to violate the Federal Statute making it a felony to harbor or assist in shielding illegal entrants from deportation. See Section 8 USC 1324(a)(1)(A)(iv)(b)(iii). See also http://www.americanpatrol.com/REFERENCE/AidAbetUnlawfulSec8USC1324.html

    The main point being that if Obama can not only selectively enforce but encourage illegal entry into the US, he has effectively repealed an important Congressional statute. Under his means of operation, there is no important role for Congress. A future president could refuse to enforce environmental laws or equal employment laws. As utilized by Obama the concept of prosecutorial discretion is the exception that swallows up the rule.

    There are many misconceptions about what Obama has done. I will dispose of one here, which I know would otherwise be raised. He has not increased deportations. Rather, he has labeled border apprehensions as deportations and added them to real deportations to dishonestly inflate the numbers. See https://www.numbersusa.com/content/news/february-12-2013/how-obama-administration-inflates-deportation-statistics.html

    JD

    [You have separation of powers, no? The executive doesn’t enforce law, the judicial branch does -W]

  20. #20 Dunc
    2016/09/01

    There seems to be some talking at cross-purposes here about Hayek’s opinions re: early lawgivers… Here is how I am interpreting that statement, with some emphasis and additions for clarity:

    “all the famous early ‘law-givers […] did not intend to create new law, but merely to state what [they believed] law was and had always been [in their respective societies].”

    An interpretation which implies some view of law as both universal and unchanging seems uncharitable to me. I think Hayek is simply taking the limitations of the cultural viewpoints of those early law-givers for granted. He is assuming that they are working within a particular society at a particular time, and do not have access to any information about how that society’s view of law has evolved, or how it differs from the views of other societies or time periods.

    [Ah, at last. Someone who understands. I was giving up hope -W]

  21. #21 rconnor
    2016/09/01

    “I think Hayek is simply taking the limitations of the cultural viewpoints of those early law-givers for granted.” – Dunc

    Dunc, very well put. I actually agree with that.

    However, the problem (for Hayek) I was getting at is that the “innateness” of laws is very core to his theory. So while he feels that early law-makers were imperfect legislators or at least varied legislators, due to the impact of culture, he does seem to feel underneath it there are laws that “had always been”. Hence “spontaneous order”. Hence his views on natural law. I think it’s a misreading to say that Hayek is saying that “early law-makers” only felt there were laws that “had always been”; that feeling is core to Hayek’s thinking as well.

    What I’m rather confused about is that Hayek at the same time feels that everyone holds a concept of “innate laws” but when that person becomes a legislator, it is all the sudden perverted. An individual is corrupt due to the limits of human understanding but individuals are somehow are better? This contradiction is equally apparent in his free-market idealism…which is why, I think, WC has introduced him here :).

    [Hayek does not believe in “innate” laws or, I think, in “natural law”. You’re confusing “writing down what everyone knows” with “what everyone knows is innate”; and possibly with the idea that every culture shares the same “innate” laws. Hayek thinks that early cultures developed – different for each culture – norms and “rules of just conduct” that were then formalised into law -W]

  22. #22 JD Ohio
    2016/09/01

    Re: Comment 19 “You have separation of powers, no? The executive doesn’t enforce law, the judicial branch does -W”

    The sixth grade social studies explanation for separation of powers is that the President enforces the laws, Congress makes the laws and the courts interpret the law. This is simplistic but essentially correct.

    Courts are only supposed to get involved if someone files a case. So, if a judge sees illegal gambling, he doesn’t on his own, without a request, issue an order requiring the gamblers to appear in court. That is the prosecutor’s (part of the executive branch) job.

    Courts have virtually no staff and have no way to enforce their decisions. For instance, in Brown v. Bd of Education, the Supreme Court decided that segregation was unconstitutional. If President Eisenhower had not sent troops to Little Rock, Arkansas to enforce the decision, the decision would have been a nullity. Here is what Eisenhower said:

    “The very basis of our individual rights and freedoms rests upon the certainty that the President and the Executive Branch of Government will support and insure the carrying out of the decisions of the Federal Courts, even, when necessary with all the means at the President’s command.

    Unless the President did so, anarchy would result.

    There would be no security for any except that which each one of us could provide for himself…..

    A foundation of our American way of life is our national respect for law.” https://www.teachervision.com/civil-rights/resource/4316.html

    Basically, a court renders a decision and the executive has to enforce it. On a simpler level, if a person wins a monetary judgment in a breach of contract action, a court declares the amount of money owed. However, it is up to the winner to find assets of the defendant which can be seized to collect the judgment. The Court issues its ruling and does nothing further on its own to enforce its ruling.

    So, if for instance, a company declares that it will not hire female employees, it is not the job of a court to initially issue orders enforcing equal employment law. Someone with standing (a job applicant or an employee of the executive branch of the federal government) has to file an action in court. Then there would be a trial, and (in this case) the employer would be found liable for employment law violations. After that it is not the court’s job to enforce its own decision. One of the parties to the lawsuit would have to take action to insure that the court’s decision is obeyed.

    In this instance, Obama is obligated (under traditional law, which he is mostly ignoring) to make efforts to find people illegally in the US and then refer the cases to immigration courts which in appropriate cases would order the deportation (technically removal) of illegal entrants.

    JD

  23. #23 JD Ohio
    2016/09/01

    Here is Obama’s own description of executive powers from the White House website.

    ” The power of the Executive Branch is vested in the President of the United States, who also acts as head of state and Commander-in-Chief of the armed forces. The President is responsible for implementing and enforcing the laws written by Congress and, to that end, appoints the heads of the federal agencies, including the Cabinet. The Vice President is also part of the Executive Branch, ready to assume the Presidency should the need arise.

    The Cabinet and independent federal agencies are responsible for the day-to-day enforcement and administration of federal laws. These departments and agencies have missions and responsibilities as widely divergent as those of the Department of Defense and the Environmental Protection Agency, the Social Security Administration and the Securities and Exchange Commission.” See https://www.whitehouse.gov/1600/executive-branch

    JD

  24. #24 rconnor
    2016/09/01

    “Hayek thinks that early cultures developed – different for each culture – norms and “rules of just conduct” that were then formalised into law” – W

    I agree with that interpretation and I agree with Hayek there. However, the question is on what Hayek thought about the formalization into law.

    My impression is that Hayek treats this formalization process as something between a formality – “merely to state what Law was and had always been” (but this could be Hayek expressing the views of the law-makers, not himself) – to an opportunity to corrupt the law – his views on epistemology make him skeptical on any law-maker’s (or human’s, for that matter,) ability to understand human nature well enough to create just laws. He is quick to separate “nomos” (natural law) from “thesis” (legislation). Ultimately, in my opinion, he doesn’t appear to attach value to legislation and wishes to minimize it.

    This is grounded in his view on spontaneous order – that even outside of any formal control, order appears in human activities (i.e. the Free-Market!). So human societies naturally develop “rules of just conduct” without and sometimes despite legislation. This is what I mean by “innate” laws but perhaps it’s better to say an “innate” sense of justice.

    This is contrasted by Hobbes view that the natural state of humans is rather chaotic and unruly. Hobbes sees legislation as a requirement for a stable society.

    [No, sorry, this still isn’t really right. Hobbes view is that the possibly-imaginary “pre social contract” state of life is miserable; you know the famous quote. But that state doesn’t correspond to the pre-written-law state of Hayek; there’s already a “social contract” then. Of course all this is idealised and simplified -W]

    As is obvious, I side with Hobbes here. While legislation can, and has, resulted in the abuse of power, I feel the development of societies works in locked step with the development of the legal system. Legislation was an important and positive step in human history. They help cement our ideas of justice and “rules of conduct” as well as amend them as our understanding grows. To me, Hayek combines the magically thinking of the idealized free-market (i.e. that outside of regulation, consumers and producers will find a way to perfectly harmonize their selfish tendencies and live happily ever after) to the legal system (i.e. that with minimal legislation, the people’s innate sense of justify will be enough to perfectly harmonize their selfish tendencies and live happily ever after). I think human history, on both accounts, says otherwise.

    [I don’t think you’ve understood Hayek; what you’ve written isn’t a good paraphrase of his views. What I wrote here wasn’t intended to be an intro-to-Hayek; that’s still to come -W]

  25. #25 rconnor
    2016/09/01

    “[I don’t think you’ve understood Hayek; what you’ve written isn’t a good paraphrase of his views. What I wrote here wasn’t intended to be an intro-to-Hayek; that’s still to come -W]”

    I certainly could be misunderstanding Hayek. Of course another possibility is that we are misunderstanding what each other is saying about Hayek. It’s probably a bit of both (but more the former!).

    I look forward to what more you have to say on Hayek. It will be interesting to hear how you feel “Hayek does not believe in “innate” laws or, I think, in “natural law”” is compatible with his views on spontaneous order. Especially as central to Hayek’s views (on law, economics, sociology and politics) is the idea that order emerges without the need for formalized rules or governance because agents follow rules of conduct “while this consequence of observing these rules is wholly beyond their knowledge or intentions”. When you follow rules of conduct that are beyond your “knowledge or intentions”, I’d class those as “innate” rules of conduct or “innate” laws.

  26. #26 Marco
    2016/09/02

    JD Ohio probably does not even know (or care, even) that the policy about “sensitive locations” does not, in any way, offer people a way out of potential deportation. Other than that they would have to stay in those sensitive locations forever (which the people there must then allow), the directive makes it clear that those locations may still be entered if a supervisor gives clearance.

    Moreover, it also ignores that a rather similar “sensitive locations” policy was already in place under Bush Jr. See for example:
    http://library.niwap.org/wp-content/uploads/2015/IMM-Memo-SensCommLocations.pdf

  27. #27 JD Ohio
    2016/09/03

    Marco: ” probably does not even know (or care, even) that the policy about “sensitive locations” does not, in any way, offer people a way out of potential deportation.”

    Silly comment. It is one piece of the overall policy of Obama in letting in virtually anyone who can sneak in and stay for about 18 months. I never said that these people couldn’t be deported. They can be deported, but Obama is pretty much ignoring the law and not deporting them. Here is one summary:

    “A recent report from the Department of Justice shows that of the nearly 12,500 illegal alien adults who were apprehended with children at the U.S. border and released between July 18, 2014, and May 26, 2015, whose immigration cases have been completed, at least 84 percent did not appear in court for the final decision.

    The report states that 35,695 illegal alien adults with children were apprehended illegally at the U.S. border and were subsequently released without being detained between July 18, 2014 and May 26, 2015. Of these, 12,441 have had final rulings on their immigration cases.

    About 11,516 of these adults were given orders of removal by an immigration judge. Among these, 10,436 — about 84 percent of the total number of completed cases — were ordered removed in absentia, meaning they did not show up to court as scheduled.”

    Additionally, the border patrol link that I noted was directed at illegal entrants. It appears that your reference to the Bush policy was an internal directive directed to enforcement agents, not a public declaration to illegal entrants telling them where they would be safe. The worst part of the public announcement was that illegal entrants were to be protected at public demonstrations and at courthouses, which went well beyond Bush’s apparently internal policy.

    JD

    I would add that I strongly support legal immigration and have had 2 Chinese wives (first deceased) who received green cards through me. I am strongly opposed to the de facto open borders policy that Obama is currently following.

    JD

  28. #28 Marco
    2016/09/04

    “Additionally, the border patrol link that I noted was directed at illegal entrants.”

    No, it isn’t. This: https://www.cbp.gov/border-security/sensitive-locations-faqs
    is just a FAQ. Do you seriously believe that illegal entrants go on the CBP website to read what their policies are? Even better, go the cbp website and try to find it. You have to be looking at the right place at the right time to even notice it. And those who could inform the illegal entrants of the policies more than likely also knew the policies under Bush. Especially since also Bush’s policy was nothing new, with a memo from 1993 also showing the same (just not called “sensitive locations”). It’s been standard policy. Obama may have added public demonstrations as a sensitive locations, but…

    “illegal entrants were to be protected at public demonstrations and at courthouses”
    Errr….no. There’s no “protection” at courthouses nor public demonstrations either. There’s a policy in place that says to be very, very careful before doing any actions at demonstrations, which, if you think about it, makes complete sense. Just imagine the border patrol or similar agency disrupting demonstrations to find out whether there are any illegal entrants. Well, that’s what they say, anyway.

    “It is one piece of the overall policy of Obama in letting in virtually anyone who can sneak in and stay for about 18 months”

    Another example of confirmation bias. There is no such policy, you know it, but decide to call it that anyway, because you want even stricter control.
    The numbers you cite also do not provide any evidence whatsoever of there being such a policy.

  29. #29 JD Ohio
    2016/09/05

    Marco: “Do you seriously believe that illegal entrants go on the CBP website to read what their policies are?”

    Of course I do. This is important information for people who are here illegally to plan their future. Even if the average illegal entrant couldn’t perform a google search (not what I believe but apparently what you believe), illegal immigration activists are undoubtedly spreading the information, which is the whole point of the FAQs.

    Your claim that Obama is seriously enforcing immigration law is totally unsupported. Obama’s former acting director of ICE stated “the Obama administration position succinctly: “If you are a run-of-the-mill immigrant here illegally, your odds of getting deported are close to zero.” See http://truthfeed.com/how-obama-encourages-illegal-immigration/3169/ This article cites many other facts showing the severe decline in enforcement under Obama.

    It also describes his unconstitutional transformation of the law passed by Congress stating:

    “The Obama administration has embraced a radical new approach to immigration law. It has, without the consent of Congress, transformed violation of immigration law into a “secondary offense.” That is to say, the goal is to ensure that an alien faces consequences for breaking immigration law only if he also breaks some other, “real,” law involving, say, violence or drug dealing.”

    I will not be responding to your silly uninformed comments any more. You are welcome to have the last word.

    JD

    [Ah, the good old “flounce out”. Just make sure you stick to it – I don’t want this thread to turn into pro/anti immigration which appears to me to be largely irrelevant -W]

  30. #30 Phil Hays
    Is this election over yet?
    2016/09/06

    “Your claim that Obama is seriously enforcing immigration law is totally unsupported.”

    Other than by the facts, of course. And like most things, it is complex.

    https://newrepublic.com/article/117412/deportations-under-obama-vs-bush-who-deported-more-immigrants

  31. #31 Marco
    2016/09/06

    1. I never said that “Obama is seriously enforcing immigration law”
    2. Do you have any less obviously anti-Obama+Clinton/pro-Trump websites for information about illegal immigration and what Obama did?
    Hint: websites called “truthfeed” hardly ever live up to their name
    3. Are you seriously so dumb to think that those who help illegal immigrants do not already know the sensitive locations policy, in place since *at least* 1993?

    Note also that I never claimed that Obama is seriously enforcing immigration law; however, I can note here that I know he spent quite a lot of money, more even than Bush, on Border Patrol, even though illegal immigration has gone significantly down (the two are related, but there are many other factors as well).

  32. #32 rconnor
    2016/09/06

    WC,

    I spent some time reviewing our interpretations of Hayek and I think I might understand the source of our misunderstanding.

    The fault lies with my (mis)use of the term “innate”. It was a terrible term to use because it can mean, as I think you are (correctly) thinking, almost the exact opposite of what I meant it to mean. My use of “innate” was meant to mean something not fully rationally understood or subconscious that has nevertheless been with a group for a long time (i.e. the hereditary use of “innate”). Whereas I think, especially in this context, “innate” could mean something derived by rationalization, not experience (i.e. the rationalist/anti-rationalist use of “innate”). As this is really just a rationalist vs anti-rationalist debate, my (mis)use of the term has definitely lead to us talking past each other.

    I just wanted to acknowledge my mistake.

    (…but I still think I’m justified in saying that Hayek, based on his anti-rationalist stance, sees legislation (i.e. the rationalization of law) as offering little value to a system of law or, at the very least, given undue credit. The following link provides a good overview on his anti-rationalist stance and how it influences his views on institutions.)

    https://home.isi.org/hayek-role-reason-human-affairs

  33. #33 David B. Benson
    United States
    2016/09/06

    Rconnor — That was an interesting link.

    There is also the Stanford Encyclopedia of Philosophy entry on Hayek.

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