Destaque

LEGISLATION AND THE DISCOVERY OF LAW IN A FREE SOCIETY
N. Stephan Kinsella*

I. Introduction ....................................................... 134
II. Centralized and Decentralized Legal Systems ................ 135
A. Civil Law and Common Law .......................... 135
B. Civil Law, Rationalism, and Libertarianism ......... 137
III. Law, Legislation, and Liberty ................................. 140
A. Anarcho-Capitalism ..................................... 140
B. Certainty .................................................. 141
1. Certainty, the Rule of Law, and Legislation 141
2. Decentralized Law-Finding Systems ......... 144
a. Limits of Courts’ Decisions:Jurisdiction, Scope of Decision,and Precedent ...................... 144
b. Government Courts:Extra-Market Powers andDisguised Legislation ............ 146
3. Civil Codes ...................................... 148
a. The "Special" Status of a Civil Code 148
b. Diluting Effect of SpecialStatutes ............................. 149
4. Negative Effects of Uncertainty ............... 150
a. Sanctity of Contract .................... 150
b. Time Preference and theStructure of Production ........... 151
c. Time Preference and Crime ............ 153

C. Central Planning and Economic Calculation .......... 154
1. Central Planning and the Impossibilityof Socialism ................................. 154
2. Legislation as Central Planning ................ 157
3. Special Interests and the UnrepresentativeCharacter of Legislation ................... 160
4. Decentralized Law-Finding Systems ......... 162
D. The Proliferation of Laws .............................. 163
IV. Naive Rationalism and The Primacy of Legislation ......... 166
V. The Role of Legislation and Codification ..................... 169

A. The Role of Legislation ................................ 169
1. The Secondary Role of Legislation .......... 169
2. Alleged Deficiencies of DecentralizedLaw-Finding Systems .................... 170
3. Structural Safeguards to Limit Legislation .. 174
B. The Role of Commentators and Codes ............... 176
VI. Conclusion ...................................................... 180

Algumas passagens que destaco:

1) "Because the classical common law and Roman law developed the large bulk of their legal principles through the decision and discussion of cases, they serve as rough examples of decentralized systems of "judge-found" law, as do largely private customary law systems like the Law Merchant.4

Unlike Roman law and the common law, however, modern civil law principles are embodied in a statute called a Civil Code, and the civil law enshrines legislation as the primary source of law.5 The modern civil law is thus a good example of an explicitly centralized legal system, even though much of the substantive provisions of civil codes are based on legal principles discovered in decentralized fashion in Rome many centuries ago. Roman law thus has more in common with the common law and customary law than with the Roman law’s offspring, modern civil law, since the former were decentralized law-finding systems, while the latter are centralized, legislation-based law-making systems.6 Today’s common law, while based on the classical and mostly decentralized Anglo-American common law, is also coming to be more and more dominated by legislation, and, to that extent, is gradually being centralized as well. "

2) Under the libertarian conception of individual rights, the virtues typically cited in favor of the civil law are certainly necessary requirements of a just legal system. The virtues of economic liberalism, private property, freedom of contract, individualism, natural law, and justice, are really only secondary derivations of the basic individual rights to person and property. Natural law is nothing more than the objective truth that each individual has certain rights — i.e., to own himself and to homestead unowned property. Justice is nothing more than giving a person his due, but what a person’s “due” is depends upon what his rights are. Individualism has meaning and validity, because it is individuals that have rights. Economic liberalism, private property, and freedom of contract are only the playing out of the fact that individuals have a right to own, and thus trade, private property, and indeed have a right to do anything that is not coercive."

3) Certainty, which includes clarity and stability in the law, is a necessary feature of any just legal order, as it is a crucial component of the rule of law itself. “The rule of law” is a phrase that is used with varying meanings: “(1) the absence of arbitrary power on the part of the government to punish citizens or to commit acts against life or property; (2) the subjection of every man, whatever his rank or condition, to the ordinary law of the realm and to the jurisdiction of the ordinary tribunals; and (3) a predominance of the legal spirit in English institutions . . . .”25 The rule of law is necessary because a government with arbitrary power to inflict violence on its subjects is a standing threat to individual liberty.(...)Yet, as Leoni points out, there is much more certainty in a decentralized legal system, than in a centralized legislative system. When the legislature has the ability to change the law from day to day, we can never be sure what rules will apply tomorrow.

4) By contrast, judicial decisions — whether by private arbitrators in an anarcho-capitalist society or by judges in a governmentestablished common-law system — are much less able to reduce legal certainty than is legislation. This is because, as Leoni explains, the position of common-law or decentralized judges "is fundamentally different from that of legislators, at least in three very important respects.":

First, judges can only make decisions when asked to do so by the parties concerned.
Second, the judge’s decision is less far-reaching than legislation because it primarily affects the parties to the dispute, and only occasionally affects, third parties or others with no connection to the parties involved.(...)
Third, a judge’s discretion is further limited by the necessity of referring to similar precedents. This does not necessarily mean that a judge is automatically bound by a prior judicial decision on similar facts, but that at least such precedents are influential. When law is viewed as being found rather than made, it makes sense that one court would refer to principles already discovered and developed over the centuries by other judges.

5) Yet increased uncertainty causes an increase in time preference rates. With the very possibility of legislation, the future is made more unpredictable than it would be without the possibility of legislation. Future goods are always less desirable to individuals than present goods. But if the future becomes more unpredictable, future actions and goods become less certain to occur, and thus future goods become relatively even less desirable, and present goods therefore become relatively more desirable.

As explained by Hoppe, [T]he mere fact of legislation — of democratic law-making — increases the degree of uncertainty. Rather than being immutable and hence predictable, law becomes increasingly flexible and unpredictable. What is right and wrong today may not be so tomorrow. The future is thus rendered more haphazard. Consequently, all around time preferences degrees 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 promoted (for if there is no immutable standard of ‘right’, then there is also no firm definition of ‘crime’).57

6) In a free market, in which there is by definition private ownership of property, the free exchange of goods by individual human actors in accordance with their subjective utilities establishes relative prices, in terms of money (which historically was gold and other precious metals). These money prices are the indispensable tool of calculation for rational coordination of scarce resources, since “monetary economic calculation is the intellectual basis of the market economy.”65 Without market prices, how can a central planning board know what or how many products to produce, with which techniques and raw materials, and in which location?(...)
In the words of Mises, “Where there is no market there is no price system, and where there is no price system there can be no economic calculation.”68 “The paradox of ‘planning’ is that it cannot plan, because of the absence of economic calculation. What is called a planned economy is no economy at all.”

7) The legislator, like a communist central planner, can only grope in the dark. (...) Further, not only can legislators not know the actual situation of the individuals they intend to cast their legislative net over, but they cannot predict the often far-reaching effects of legislation. Legislation routinely has unintended consequences, a fact that cannot be gotten around since it is necessitated by the systematic ignorance that legislators face.72

The ultimate reason that the legislator and central planner are both ultimately doomed to failure is that "there is more than an analogy between the market economy and a judiciary or lawyers’ law, just as there is much more than an analogy between a planned economy and legislation."73 There is "more" than an analogy because legislation and central planning are really the same thing: coercively-backed commands emanating from the government that order individuals to act in certain ways that the government prefers.

8) A crucial reason for the systematic ignorance of central planners and legislators alike is “the decentralized, fragmentary character of knowledge.”76 This makes central planners and central law-makers systematically unable to ever have enough knowledge to make informed decisions that affect entire economic or legal systems. Moreover, not only is a central planner “unable” to gather information only present in a dynamic price structure, but the attempt to plan actually destroys the price structure because the private property system at the base of a price structure is outlawed. Similarly, not only does a legislator face a severe ignorance problem — he could never hope to have a comprehensive and continuallyupdated view of all the interactions, rules, relationships, and customs that exist among the people — he also subverts the very spontaneous legal order that would form in the absence of legislative interference.

9) As Professor Aranson puts it, "Legislation saps the social order of spontaneity."78
Just as a decentralized, free market economy is essential to the coordination of resources and the production of wealth, so a decentralized law-finding system is a prerequisite to allowing true Law to develop. This does not guarantee that the law will be just — there are no guarantees — but at least it is possible in a decentralized law-finding system, while in a legislated system it is not.

10) Conclusions: (...) Both the Roman law and common law have been corrupted into today’s inferior legislation-dominated systems. The primacy of legislation should be abandoned, and we should return to a system of judge-made law — a private system, ideally, but in the direction of systems like the old common law and Roman law, at least. Scholars who codify naturally-evolved law have a vital function to serve, but they should not ask for the governmental imprimatur on their scholarly efforts. Ultimately, the form of a legal system does not guarantee that just laws will be adopted. We must always be vigilant and urge that individual freedom be respected, whether by legislator or judge.