Law is custom

IMG_20230620_105541_769 I have frequent need to say "law is custom" and yet the post I use to link those words to - Hayek vs Hobbes and the theory of law - isn't the right one, even if it is in the right direction. What I want is a more explicit reference to James Coolidge Carter's "Law: Its Origin Growth and Function". I recommend that you read it.

In summary: law as opposed to legislation is primarily custom not command; and exists so that the reasonable expectations of reasonable people might be upheld, and violence be prevented; not to deliver Great Justice.

To pad this out, I'll quote some Hayek from my previous post: 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... 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... 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... 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.

Hayek doesn't say where he got his ideas from; perhaps he regarded it as a commonplace; but likely it came from Carter.

Downdate: what I wrote in 2018

I knew I'd written this stuff before, and indeed I did; here's a draft from 2018:

Law: its origin, growth and function is a "course of lectures prepared for delivery before the Law School of Harvard university" by James Coolidge Carter, 1827-1905. Unless you are a powerful legal scholar - in which case, welcome - you will benefit from refreshing your memory of Hayek vs Hobbes and the theory of law for context before reading here further. My interest here is largely in where Hayek's ideas came from, and my answer will be Carter. For those who didn't follow my refreshing advice, I will remind you of Hayek's 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.

I know what happened: I got that far, and intended to actually review the book, having finished reading it, but alas the re-read required never happened.



Tom said...

That's a somewhat cryptic comment to an excellent post.

William M. Connolley said...

Aie... just testing. The reason is: Blogger won't send me notifications by default. I have found that the only way to get them, is to make a comment and ask for follow-up, and then delete the comment... which I now have done.

Tom said...

Not sure I believe you. I think you just signaled for the invasion. It wasn't cryptic--it was crypto.


Custom as Law at Harvard self-terminated in 2018 when the Woke Faculty majority awakened to the fact that Harvard's Charter of 1650 was still in place, like the quotations from various Calvinist worthies still carved in stone overlooking faculty meetings in Sanders Theater, along with memorial plaques for fallen Confederate and Yankee alumni alike.

Whereupon, without public consultation, the Board of Overseers agreed to rescind the charter that created it, and the New Model Harvard was announced at its incoming Presidents inauguration. The Law School has yet to address what abrogating university charters does to matriculation oaths, let alone bequests older than the Constitution of the United States.

This all was a long time coming—

William M. Connolley said...

I don't see it in the inaugural address, which just seems to be the usual meaningless blather.


I was there. Before the Inaugural address, the Harvard Corporation and Overseers presented President Bacow with he already defunct Charter and seal of 1650, and declared him to be its President to serve at their pleasure,

For the first time in 392 years, no oath was administered or taken.