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Source link: http://archive.mises.org/10838/another-problem-with-legislation-james-carter-v-the-field-codes/

Another Problem with Legislation: James Carter v. the Field Codes

October 14, 2009 by

There is a fascinating paper published in 1884 by James C. Carter, The Proposed Codification of Our Common Law: A Paper Prepared at the Request of The Committee of the Bar Association of the City of New York, Appointed to Oppose the Measure. This paper was an attack on David Dudley Field’s attempt to (legislatively) codify New York’s common law. Carter opposed replacing case law with centralized legislation. Carter notes that caselaw precedents are flexible and allow the judge to do justice (see also John Hasnas’s classic The Myth of the Rule of Law), while statutes are applied literally, even where injustice is done or the legislator did not contemplate this result. Thus, Carter argues, one of the worst effects of legislatively codifying law–replacing organically developed law with artificial statutes–is that it changes the role of courts and judges from one in which the judge searches for justice into mere squabbles over definitions of words found in statutes. As he said at pp. 86-86:

At present, when any doubt arises in any particular case as to what the true rule of the unwritten [i.e., judge-found, common-law developed] law is, it is at once assumed that the rule most in accordance with justice and sound policy is the one which must be declared to be the law. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle. The contention is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched exchange for the manly encounter upon the elevated plane of principle!

For more on problems of legislation, and discussion of legal codes and codification efforts, see my Legislation and the Discovery of Law in a Free Society; and the articles collected here; also my posts Book Recommendations: Private, International, and Common Law; Legal Theory and The UN, International Law, and Nuclear Weapons.

In particular, for further related commentary, see my Legislation and the Discovery of Law in a Free Society, e.g., note 78 and related text, which reads (edited here):

See Peter H. Aranson, Bruno Leoni in Retrospect, at 675. See also Lawrence M. Friedman, A History of American Law, p. 404 (discussing James Carter’s view that legislated “[c]odes impaired the orderly development of the law; they froze the law into semipermanent form; this prevented natural evolution. . . . A statute drafted by a group of so-called experts was bound to be an inferior product, compared to what centuries of evolution, of self-correcting growth, could achieve. . . . [T]he social and economic legislation of the late 19th century . . . were doomed to failure; they were hasty intrusions, and they contradicted the deeper genius of the law.”); and Bruce Benson, The Enterprise of Law, p. 282 (“public production of law undermines the private property arrangements that support a free market system”). An interesting discussion of, inter alia, the debate on whether to legislatively codify the common law is found in Mark D. Rosen, “What Has Happened to the Common Law?–Recent American Codifications, and Their Impact on Judicial Practice and the Law’s Subsequent Development,” 1994 Wis. L. Rev. 1119 (1994).

For further discussion of Leoni’s ideas in this regard and related issues, see Gottfried Dietze, The Necessity of State Law, in Liberty and the Rule of Law, supra note 36 (ch. 3, p. 74); Gordon Tullock, “Courts as Legislators,” in Liberty and the Rule of Law (College Station, Texas: Texas A&M University Press, Robert L. Cunningham ed. 1979); Giovanni Sartori, Liberty and Law, and chapter 13 of idem, Democratic Theory; Leonard P. Liggio, “Law and Legislation in Hayek’s Legal Philosophy,” 23 Southwestern U. L. Rev. 507 (1994); Murray N. Rothbard, “On Freedom and the Law,” New Individualist Review (Winter 1962, vol. 1, no. 4) 37 (reviewing Leoni, Freedom and the Law).

{ 6 comments }

whittaker October 15, 2009 at 8:53 am

I’ve long felt that the concept of “general police power” of the legislature is inappropriate. The powers of the legislature should be sharply circumscribed, and perhaps divided among separate specialized bodies (i.e. legislative committees should be made into separate standalone entities).

Furthermore, any bill passed by the legislature should be merely a recommendation, and should not have the force of law until ratified by a citizen referendum. And there should be an automatic 10-year sunset provision in every law to allow it to be reconsidered periodically.

Collier October 15, 2009 at 9:18 am

Why no mention at all of the citizen ‘jury’ in applying justice & law {??}

That is a huge error in this article.

Modern codified law has lots of problems, but granting even more autonomous power to government legal bureaucrats {“judges”} just makes thing much worse for justice and the citizenry.

If judges/juries have any reasonable doubt at all about the meaning of a specific codified law — the proper & just action is to completely dismiss any and all indictments initiated under that “law”.

Any law, statute, or regulation that a court judge cannot readily understand and apply… is, by legal definition, grounds for immediate dismissal. Vague laws automatically trigger “reasonable doubt” on their meaning, and bar any convictions.

If legislators cannot clearly state their requirements in specific legal codes, then such codes are instantly void… and the judicial branch is obligated to reject them in practice. Judges absolutely do NOT have the authority to interpret, re-write, repair, band-aid, create or guess at the meaning of vague laws.

Sloppy work by legislators is unacceptable in a fair & just “Justice” system.

whittaker October 15, 2009 at 9:21 am

A statute drafted by a group of so-called experts was bound to be an inferior product, compared to what centuries of evolution, of self-correcting growth, could achieve

BTW, this is exactly what I was saying back in the thread about corporations. I was arguing against statutory corporation laws, and you kept trying to drag me into a discussion about the common law of vicarious liability, which I didn’t care about.

Please see:

http://blog.mises.org/archives/009070.asp

and scroll down to my comment at December 9, 2008 12:37 PM.

Stephan Kinsella October 15, 2009 at 10:05 am

Collier: “Why no mention at all of the citizen ‘jury’ in applying justice & law {??}

That is a huge error in this article.”

What article are you talking about? This is a blog post. But in the article I linked, my Legislation article, p. 176, I specify: “Other provisions that could help to limit the dangerous effects of having a legislature include a line-item veto by the executive branch, and sunset provisions that automatically repeal legislation unless reenacted
after a given number of years. Another useful prophylactic measure would be an absolute right to jury trials in all cases, civil or criminal (so that government could not escape the jury requirement by calling truly criminal sanctions “civil”), in which the application of a statute is involved. This should be combined with a requirement that the jury be made aware of their right to judge the law’s validity as well as the defendant’s liability or guilt.129″

“Modern codified law has lots of problems, but granting even more autonomous power to government legal bureaucrats {“judges”} just makes thing much worse for justice and the citizenry.”

This is just an assertion; but in any event my writing is clear that I prefer a totally decentralized, non-state system. The judges I am talking about are not government employees.

“If judges/juries have any reasonable doubt at all about the meaning of a specific codified law — the proper & just action is to completely dismiss any and all indictments initiated under that “law”.”

This is incoherent thinking.

“Any law, statute, or regulation that a court judge cannot readily understand and apply… is, by legal definition, grounds for immediate dismissal. Vague laws automatically trigger “reasonable doubt” on their meaning, and bar any convictions.”

I think you have no idea what you are talking about.

whittaker: “A statute drafted by a group of so-called experts was bound to be an inferior product, compared to what centuries of evolution, of self-correcting growth, could achieve

BTW, this is exactly what I was saying back in the thread about corporations. I was arguing against statutory corporation laws, and you kept trying to drag me into a discussion about the common law of vicarious liability, which I didn’t care about.”

None of us corporate-defenders are in favor of state statutes protecting it. We in fact argue that corproations could arise by operation of private contract law on a free market.

mike October 15, 2009 at 10:35 am

Excellent post. I have been wanting to see more on common law and LvMI comes through once again!

Stephen: This may be deeper in your sources, but can you post how Hayek’s LLL fits in this?

Michael A. Clem October 15, 2009 at 2:36 pm

Good stuff. As I’ve been saying for some time now, common or customary law is a process, not a set of rules. Adoption of common law precedents by an authoritarian legal system simply adopts what has been developed up to that point, but not the process itself, ensuring stagnation, and ultimately, injustice.

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