From my C4SIF post:
Ideally law ought to be developed in a decentralized fashion by judges, juries, arbitral tribunals applying developed legal principles based on libertarian ideas about justice and property rights, to new disputes and fact situations. ((See my articles “Legislation and Law in a Free Society” and “Legislation and the Discovery of Law in a Free Society.”)) This was the basic model of the two grand legal systems in history: the Roman law, and the English common law. Better yet if the state were not involved, but in any case, an decentralized, caselaw, organic system is to be preferred.
But we have a system now dominated by legislation, by statutory law. The Roman law was codified legislatively by Napoleon and others, resulting at first in elegant civil codes enacted by legislation and backed by the force of the state. This enshrined legislation as the supreme source of law–legal positivism. ((See my post Logical and Legal Positivism.)) These are the continental legal systems, the so-called civil law. In the meantime even the relatively propertarian and elegant civil codes have been swamped by a deluge of inelegant artificial and special-interest favoring legislation. Meanwhile the English common law has also been gradually submerged in a flood of English statutes. The US English-influenced common law system has also become steadily dominated by state and federal statutes. This should be no surprise given that the fount of our law is the Constitution, itself nothing but a statute, a piece of legislation. Sure, the Constitution as legislation is broader and more general and aspirational than most modern specialized statutes, which means that it is vague and ambiguous and subject to arbitrary interpretation–and since it is the state’s courts that interpret it, this means that it will be construed over time to grant more and more power to the state. ((See John Hasnas, The Myth of the Rule of Law.)) Don’t fool yourself: the Constitution is nothing special, and is not libertarian. It’s just a cover for a centralizing power grab. ((See Rockwell on Hoppe on the Constitution as Expansion of Government Power.))