14 October 2010

Legislation: the Anarchist Critique

Today I read Stephan Kinsella's article Legislation and the Discovery of Law in a Free Society and I'd like to share it with my readers. The principal distinction Kinsella (and other anarchists and natural law theorists) make is between law discovered and applied to cases by judges, and 'law' that is enacted by a legislature. Kinsella provides a good coverage of the following issues:
  • Common law and civil law legal systems -- similarities and differences
  • Codification and commentaries of the law
  • The disadvantages of legislation and how these disadvantages might be mitigated
  • Evolution and correction of the law
  • Judicial services, including different legal rules, as potentially private and competitive services/products
  • Theoretical problems with legislation (public choice theory, socialist calculation debate analogy etc.).
I recommend this article for my readers who are interested in exploring alternative social institutions and the libertarian perspective on the law. His work against 'intellectual property' is also very good and what he is best known for.

The only drawbacks of Kinsella's article, in my opinion, is the reductionist moral-legal theory that everything comes back to property rights and self-ownership, that is common in libertarian writings. I see this approach as inappropriate and inadequate to deal with important social issues such as family law and economic torts (e.g. defamation). I believe the natural law/common law tradition is richer and better than some libertarians give it credit for.

2 comments:

Darren Rickard said...

I was recently in court over a complicated IVF case. There was no statue law to cover our case but the judge decided to grant us our argument because essentially it was the moral and right thing to do.

I agree with the private property rights thing. It would have helped us if we could have used such an argument.

Basic private property rights should be upheld above all else.

David Hillary said...

Sounds interesting Darren. I'd love to hear more of the principle used in this case.