One presumption of a lawful society is that citizens are able to know the law so they can avoid breaking it. That has become impossible, thanks to the unquenchable thirst government has for creating new ones.
Regulations, which carry the force of law without all that pesky business about requiring a vote for them by elected representatives, are even more of a threat to liberty, this Administration being especially guilty of overkill.
In order to thrive together, groups of people need some type of cohesive structure. From the smallest tribe to the largest nation, rules exist to grease the interactions among members of a group. However, those rules need not be handed down from an authority.
Some rules are unspoken, such as the covering of certain body parts in public. Though some jurisdictions have passed no-nudity laws, it is noteworthy that on many occasions, people parading around in the buff cannot be prosecuted because no law existed at the time prohibiting it. No one thought it necessary.
Other rules are less trivial, such as which side of the road to drive on:
Some historians, such as C. Northcote Parkinson, believed that ancient travelers on horseback generally rode on the left side of the road. As more people are right-handed, a horseman would thus be able to hold the reins with his left hand and keep his right hand free—to offer in friendship to passing riders or to defend himself with a sword, if necessary.
The first legal reference in Britain to an order for traffic to remain on the left was in 1756 with regard to London Bridge. The Highway Act 1773 contained a recommendation that horse traffic should remain on the left and this is enshrined in the Highway Act 1835.
In the late 18th century, the shift from left to right that took place in countries such as the United States was based on teamsters‘ use of large freight wagons pulled by several pairs of horses. The wagons had no driver’s seat, so a postilion sat on the left rear horse and held his whip in his right hand. Seated on the left, the driver preferred that other wagons pass him on the left so that he could be sure to keep clear of the wheels of oncoming wagons. He did that by driving on the right side of the road.
It is noteworthy that it was the 1700’s before anyone in England thought it necessary to state the obvious in a statute. Yet people traveled with relative ease, at least as regards which side of the road to use.
From the English, we inherited what is known as common law. Whereas we think these days of law as being something a legislature writes, common law emerges from the decisions of judges or tribunals. Decisions are based on precedent where possible, the theory being that it is unfair to apply different rulings in similar cases. The advantage of common law is that the law evolves smoothly and generally avoids the sharp breaks in custom that occur when legislatures write new law.
Another advantage of common law is that it emerges more or less spontaneously from the countless interactions among people of a certain area. There is a tremendous advantage to all when “rules of engagement” with one another are understood and form the basis for proper conduct. In cases where a dispute occurs, common law, at least in theory, gravitates toward previous understandings of similar cases. Thus it is rigid enough to provide structure but malleable enough to adjust to changing circumstances and evolving customs.
I do not advocate common law as the only proper basis for a judicial system, but I do have a point here. Laws are good–when they serve the good of the people who must function under them. When they emerge naturally from everyday people in their natural environments, they tend to serve their purpose well and remain few in number. When they are propagated by a body of people whose career it is to tell others what to do and to distribute favors to constituents, laws become silly and abusive. Soon we have so many laws on the books that no one can know even a small portion of them.
We also find ourselves in needless spats over things that should evolve of their own accord. Marriage is a good example. Common law marriage has different meanings in different places all over the world, but the common theme is that when two people hold themselves out to the world as being married by, say, living together openly for an extended period of time, then they are married. Recognition of same-sex marriages need not be a matter of legislatures deciding anything. Our culture has evolved so that many people don’t think twice about the legitimacy of gay couples. Common law would evolve to take those changes into account.
So how do we push back the tide of useless and perverse law? By increasing our sensitivity to being pushed around. In our public discourse, let us question openly the need for intrusive legislative bodies to settle every disagreement with a law or a regulation. Gradually, we will build a society that relies more on its own shared understanding of civil behavior and less on career busybodies. We will be the better for it.