This post continues live blogging Dworkin’s Law’s Empire, picking up after the latest post.

Let’s begin with two quotes. First is from David Friedman’s Law’s Order:

You live in a state where the most severe criminal punishment is life imprisonment. Someone proposes that since armed robbery is a very serious crime, armed robbers should get a life sentence.

A constitutional lawyer asks whether that is consistent with the prohibition on cruel and unusual punishment. A legal philosopher asks whether this is just.

An economist points out that if the punishments for armed robbery and for armed robbery plus murder are the same, the additional punishment for the murder is zero — and asks whether you really want to make it in the interest of robbers to murder their victims. (8)

Second, a point made by Mises I already blogged on, namely that any unified and coherent “government policy” under our massively interventionist system long ago disintegrated.

Now positive law made by the legislature (as opposed to natural law) will apply to at least two areas: (1) rules governing the use by the public of government properties and (2) punishments for crimes. If we admit that government should also set economic policy, however limited its power there we as libertarians want to see, then this will be the third aspect of human affairs where positive laws will be in force.

Whatever area we pick, however, as Friedman and Mises make profoundly clear, positive laws constitute a coherent and complex system in which every part depends on, conditions, and influences every other part — or at least are supposed to do just that. It’s a system that is ideally balanced so as to promote human happiness most efficiently.

This system is made via a deliberative process, perhaps even by the entire citizen body in a town meeting. The lawmakers have the entire system in view and seek to fine-tune it appropriately.

A judge, quite on the contrary, has only a single case before him on which he is supposed to rule. He has no vision of the entire legal system, however high his personal IQ is. This focus on one case makes the judge narrow-minded, unable to determine how his decision will affect the entirety of the legal system. If he by his own fiat proclaims what is best (e.g., “least inefficient practice or the fewest occasions of injustice in the future” (163)), he risks ignorantly upsetting and unbalancing the legal code as a whole.

A judge is uniquely qualified to decide on natural law, i.e., basic morality made difficult in hard cases yet matched and able to be discerned by the judge’s wisdom.

But the overall legal system cannot lie within his purview by virtue of the limitations on any one man’s intellect and absence of essential-for-positive-lawmaking data presented to him, such as people’s ideologies and interests.


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