I see two differing visions in this case about how law shall be made.

On the one hand, I’d like to side with Rothbard and argue that all or almost all of positive law is junk, harmful to society, and as to natural law, it is precisely the judges who should “discover” it. Now everyone is more or less aware of natural law (such as “you shall not kill”), but the basic commandments’ elaborations should be entrusted to those who are wise. And wisdom is the proper trait precisely of a judge.

A cynic, however, may point out that whenever a real living and breathing judge legislates, he seems to pull his favored law out of his ass, law that is both arbitrary and bad.

On the other hand, I’d like to preserve the sovereignty of the people to govern themselves rather than have a small elite of judges rule them. Law, including custom, in all its complexity should be what the people find convenient and expedient to live by.

Again, however, our cynic will whisper that it is tyranny of the majority for the people to be bound by no higher law that what they find suitable to their fancy to concoct. “You shall not steal” is no joke, and even the legislature is unable, when all is said and done, to repeal this higher law by which all of mankind is bound. But it was precisely the superhero judge Moses who gave this particular law. Shouldn’t we imitate him?

There are dangers of abuse of both the discovery of natural law by the natural aristocracy and creating positive law by the masses of common people. How to guard against both?

This discussion centers on the best procedures for lawmaking. I argued that neither is beyond the pale. Could this be one subtle rationale behind “checks and balances”?

That point aside, in the Elmer’s case, I would probably side with the majority view, because the natural law discovered and asserted by the judges, namely that “no one should profit from his own wrong,” seems to me to be correct.


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