Wednesday, December 27, 2006

pseudos etumos-logos

Wherein I pretend to dabble in the dark arts of etymology, I tend to discover inner meaning when there really isn't any. For example, a common slur against Iranian Jews is to stereotype their frugality. Hence, the term parsimony has special meaning to me as it may be broken down to the [false] roots 'parsi' + 'mony', 'Parsi' being the Hebrew word for "Persian".

Another such example would be to relate the word "Hasidic", which in its original Hebrew sense did not depict a Jew wearing a funky hat, curly sidelocks and a black frock. Instead, in Mishnaic terms it referred to a person who refrained from the pleasures of the world, choosing to live the most basic, ascetic life.

Where am I going with this? Well I wanted to devise an explanation for the division of man-made law into two categories:

1) common law
2) private law

The difference between the two is lies in it's origination. I reckon that the typical origination of common law was a spontaneous arrangement of acceptable, universalized principles which civilized society could easily agree to, such as prohibition against murder, enslavement and robbery. These are such prohibitive laws that from the viewpoint of the individual are obvious (since the prohibited action is clearly harmful to another party), and need not to be instilled for one to be aware of them (and I stop short of referring to these as 'natural laws'.)

Private law, or positive law on the other hand, is comprised of laws which are many times non-obvious, and therefore to be known must be learned (although one will be found guilty in unknowing transgression, since ignorance of the law is not an excuse.) The law's prohibited action might be seemingly or truly harmless, and one might be found guilty in the nebulous sense of committing a "crime against society". These laws, even if well-intentioned, will favor the interests of a private few, required active legislation to define them, coercion to gain their employ, and in effect lead to the breakdown of, and de-civilize society.

R.A.W. (and R.S.) said it squarely, or rather, Hagbard Celine did:

PRIVILEGE: From the latin privi, private, and lege, law. An advantage granted by the State and protected by its powers of coercion. A law for private benefit.

With this historical background, we can better grasp the typical hurdle often encountered by many an anarchist in the conflation of these two types of law. It is the difference between the two law types that anarchists object to when they object to rulers, but not rules.

What anarchists may or may not realize, privilege-private laws are those "rules" which beneath the print are just rulers disguising themselves in the rubric of rules in order to demand obedience and/or enslavement. These pseudo rules do not arise from conflict-reducing norms, and in fact create more conflict.

Private laws are those which anarchists are most confident will not arise in a market-anarchy, whilst the common law they hope will be rigorously obeyed, whether out of a sense of common decency (in my belief), or because of an expectation that the market institutions will have a much better replacement to the state's pathetically useless enforcement agencies.

1 comment:

quasibill said...

I've been down the same path, but I think the better distinction is the one you hit on near the end - does the law tend to resolve conflict peacefully, or does it create conflict? If I'm not mistaken, Hoppe and Kinsella use just such reasoning in defending private property rights - although I think they probably try to do too much with the concept.

While the basics (murder, assault, etc.) are nearly universal and objective in nature (though not totally!), and therefore fairly conflict avoiding in any society/culture, most, if not all, more advanced rules, including property, are based upon accepted local norms, and therefore are subjective, and can only be called conflict avoiding within their given sphere.

The distinction between "common" or "public" law and "private" law tracks the same ground when your referrents are in the same culture or society, but become fuzzy when you move to a larger scale.