[cross-posted at Liberty & Power]
Guess who wrote this:
Legislation, as it has been usually understood, is not an affair of human competence. Immutable reason is the true legislator, and her decrees it behoves us to investigate. The functions of society extend, not to the making, but the interpreting of law; it cannot decree, it can only declare that which the nature of things has already decreed, and the propriety of which irresistibly flows from the circumstances of the case. … Men cannot do more than declare and interpret law; nor can there be an authority so paramount as to have the prerogative of making that to be law which abstract and immutable justice had not made to be law previously to that interposition.
Hi Prof Long,
I’ve been translating some passages of your piece “How to Dismantle Leviathan form within” to portuguese. I made it available in this blog .
Just telling ’cause I thought it would be more polite to let you know =).
Thanks for this quote–I wasn’t aware of it. Godwin suggests that law *just is* something that is interpreted not made by humans. For law we need to look to immutable reason. But that begs the question: what is law? (Or rather: what ought we to consider law to be?) Why is it *better* for us to conceive *law* as a subset of right reason, as opposed to the product of a certain kind down-on-earth human institutional process? One reason it *wouldn’t* be better is that we disagree quite a lot about what right reason requires of us and others. And there might be situations in which we need to all be able to identify, easily, what the law is. Now, that’s not an argument for legislation, but rather for resisting the natural law view of what law *is*. (Mind you, there might still be a place for looking to natural law as a model of what content the law ought to be.) We could still adopt the positivist view of what law is and nonetheless prefer emergent law (custom, etc.) to enacted law (legislation). But that argument has to be made.
I wonder what Hayek would say about this quotation.