This post is a departure from my area of expertise (economics) into an area of interest (law and philosophy).
Law (not legislation) is the set of rules, techniques, and institutions we set up among ourselves to handle the inevitable conflicts that arise when two or more people interact (Hayek, Alchian, Plato, and Cicero, among many others, used this definition). Law may be written down, it may not. Law may be against legislation, it may not. Law may be best described if we use the original Greek word: nomos, or norms. The norms of a society are its law. As Hayek put it in Law, Legislation, and Liberty, law: “refers not only to explicit laws but to all of the normal rules and forms people take for granted in their day-to-day activities.”
At this point, we should take a brief but necessary digression on the difference between law and legislation. Law, as I stated above, are the norms of society; both formal and informal rules. Legislation, on the other hand, are rules passed by some governing body. Something may be against the law but not against legislation (for example, infidelity in a relationship or marriage). Legislation may be the same as law in some cases (for example, it is both against the law and against legislation to steal), but legislation may try to usurp law (many kinds of legislation championed by “social engineers” are like this; they seek to overthrow the established social order for one reason or another and impose a new one. For example, minimum wage seeks to overthrow the established law regarding work agreements and impose new agreements the parties do not consent to. A more extreme form would be anti- interracial marriage legislation or anti-religion legislation). The distinction between law and legislation will become important later in this post.
To the extent laws are informal, and that they emerge through the repeated interactions of people, they are, in a sense, unanimously adopted. At least, unanimously consented to, under the Rousseauian criteria (that is, people obey them even if they don’t agree. Disagreement is signaled by leaving the society). What’s more, given that these laws are adopted without the inherent threat of violence (that is, they are adopted not on the grounds that disobeying the law will result in violent forms of correction. Punishment may develop to include violence later, but it is not inherent to the law), we can say the consent to such law is voluntary, another key aspect of social contract theory.
To the extent that laws are developed over time through people’s peaceful and voluntary interactions, we can consider laws a social contract. Note that this differs from legislation. Legislation cannot be considered either peaceful, voluntary, or emergent from people’s interactions (to the extent legislation codifies law, it does meet these criteria but only by virtue of being descended from law). The fact that legislation carries behind it the threat of government action (“disobey this legislation and the punishment will be X”), renders it immediately hostile. The fact it is imposed, rather than emergent, renders it involuntary. Further, to the extent the State prohibits or obstructs migration (both immigration and emigration) reduces the individuals freedom to leave the contract, and thus negates the voluntary aspect further. By this criteria, we cannot consider legislation a social contract.
In short, the law is a social contract, as properly understood. Legislation, however, is not. I intend to further develop these ideas, as well as discuss the role of the State in the social contract and the law, in future blog posts. I cannot speak to when they will be coming, as my research needs to be focused more on my graduate work. But stay tuned.