Today’s Quote of the Day…

…is from page 229 Karl Menger’s 1883 book Investigations into the Method of the Social Sciences, specifically Appendix VIII “The ‘Organic’ Origin of Law and the Exact Understanding Thereof” (original emphasis):

However, law can also come into being, and even under the most original conditions, in another way essentially different from the above: by authority. The man in power or intellectually superior can set certain limits to the discretion of the weak men subject to him or of those mentally inferior. The victor can set certain limits for the vanquished. He can impose on them certain rules for their action to which they have to submit, without considering their free conviction: from fear. These rules, however similar they appear on the surface to those of national law, are both by origin and by the guarantees of their realization essentially different from the law which grows out of the convictions of the population and the realization of which was also originally an affair of the nation. Indeed, they can be in direct contrast to national law; they are really statute, not law. But the strong man has an interest in calling them ”’law,” in cloaking them with the sanctity of law, in connecting them with religious  traditions, in elevating them so that they become the objects of religious and ethical education. This is the case until the habit of obedience and the sense of subjection developed by them recognize in them something analogous to law and until this habit and sense scarcely distinguish any longer those rules limiting the discretion of the individual which are produced by the convictions of the nation from those which power prescribes for the weak.

JMM: What Menger means here by “national law” is not some national convention or agreement (in fact, he explicitly rejects the “social contract origin” theory of law), but rather what is more akin to custom and tradition: something that evolved over time to serve a purpose (protect individual interests) and is widely accepted and respected by members of the society.

What Menger does in this paragraph is draw a distinction between “national law” (the subject of the essay thus far) with statutory law.  The primary difference is how these two are established: national law (which is properly called law) is established through human interaction.  Statutory law is established through authority (ie imposed).  The two have superficial similarities only.

This is not to say that statutory law is inherently less desirable that law.  What it is to say is that statutory law can become unhinged from morality, in which case we are faced with the Bastiat Dilemma: “When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing his respect for the law—two evils of equal magnitude, between which it would be difficult to choose.”  To treat statutory law as some “will of the people” or the object of some “divine intelligence” (to use Menger’s term elsewhere in the essay) is to fundamentally misunderstand law.

 

8 thoughts on “Today’s Quote of the Day…

  1. I had thought this argument originated with Hayek in the 1970’s in “Law, Legislation and Liberty.” It is interesting to learn that it dates back almost a century earlier to Menger. But an extra century of failure to change conventional language usage around these terms does not bode well for the success of that effort.

    We already have a perfectly good term for what Menger and Hayek wanted “law” to mean. That term is “social norms.”

    Of course it is true that statutory law can become unhinged from morality. But let’s remember that widely prevailing social norms can also become unhinged from morality. History has shown that many times.

    Many statutory laws have the overwhelming support of most people. None have unanimous support. All social norms have the support of most people (at least within the group where they apply). None have unanimous support. It is easier to change legislation than social norms but it’s hard to effectively enforce legislation that conflicts with social norms.

    Liked by 1 person

    • Greg

      That failure to change the language convention around the difference between “law” and “legislation” is intentional. Our masters like to call their pronouncements “law” to make them sound more dignifies, but for the most part statutory “law” either makes no sense, or makes a clean break from morality, or merely codifies what is already social convention and customary law. Typical legislation serves to promote the interests of some small group at the expense of everyone else.

      Like

      • Ron,

        >—“That failure to change the language convention around the difference between “law” and “legislation” is intentional. Our masters like to call their pronouncements “law” to make them sound more…”

        Do you really think your “masters” get to dictate how you speak? If this is true then things are much more dire than I thought.

        Government does not control how we speak. As I never tire of pointing out, language is the most libertarian of all human practices. Everyone gets to decide for themselves what he words they hear and speak mean. The penalty for getting it wrong is not being understood the way you want to be understood.

        Be careful what you wish for. There is nothing more poignant than a libertarian complaining that most people are making the wrong choices with their free choices about word use. Don’t you just hate it when people use their liberty to chose the language conventions that they prefer instead of the ones you prefer?

        Like

        • Greg

          You made the distinction yourself. Now you’re arguing against it?

          How many legs does a dog have if you count his tail?

          A dog has four legs. Calling his tail a leg doesn’t change that. Calling legislation “Law” doesn’t make it so, but it does cause confusion.

          Like

          • Ron,

            I “made the distinction” by translating the meaning you would like “law” to have into the meaning it does have today in popular usage – not in order to argue for it. Most people regard “law” and “legislation’ as interchangeable synonyms. You, and Hayek before you, and Menger before him wanted most people to regard “law” as a synonym for “social norms” but not as a synonym for “legislation.” Few were persuaded.

            The relevant question for our purposes here is not: How many legs does a dog have? There relevant question is: How many theories of language have been advanced in this thread?

            The answer is two. I have advanced the theory (shared by almost all modern linguists and philosophers who have studied language) that language is entirely conventional. It is conventional all the way down. There is no higher authority to appeal to than prevailing popular usage. Dictionaries issue new editions each year in order to bring the previous year’s edition more into line with current conventional popular usage. The usage understood by the most people speaking a language is the one which is most correct for that language.

            You have advanced the theory that correct language usage is the usage most approved of by Ron. If I am misunderstanding your theory of language and you have some alternative theory of what constitutes “correct ” language usage, I am eager to hear it.

            You don’t have to like all prevailing language conventions. I certainly don’t like all prevailing language conventions. When there is a prevailing language convention I don’t like I simply avoid using it and find other words to say what I want to say.

            Occasionally efforts to change language conventions succeed but they fail much more often and this particular attempt has been failing since the 19th century.

            The good news for you is that you don’t need to change the language convention to argue that social norms should carry more moral weight than legislation. You can argue that point directly without telling people who are speaking in the conventional manner that they don’t know how to speak their own language correctly. You are making your task much harder than it needs to be.

            I don’t really understand why you would want to decide whether a social norm or a piece of legislation was more likely to be a good idea without first knowing the content of each. History is filled with widely held social norms that no libertarian should regard as just. It is always surprising to me how often the same libertarians who are hyper-alert to the possibility of government sponsored injustice can be so unconcerned about it happening in the absence of government intervention.

            Like

          • Greg

            Yes, sadly, you are misunderstanding my meaning, and I will assume it is my fault for not being more clear. The “dog” analogy apparently didn’t do the job I asked it to do, so I will try to clarify.

            I agree that convention dictates the usage of language, and hopefully you will agree that it is also possible to use words, when they are available – as they are in this case – to distinguish between sub-types within a generally recognized category of “things” to further communicate more precise meanings.

            For example, we could hardly go wrong suggesting to our companions or co-workers that we go for lunch at a restaurant that serves “food”, but we could additionally make a meaningful distinction among various types of food; sandwiches, pizza, soup, etc. or among foods of different ethnic origin such as Chinese or Mexican.

            Luckily for us, In the context of our current discussion, I believe that all of us, you, me, Jon, and hopefully anyone else reading our comments understands that there IS a distinction between customary law and legislation, and that it’s NOT necessary to confine our usage to the single term “law”, even if that’s a common convention.

            In an earlier comment you wrote “We already have a perfectly good term for what Menger and Hayek wanted “law” to mean. That term is “social norms.”

            That could as easily be written as “We already have a perfectly good term for “social norms”, and that term is “law”.

            Hopefully you don’t believe that the diktats of some legislative body or a single monarch should be afforded the same gravitas as law that has been distilled from centuries of common experience and custom, and generally acknowledged and accepted as the best ways to avoid conflict and the best ways to deal with conflict when it does occur.

            Like

Comments are closed.