Nothing is more obvious than the fact that U.S. laws are made by Congress, and that these laws are needed to maintain social order. But, are these statements actually true? Human beings are social animals that have needed rules and laws to regulate their social relations since the origin of the species and certainly long before the 19th century nation-state came into being. It’s simply not true that laws have to come solely from judges and legislators. If the law is considered as “the enterprise of subjecting human conduct to the governance of rules,” then this enterprise is also being carried out by, for example, everyone who drafts and administers rules governing the internal affairs of organizations such as clubs, churches, schools, labor unions or professional associations.
As Nobel prize winning economist Friedrich Hayek noted, laws evolve spontaneously and the most successful laws (for example, those pertaining to private property) have a tendency to spread because they are seen as contributing to human flourishing. It is true that laws can be formalized into statutes by legislative bodies, but in a sense, these are no more than commandments from on high. The concept of law as governance by rules and norms is more fluid, more organic, more natural than statute law. As William Graham Sumner, arguably the first person to teach a course in Sociology, wrote in his book Folkways (1906):
“We learn the mores unconsciously as we learn to walk and eat and breathe…The justification of them is that when we wake to consciousness of life we find them facts which already hold us in the bonds of tradition, custom, and habit. The mores contain embodied in them notions, doctrines, and maxims, but they are facts. They are in the present tense. They have nothing to do with what ought to be, will be, may be, or once was, if it is not now.”
In Moby-Dick, Herman Melville describes how conflicts often broke out between whalers. For example, after a tiring and dangerous chase a whale might get loose from one ship because of a storm and drift away only to be captured with ease by a second whaling ship which tows it to shore with no real effort or risk. Melville concludes:
“Thus the most vexatious and violent disputes would often arise between the fisherman, were there not some written, universal, undisputed law applicable to all cases…The American fisherman have been their own legislators and lawyers in this matter.”
The fishing law Melville refers to was not made by any legislature, rather, it emerged spontaneously over time. In fact, rather than copying existing imperfect laws, whalers chose to create new laws. Subsequently, in those cases in which ownership of a whale carcass was contested, judges regarded themselves as bound to honor whalers’ usages and the precedents set at trials.
Similarly, during the early years of the California gold rush, miners ruthlessly enforced their own mining laws. The simple processes and laws they established together with the quick acting justice they dispensed, contrasts strongly with the bloated and expensive system of justice operated today. Each miner had one vote and acted as his own legislator. When the miners could not come to a settlement of some dispute among themselves, they would leave the decision to a jury of miners. When a miner’s court was to be held, a formal notice was sent to all the prospectors within two or three miles, requesting them to assemble at the claim in question. Although the time spent was so much money out of the miner’s pocket, it was common for most of the residents to turn out as they all had an interest in supporting local laws.
As Tom Bell describes in his Chicago Law School paper on The Jurisprudence of Polycentric Law, the United States has a rich history of groups producing private law: the early Puritan, Quaker, and Dutch settlers; the many 19th century utopian communities; merchants; labor/management councils; the newly freed slaves; the Mormons; the Chinese and Jewish immigrant communities; pioneers moving beyond the reach of state law; land clubs; cattleman’s associations and wagon trains. Bell notes that while many of these organizations provided law in areas that the state had overlooked or deliberately ignored, in recent years privately produced law has grown most rapidly in an area where it competes directly with the state – commercial arbitration. The growth of private arbitration has removed entire classes of disputes from state courts and the insurance, financial services, construction, stock exchange and textile industries (among others) all make heavy use of arbitration for the simple reason that private courts offer greater speed and efficiency.
In non-business disputes most American adults go through their lives without ever hiring an attorney to help resolve a non-spousal dispute. Most people know the basic rules that govern ordinary interpersonal relationships and would rather use their own knowledge to resolve disputes than pay good money to hire an attorney. Robert Ellickson’s masterful study of how neighbors settle disputes in rural Shasta County reveals that most residents resolve cattle trespass disputes, “not according to formal law but rather according to workaday norms that are consistent with an overarching norm of cooperation among neighbors.” Ellickson finds that not only are most trespass disputes in Shasta County resolved according to extralegal rules, but most enforcement actions are also extralegal, ranging from negative gossip to threats of physical retaliation against the offending animals.
Scholars in the field of law, biology and economics are working together to try and understand why there is such a ubiquity of co-operation among self-interested individuals. Why do listeners send contributions to public radio, why do business executives prize reputations for honest dealing, why do neighbors ignore the law in favor of acting ‘neighborly’, and why do banks share ATM networks with competitors? The answer appears to be that under certain conditions a ‘tit-for tat’ type strategy of cooperation is one that maximizes the welfare of group members. Under these conditions statute law ceases to be central to social order.
“Shame may restrain what law does not prohibit.” Lucius Annaeus Seneca