The Law, Legislation, and Tolerance

by Alex Merced

As mentioned by George Mason University economist Don Boudreux, F.A. Hayek had important insights into society’s institutional behavior in his distinction between the Law and Legislation.The distinction being that legislation are rules formally instituted by a legislative body (think government) and laws are the rules we universally and informally follow.

Driving home the distinction:

– It is legislation that prohibits the sale and use of marijuana in the United States, but it’s not necessarily a piece of legislation people follow strictly because this has weakened over time as social law.

– While there is no explicit rule to not cut people in line, we all know not to and generally don’t. This would be an example of a social law.

Often times legislation is guided by law, because legislation that runs contrary to the societal laws of the time will often be difficult to pass, much less enforce, without political consequences. From a libertarian standpoint, this creates several implications that libertarians should concern themselves with.

1. Societal Law can be a barrier to Coercive Legislation: While politics is not really an ideological sphere of society (politicians use ideology to gain power successfully more so  than ideologues use politicians to shape society successfully). So if libertarians are concerned with the size of government and equality under the law (meaning legislation that does create arbitrary societal divides), then the societal law (culture, norms, ethics etc) should hold these things in high regards so that legislation that runs counter to these goals finds it difficult to exist or be enforced. Luckily, the United States has a deep historical culture of inclusiveness (melting pot), skepticism of central rule (revolutionary war, Nixon Scandals, NSA), and celebration of individual achievement (when we think of Steve Jobs, Bill Gates, and other entrepreneurs, we think of their individual achievement first, and barely, if ever, think of any indirect or direct government involvement in their enterprises). So the United States societal law has always been primed to keep certain lines difficult to cross more so than other nations (not that they haven’t been crossed, or that these barriers haven’t weakened at all).

2. Not participating in shaping societal law can make the fight against coercive legislation an uphill battle: If we don’t, through cultural transmission channels like family (how many laws/manners did you learn from your parents), media (how much did you learn from certain TV shows and movies), and the education system, attempt to make or keep things like property rights, non-aggression, and appreciation/tolerance of the individual part of societal law we will find legislation drifting further into larger violations of these values that libertarians hold dear.

So, distinguishing the external forces that shape our behavior and choices into law and legislation can be a very useful tool in solving the types of problems and issues us libertarians concern ourselves with. Another useful taxonomy is that of Institutions and Organizations from economist Douglass C. North. In this breakdown, institutions are the formal and informal human constructs that we allow to limit our behavior (legislation, laws, etc.) and Organizations are the hierarchies of how individuals organize to accomplish a shared goal. So if we look at a university, the distinction between the organization (the president, faculty, and their powers) and the institution (the formal school rules and informal traditions that have developed) can be broken down to help understand the social dynamics.

Libertarians making an effort to use these types of insights to improve and strengthen our understanding of society within the framework of Libertarian philosophy present a great opportunity to push forward the importance and argument for our cause.


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