State-less Law

From Mises.org comes a reprint of Rothbard's review of Bruno Leoni's book Freedom and the Law. 

It is almost a completely foreign concept to the average person these days that there could be law apart from legislation.  We do recognize "case law" as a valid concept, but this is almost always based on the boggy, shifting ground of legislation rather than the solid rock of "natural law". 

If, however, we look back to the Bible, we see that God ordained a system that did not require the votes of an assembly.  The Lord laid down the boundary lines of both divine and human relationships and interactions through Moses, God's chosen authority.  Subsequently, after the death of Moses and his successor, Joshua, there was established a series of leaders known traditionally as judges who served as military organizers and coordinators as well arbitrators for disputes that arose between groups or individuals.  Every little community of fifty or one hundred people had a respected and accepted elder to which disagreements were taken.  If the elder found the dispute too difficult or found himself or herself unable to render a fair verdict because of personal interests, the case could be taken to another adjudicator at a higher level in the family or clan or tribe. 

The problem of over-centralization in such a large, populous and diverse nation as our United States is one that we have considered before.  Joel McDurmon at American Vision points to a county map that illustrates our concerns with allowing the majority to rule, even in a state.

In states like Illinois and New York where the population distribution is very heavily tilted toward the large urban areas, people in the more rural parts of the state have virtually no influence whatsoever in the political process.  Yet these same disenfranchised people are often disproportionately responsible for a significant amount of the state's wealth and productivity. 

Rothbard's review indicates that not all of Leoni's concepts are fully functional.  Any attempt at implementing a "county sovereignty", as McDurmon suggests, would be met with violent opposition if not armed suppression.  Nevertheless, it is clear that small groups of people are quite capable of policing, protecting and governing themselves without any help from a dictatorial central power with a OSFA solution.  Education would certainly benefit from decentralization, as well as the elimination of teachers' unions and administrative overhead. 

Roads usually come up whenever we talk about the functions of government.  I can tell you from personal experience that we did a better job of maintaining many of our country roads when they were the responsibility of townships.  It's true that the larger, more heavily trafficked highways are probably better now than they were in the '50s and '60s, when I was a kid.  However, feeder roads, what Texans call FMs -- Farm to Market roads, and back county roads are often more neglected than they used to be.  Essentially if a road is supposed to be maintained by the county, and it runs near a county commissioner's property or interests, it will get the maintenance attention and money.  If it doesn't, it will be often be allowed to deteriorate to annoying and even dangerous levels before any resurfacing or maintenance is carried out.

Anyway, at present, the idea of more local control and "judge-made law" will be resisted.  We should not abandon these concept, though.  Ever-increasing debt loads at the federal and state levels may give impetus to such solutions in the not-too-distant future.