Thursday, May 28, 2015

Law and/vs Legislation

Many arguments boil down to misunderstandings in terminology. It doesn't help that there are words that people treat as synonyms when the two terms really ought to be understood in quite different ways -- especially given certain uses of one of the words.

One such word is "law." It is unfortunate that "law" is so often confused with "legislation." I have gotten into some pretty stupid discussions based on this confusion. Especially when the leap is made from physical laws to legislation-termed-law.

What is the difference between a law and legislation?

A law is a consequence of interactions, what emerges in those interactions, giving rise to predictable regularities. They are the emergent rules. The physical laws certainly qualify. In addition, there are laws of chemistry, laws of biology, and social laws, including the common law and the laws of economics. In the latter case of social laws, they are a product of human action and are not created consciously. They are the emergent rules of the game. Some have absolute regularities because we are humans, because we are apes, because we are primates, because we are social mammals, because we are land vertebrates, and because we are living things. All of these contribute to the kinds of interactions in which humans are likely to engage (given they are relatively normal). The law of marginal utility is a consequence of our being simply alive.

Legislation is a conscious creation, and always has some sort of teleology -- some goal, or end-point. They are crafted by a particular individual or individuals with a certain purpose in mind.

Lawyers and judges are experts in both law and legislation, as not all laws (again, mixing the two terms) that need to be understood and judged are legislation. Common law also sometimes results in conflicts which need to be adjudicated.

In nature, when laws come into conflict, you get paradoxes -- which are in turn resolved by the emergence of new levels of complexity. The paradoxes of physics are resolved in the creation of atoms and ions -- in chemistry. The paradoxes of certain kinds of chemistry (organic) are resolved in the emergence of living organisms. Etc. The laws of society also result in paradoxes, which are resolved in the emergence of new institutions and new (or, at least, greatly clarified) spontaneous orders.

Legislation does not give rise to paradoxes. It gives rise to contradictions. Whereas paradoxes can "live together" and interact to give rise to greater complexity, contradictions cause system collapse and give rise to less complexity. The ideal legislative system would be one that did not have within it contradictions -- including, most importantly, contradictions with naturally emergent laws. Laws can never actually be violated; legislation can. In fact, often legislation must be violated for the society to continue to exist at all. One can only ever attempt to overturn laws; one cannot in fact overturn laws. Just ask the Soviets, who tried to overturn biological and social laws, with horrendous consequences.
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