This article was published in the Summer 1994 issue of Formulations
by the Free Nation Foundation
A Limited-Government Framework for Courts
by Richard Hammer

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In our recent Forum, at the conclusion of my presentation, I suggested a structure for a system of law which might satisfy most libertarians. Here I will restate that formulation, and elaborate somewhat. Briefly, I propose that the state, in our hypothetical free nation, establish a system of courts, but not legislate the law as enforced in those courts.

One participant at the Forum insisted that we need to define what we mean by "law" if we intend to have any idea what we are talking about. Yes, law has many meanings. In the broad sense it can mean not only rules regulating actions but also guidelines for action or even for thought ("Thou shalt not covet ...."); while in a narrower sense understood by most Americans, law often means the particular set of rules enforced by government police. But for our purposes, since we as libertarians are particularly sensitive to government, I will single out government law, and define government law as that which is written by or for the state. Government law might be written either in the constitution of the state or by the legislative authorities of the state.

Now notice that there is another kind of law which never gets written down as legislation. For example, we all know that murder is against the law. But, as I understand it, in most societies this law has never been written down as government law. It has not been necessary to write it down as government law; indeed, it might seem silly. In properly functioning societies, citizens trust that murderers will be confronted, by whatever mechanism their particular society employs. More generally, Anglo-Saxon common law has satisfied the needs of citizens for a secure and predictable legal environment; without ever being written down as government law, a body of law was created by judgments and carried forward by tradition and precedent. Thus we libertarians can trust, I propose, that law vital to our security will be created and maintained by courts. Now, completing my definitions, I call court law the law made by judgments within courts.

So, to repeat my skeletal formulation, government would establish a set of courts. This establishment of courts would be written as government law. But government would not attempt to regulate the judgments rendered within courts. Court law would be guided by the invisible hand. This invisible hand should regulate the marketplace for justice just as surely as it regulates other marketplaces provided incentives in the market are not masked or distorted by acts of the state.

The amount of government law required by this formulation would, I expect, be limited to a few pages: just enough language to establish courts, and no more. Thus we see a severely limited role for the state. The amount of court law, on the other hand, would have no legislated bounds. It could fill law libraries. Indeed, court law is pretty much what does fill law libraries. But the amount of court law which had any power would be limited by practical, economic considerations. The desire to limit legal expenses, working in the more flexible framework in which rulings are not regulated by government, would influence courts and litigants to economize, to circumvent complexity in any way which could satisfy all parties.

Thus it might seem that we need to concern ourselves only with the contents of the few pages of government law which establish the system of courts. And this I believe is our first task. But I can imagine a pretty bumpy start for judgments rendered in these courts if these courts start from zero, with no imported tradition or precedent. To the extent that we embrace this formulation we also need to concern ourselves with this other subject: any new establishment of courts needs, I believe, some tradition to guide its early judgments. Furthermore, to be accepted by inhabitants so governed, the tradition adopted must be familiar or plausible.

Also you may notice that my formulation here does not address policing, or executive functions. It approaches only the functions of law-making and judging. But these are books I hope to open on another day. D

Richard O. Hammer owns a small business building houses in Hillsborough, North Carolina. On a local level he writes columns interpreting political events in a libertarian frame. He participates in the Republican Party and currently is candidate for County Commissioner in Orange County, NC. In the past he worked as an engineer and management scientist.

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