A month ago, the US Supreme Court issued a ruling in a seemingly very specific case: John Wiley & Sons v. Supap Kirtsaeng. The dispute was as follows: Supap, a graduate student in the United States, discovered that textbooks published by John Wiley & Sons in his home country of Thailand cost several times less than the same textbooks in the United States. The enterprising Thai organized textbook exports and earned a decent amount of money from the price differential. The aggrieved publisher sued him for $1.2 million. Supap lost, although the amount he allegedly owed the publisher was reduced to $75,000. Still, Supap didn’t have that kind of money either, so he decided to fight. He lost another court case and finally reached the Supreme Court, which ruled in his favor a month ago.
I am writing about this because the case vividly illustrates what so-called positive legislation actually is—that is, those very papers written by specially trained (or untrained) people in specially designated places called parliaments.
Consider this. The publisher John Wiley & Sons based its lawsuit on copyright law. The publisher believes that by owning the copyright, it has the right to set different prices for its products in different regions of the world and that—pay attention!—this fact gives it the right to pursue those who profit from the price differential.
As we can see, a seemingly abstract lawsuit actually calls into question a fundamental institution of our civilization: the right of ownership. Does your book become yours once you buy it? A strange question, it might seem. If you bought a book, it means it came under your complete control. You can give it away, throw it out, let someone else read it, sell it. It is your property. The book will not become your property only if, instead of a sale, there is a lease. In that case, you merely use the book for a fee; you cannot destroy it, give it away, or sell it, and, as a rule, you must return it to the lessor when the contract expires. These two transactions have completely different economic and legal content. Moreover, any person of sound mind and memory can easily distinguish one from the other.
Yet John Wiley & Sons believes that copyright legislation grants it the authority to arbitrarily decide what happens in each specific case. That is, you purchase something, you use it, and then—oops!—it turns out you don’t own it. In reality, it is not your property but a lease, and you owe a bundle of money to someone unknown for something unclear. And this happens suddenly, as they say, without a declaration of war, since there was no lease agreement in the transaction—only a sale. The fact that the case reached the Supreme Court and was only stopped there (I suspect, temporarily) suggests that very, very many people believe this is how things should be.
Let us return, however, to our positive laws and this case as an example. What is “law”? Throughout history, there have been two main answers to this question. The first holds that law is a body of decisions on disputed matters, which actually describes human practice. A conflict arises; the parties turn to a third party, which makes a ruling. Along the way, rules develop, and they do not exist in the form of a unified text but are rather implied. The mechanics of this system are simple—in a potential conflict, the parties usually already know how the judge will rule and only appeal to him when there is no such clarity. This kind of law is demonstrated by the Roman Republic (“jurists’ law”) and then by England and other English-speaking countries.
In such a legal system, everything we now consider “norms” was born, including sale and lease transactions and so on and so forth. Both Roman jurists and English judges believed they were merely “discovering” the law, and if changes occurred, they merely described them, not “introduced” them.
Another understanding of law views it as an order given by the boss. This boss can be a dictator, an assembly of all citizens of the polis at the agora, or “democratically elected” deputies. The essence does not change regardless. Such law, unlike the first kind, can be anything and is not at all connected to how people live and act in real life—as opposed to the fantasies of the “legislator.”
It is precisely the triumph of the second kind of law that we are observing, and the Supap case is very telling here, because it occurred in a country where “judges’ law” is still preserved. Here it becomes clear that positive laws, in essence, are in most cases direct aggression against people and a denial of law in its first sense, as a description of voluntary practice.
And, by the way, pay attention to the following. The owner always sets the rules for disposing of property. In the most general sense, another way to express the same formula is also true: if you can impose rules, then you own this. “Jurists’ law” and “judges’ law” are methods for establishing relationships between owners. “Positive legislation” is an order from the owner (the state) to its property (the citizen).