Those who have studied law know what conceptual chaos reigns in this field. Law is called both the system of legal relations and, properly speaking, the body of normative acts; it is called the properties a person possesses and the privileges obtained through political means. These phenomena are, to put it mildly, quite heterogeneous for a single word to cover. Moreover, there is another, deeper problem—if one can put it this way—in understanding the very essence of law.
In this brief note, I make no claim to bring order to the usage of words, but I do want to say a few words about this second problem.
So, what is law—or, to greatly narrow the problem, how does law differ from legislation? In the overwhelming majority of cases, you will find that law is associated with legislation. Positivists say exactly this: everything the state has written is law. Supporters of a softer “contractual” theory say, “No, that won’t do—law is what people have agreed upon.” That is, in this case, law expands to include “good” laws, contracts, and those rules and procedures in which traces of agreements can be found. However, in both cases, law is understood as norms, most often documents that can be seen and touched.
That this is not the case, I will try to show using the example of an analogy from a phenomenon close to law—language. This closeness is, of course, not functional (although both serve human cooperation), but rather lies in the origin and development of these phenomena. Hayek, for example, when speaking of the “extended order of human cooperation,” constantly mentions “language, morality, and law” as examples of spontaneous orders produced by society. These are the practices that, when followed by individual persons, allow them not only to coexist with each other but also to benefit each other.
So, language. Let us take two phrases as an example. The first: “‘Twas brillig, and the slithy toves did gyre and gimble in the wabe.” The second: “Usually more screw加快 marriage not accelerated.” In the first phrase there are no familiar words (except conjunctions and prepositions), while in the second all words are familiar; however, the first seems more meaningful. If you learn who the “myumziks” are (Carroll, they say, explained this), the meaning of the first phrase becomes obvious, while nothing will help with the second.
What matters here is that the first phrase completely preserves the structure of the language, despite the fact that the words in it are made up. The second is structureless, and although the words in it are familiar, you will never understand it. That is, language is not only (and it would be more correct to say—not primarily) words, but the connections between them. Another example of the role of structure, which I think is familiar to most readers, is translation from one’s native language into a non-native one. Everyone knows that such a translation is always more difficult than the reverse process, because when translating from native to non-native you inevitably try to reproduce the structure of your language, filling it with other words. Only mastering to the maximum possible extent the structure of another language (which requires considerable effort) will make your translation adequate.
Unlike law, which has been occupied by the state, linguistics does not stand still. A person who takes the trouble to glance at linguistics in the most cursory manner and from a great distance will discover that language is not only syntax, punctuation, and (one always wants to hope for this) spelling. They will discover yawning abysses of perplexing problems there, some of which will be, forgive the expression, quite epistemological in nature. And, in general, most of these problems relate not to words but to linguistic structures.
So, believing that law is the content of certain norms is the same as believing that language is words. If it were up to me, I would call “law” only and exclusively these invisible algorithms, this “software,” which allows us to cooperate with each other. This separation of software from the data it works with seems to me critically important for an adequate perception of the world around us and for avoiding many deplorable errors.
True, unlike software, law was not created by anyone specially. These are the principles that can be identified, “discovered” in human practices. However, it is hardly possible to have any precise and exhaustive list of “principles of law.” We have already said that, like language, law is practices that people choose for the purposes of cooperation. Therefore, not only does the content of norms change, but also the significance and possible content (when there is a need for this) of the principles of law. For instance, the principle “no one should be a judge in their own case” is quite easy to formulate and it is unlikely to disappear from our practice as long as arbitration exists. In other cases, identifying legal principles will be much harder. For example, recently a colleague recalled the Roman procedure for oral formalization of credit, in which the borrower and the lender had to be present in person. Well, this requirement of personal presence is law. Or, let us say, another example from the same series of personification of obligations: in the 19th century, newly elected officials of various societies and associations had to publicly read their duties after election. And, I emphasize, law here is not the content of the procedure but its essence. Today one can verify identity from a distance, the Roman procedure is no longer obligatory, but public reading of duties has been replaced by nothing, and in many cases it would not hurt at all—so there is a clear weakening of law.
By the way, the linguistic analogy makes it possible to clearly imagine what happens to law when the state tries to monopolize it. Imagine a life in which the government not only changes the word order in sentences and the rules for writing “-тся” and “-ться” every month, but also tries to regulate, let us say, questions of context and connotations. It is not difficult to guess that this really would be “hellish hell”—the trouble is only that we live precisely in such a place. We even have special people—lawyers. Ninety percent of their work is translation from human to state.
And last. Linguists, as they say, are able to distinguish language from non-language. For this they do not need to know a particular language; there simply exist general principles that turn a set of symbols into a medium suitable for transmitting information. If these regularities are absent, it is simply a set of sounds or words. In law (at least in the foreseeable past and assumed future) the foundation of foundations is the principle of self-ownership. Here it should be said that it exists regardless of desire, “consent,” or simply formal knowledge of this principle (informal knowledge, however, is present in the overwhelming majority of human individuals). This is the same objective systemic thing as the principles of linguistics that make it possible to distinguish language from non-language. Many, for example, think that slavery somehow “cancels” the principle of self-ownership. On the contrary, only by knowing about self-ownership can one say about someone that he is a slave—that is, belongs not to himself but to someone else. So, the criterion of self-ownership is the simplest and most effective way to understand how much your legal system is capable of doing what it is intended for: that is, enabling peaceful cooperation among people and resolving disputes. And if in your spare time you try to approach our “laws” with this criterion, it will become a little clearer why we are so prosperous here.