Freedom, Society, and State - Ludwig von Mises Institute

king but was a completely novel phenomenon that appeared
only when popular sovereignty supplanted the concept
of divine sovereignty during the seventeenth and eighteenth
centuries.(ll) Bruno Leoni said that it was only
o v e r the I a s t few cen t ur i es the t t he view emer ged the t
rather than being discovered, law was a command or some
" s 0 r t 0 f d i k t e t t hat the winn i ng rna j 0 r i tiesin the legislative
assemblies impose upon the minorities ••• "(12)
Historian Norman Cantor admits that the English common
law "had no concept of eit·her legislation or royal
authority to make law by the kingfs will." And, he
adds, "Not unt i I the seventeenth century is the idea
that legislation is the manufacturing of new law
clearly formulated and grasped."(13) And Frederic J.
Stimson stated that
The "I a w" 0 f the A ng 10 - S a x 0 n peopIe wa s r e ­
garded as a thing existing by itself •.. It
was 500 years before the notion crept into
the minds, even of the members of the British
Pa r I iaments" that they could make a new
law. What they supposed they did, and what
they were understood by the people to do, was
mer ely t 0 dec 1are the I a w, asit wa s the n
and as it had been from time immemorial.
"The notion of law as a statute, a thing passed by
a legislature, a thing enacted, made new by a representative
assembly," he continued, "is perfectly modern,
and yet it has so thoroughly taken possession of our
minds. that statutes have assumed in our minds the
main bulk of the concept of law as we formulate it to
ourselves."(14)
But if law need not be a command from above, i.e.,
ei ther enacted by a legistature or imposed by a king,
how did j t emerge and, moreimp 0 r tan t 1y, a c qui reva lidity
for the members of the society? Both Hayek and
Leon i have ar gued that both classical Roman civi 1 law
and Engl ish common law were "almost entirely the product
of law-finding by jurists and only to a very small
ext e n t the pro d u c t 0 fIe g i s I a t ion. rr ( 15 ) "The Roma n
j uri s t ," say s Leon i, "wa s a so r t 0 f sci en tis t: the obi
e c t i ve s 0 f his res ear c h weret he sol uti on s to ca s e s
that ci t i zens submitted to him for study, just as industrialists
might today submit to a physicist or to an
engineer a technical problem concerning their plants or
the i r product ion. Hence, private Roman law was something
to be described or dIscovered, not something to
be enacted."(16)
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