Speak Not of Legislation as Law

Words convey explicit meanings that can be described in dictionaries and that operate on our consciousness. But words convey more. Words convey also tacit meanings not easily described in dictionaries, as well as attitudes, suggestions, and presumptions that often affect us only subconsciously.

All of these features of words come into being and change over time through customary use. No widely spoken language was legislated into existence and amended only by conscious design. Indeed, language is perhaps the most vivid example of a human institution that, in a phrase much used by F.A. Hayek, “is the result of human action but not of human design.”

This reality means that more than a dollop of arrogance is on display when someone objects to the way a word is popularly used. Why, after all, should one person’s minority notion about what a word does or should mean supplant the meaning that popular usage currently imparts to that word?

The easy answer to this question is “It shouldn’t.” Yet this easy answer, although not entirely unjustified, isn’t as definitive as it at first appears. If the meanings of words are determined by popular usage, then does not each of us have some ethical responsibility to use language as carefully and as free of confusion as possible? I believe that each of us does have such a responsibility because each of us, by our individual usage, plays a role in reinforcing or in changing the meanings of words. That this role is imperceptible does not make it unreal. I further believe that this responsibility is one that becomes all the more important if many people who speak our language reject this responsibility.

Law ≠ Legislation

At the top of my list of dangerously confusing word usage is “law” as a synonym for “legislation.” The practice of calling the commands handed down by government officials law is nearly universal. Statutes enacted by legislatures are routinely called laws, as are bureaucratic edicts issued by administrative agencies. Especially troublesome, in my view, is the common habit of describing legislators as lawmakers.

In reality, law is quite distinct from legislation. Laws are evolved norms of human behavior. We as members of communities learn through experience how we should behave in various circumstances and how others will behave in those circumstances. The law is this complex set of shared expectations. No one designed or created it. Law comes into existence and changes only through undesigned changes in our expectations and through changes in our actions that nudge our expectations to change.

Consider a common practice on American college campuses. A person who wants to claim a place for herself at a table in a crowded cafeteria places a book or a backpack on a table if that table space is unoccupied. This person then goes off to buy lunch, confident that when she returns, meal in hand, to that table there will be a seat available to her. This person expects that the mere presence of her personal item on the table will inform others who are looking for seats at a table that this space is currently unavailable even though the person who claims it is currently nowhere in sight. And sure enough, other people in search of places to sit pass by this unoccupied chair because in front of it on the table is a stranger’s book or backpack.

This simple example of how students establish temporary property rights in table spaces is one of law. No one designed this peaceful method of allocating scarce table spaces. Its rules are nowhere written down. Instead, this method of — this law for — allocating scarce table spaces emerged from informal practice and exists only in the shared expectations of those who use campus cafeterias. And yet this law is widely obeyed even by those who, in the moment, are inconvenienced by it.

The same sort of evolutionary process gave rise to laws against murder, theft, rape, vandalism, fraudulent conveyance — the list is long. Murder and theft are unlawful not because some great and wise lawgiver declared them to be unlawful. They are unlawful because the vast majority of us regard these actions to be wrong and thus expect that our fellow citizens will refrain from them. And when violated, as all laws occasionally are, people react by punishing the violators, with the intensity of punishment generally being aligned with the seriousness of the harm caused by the violation. Someone who violates the law against murder will suffer a much harsher penalty than will someone who violates the law against sitting at a cafeteria table space reserved with a book.

Legislation Is Conscious Commands

Legislation is very different. While sometimes legislatures codify law and assume responsibility for its enforcement, legislation itself is not law. Legislation is commands consciously designed and enforced by a political authority.

To distinguish law from legislation is not to insist that law is always superior to legislation. Particular laws can be undesirable, and legislation often serves useful purposes. Nevertheless, legislation is not law. So the common habit of using “law” and “legislation” as synonyms sows much confusion.

One confusion is the mistaken belief that all rules by which we humans live must be consciously created. If legislators are lawmakers, one strong suggestion is that we private citizens in the course of our daily lives have no role in making law. Any such input that we have in making law begins and ends with our occasional trips to polling places to vote on candidates for political office. We are merely to obey whatever rules are handed down by legislators, for without these so-called lawmakers our society would be lawless and hence hellish.

The suggestion, in other words, is that we are really not self-governing; we are governed only by the conscious commands of state officials. We as private persons are helpless and unimaginative pawns, saved from self-destruction and protected from each other’s predation only by elected or appointed officials who consciously superintend our activities.

In addition to being a factually mistaken view of human society, this view of law as command wrongly demeans private individuals while giving false majesty to those with political power.

For these reasons and others, I refuse ever to speak or write of legislation as law, and of legislators as lawmakers. I concede that my refusal, by itself, won’t change the common habit of speaking and thinking of law and legislation as being one and the same. But because this distinction is both real and fateful, I will myself never contribute to the dangerous failure to keep legislation conceptually distinct from law. And I will hope against hope that my use of language in this way will one day rub off on at least some other people.

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