7 October 2001 what is the law?

an email to Daniel Brozak

Randy E Barnett, The Structure of Liberty: Justice and the Rule of Law, Oxford University Press (2001?)

dear Daniel,

Is this book what you asked me to comment on?

I can never bring myself to read theories written entirely in abstract words wherein apples and breaths and guns and lights and hopes and fears and loves and hates and all the mixed up ingredients of life are missing, even cigarettes, kept out by the professional vocabulary!

However, as you asked me to look at it, I read parts of the beginning and the end (of the chapter summaries given on the website) but I did not become inspired by it. I felt all the time the unmentioned presence of the actual man (called Randy!) who wrote the theory ... in which, as far as I could gather, he tells both police and protestors that they must not resort to violence for that is illegal, or unconstitutional (I take that to be the gist of it)... but will they obey?

But law is what emerges when those who exercise power (which is I think violent by nature in that it forces people to do what they would not otherwise do) have finished fighting. Then they want rules with which to legitemise the compromise that they have both agreed to after fighting is ended. This illusion of peace and legality lasts awhile until one or other side feels oppressed or angry and again resorts to 'illegal' or 'unconstitutional' force....

...So law, or rather the order it enforces, is to me a fiction. I think that lawyers mistake law for the force that it limits (up to a point - but beyond which force acts without limit)... That is my perhaps naive or uninformed picture of what is law and how it relates to force.

Some years ago I started, with René Foqué, an unfinished project to seek a new kind of law (suited to the new conditions of life). To prepare myself I began to read the following books, the first two of which he recommended - you might find them useful:

René David and John E C Brierley, Major Legal Systems in the World Today, Stevens & Sons, London, third edition, 1985 (originally in French by René David)

Harold J Berman, Law and Revolution: The Formation of the Western Legal Tradition, Harvard University Press, Cambridge Mass. and London, 1983.

Dafydd Jenkins, Hywel Dda, The Law, Gomer Press, Llandysul, Dyfed, United Kingdom, 1986.

The third one is about the laws of Howell the Good, a medieval Welsh king. The translation is respected for its literary quality. The laws of Howell are renowned for both their literary quality and their fairness.*

All three books are to my mind exceptionally well-written, in human language, and they give a wide view of how law comes about and how very different are the laws of different cultures.

I mentioned some of this in the digital diary entry for 22 july 01 - respecting the absence of what we would call law in some tribal cultures (and yet they live successfully) and its replacement there by the magic of kingship and of sacred people.

I fear that this is based on far too brief a reading but it is what I thought as I tried to sample the book via the extracts... And your request that I look at this book is inspiring me to think again about law, and perhaps to revive in some way that project. As a fiction this time, I hope.

good wishes


As I was drafting that I was unaware that US and British 'forces' began to attack in Afghanistan - is this within 'law' or outside it? They say that their use of force is limited, and probably it is - but by prudence, and by politics, not by law I think.

I feel confused by this and by the attack of 11th September, and by the whole situation, but I am sure that a new perceptions, and new names, are needed to find right ways to think about and to direct force in this time of 'global' power and politics and business and protest and technology.

'In times of difficulty rectify the names.' Confucius. (from memory)

*I can't resist copying out a small part of the Laws of Hywel Dda. This is from Book 2, Section 1. The Laws of Women. It states how property is to be divided if a marriage breaks up before seven years (after which it is equally divided between man and woman):

The equipment is to be shared like this. All the milk vessels, except one pail, go to the woman; all the dishes, except one dish, go to the woman; all the vessels for drink go to the man. The woman is entitled to a car and yoke to take her equipment from the house. The man is entitled to the riddle, the woman is entitled to the fine sieve. The man is entitled to the upper stone of the quern and the woman to the lower. The bedclothes which are over them to the woman, and those which are under them to the man until he takes a wife. After he takes a wife they belong to the woman, and if the wife who comes to the man sleeps on them, let her pay the woman from whom he separated her wynebwerth (literally face-worth or face value - the compensation to be paid for sexual misbehaviour within marriage).

...Perhaps the law is a finer and a more homely thing than I have been suggesting?