Law Without Tradition and Authority

Why should anyone obey a law? Set aside the policeman for a moment and ask what makes a law deserve obedience. Legal philosophy has produced long answers, but the working answers that societies actually use come down to four.

A law is upheld because it has been in use for a long time: tradition. Because someone entitled to give it gave it: authority. Because it works somewhere else and we copied it: example. And because it is right: justice.

Every law leans on a different mix of the four. The prohibition on murder leans on justice and needs nothing else. Tax law leans on authority, since nobody thinks any particular rate is just. Traffic law leans on example, since we drive on the side everyone else drives on. And a great deal of law leans on tradition alone, which is to say it is upheld because it was upheld.

The Case for Tradition

The case for letting tradition and authority carry most of the weight is a serious one, and I want to state it before I argue against it.

Laws that change constantly look arbitrary. A law that looks arbitrary loses its hold: people stop feeling that it binds them, and start treating it as an obstacle to be routed around. Stability is therefore not a decoration on a legal system. It is part of what makes the system work at all.

This is true. It is also wrong, in the way that arguments about stability are usually wrong: they describe a short horizon and pretend it is the whole picture.

Look at any legal system over a long enough time and you find enormous modification. Slavery was legal and then it was not. Women could not own property and then they could. Homosexuality was a crime and then it was not, and then marriage was extended to it. Society is a dynamic thing, its morals move, and the law follows, always late and always after a fight. The stability that tradition provides is real, and it is stability in the wrong place: it stabilises the law at exactly the moments when the law has fallen behind.

Who Benefits From the Delay

Here is the part that should make you suspicious of tradition and authority as sources of law.

They are not neutral. A law that is upheld because it is old, or because someone in a position of power gave it, is a law that can be defended without ever discussing whether it is good. And that is precisely the defence you need if the law benefits you and you cannot say so out loud.

Powerful minorities have used this for as long as there have been laws. The landowner defends the property arrangement because it is ancient. The guild defends its licensing because the crown granted it. The clergy defends its exemptions because they were always there. In every case the actual reason for the defence is the benefit, and the stated reason is the tradition, and the tradition holds off the needed change for decades or centuries.

Tradition and authority are the sources of legal justification that require no justification, and that is exactly why the beneficiaries of bad laws prefer them.

What a Direct Democracy Admits

Under direct democracy something changes that I think is underappreciated, and it is not a change in any particular law. It is a change in what we admit about law in general.

We admit that laws are decisions. Not discoveries, not inheritances, not commands from above: decisions a society made through a political mechanism, which it could have made differently and can make differently again. Nobody can claim a law came from anywhere but us, because everybody watched us make it.

Once you admit that, tradition and authority lose most of their force as reasons. You cannot say a law must stand because it is old when everyone knows it stands because we voted for it last year. You cannot say it must stand because of who gave it when the people who gave it are the people being asked to keep it. What remains are the other two sources: does it work elsewhere, and is it just. Those are the two that were always the honest ones.

The result is a more dynamic legal system. Laws change more often and more easily. I will not pretend that has no costs; the case for stability above is partly right. But I claim the gains outweigh them, and the largest gain is the one described in the previous section: a minority that wants to keep a bad law because it profits from it can no longer hide behind the age of the law or the rank of its author. It has to argue that the law is just, in front of the people the law is unjust to.

Will People Respect Arbitrary Laws?

The obvious objection: if everyone knows the law is just a decision we made, will anyone respect it? Take away the aura of tradition and divine or sovereign authority, and what is left to make people obey?

The answer is yes and no, and both halves matter.

Yes, respect of one kind falls. People will not feel that the law is sacred, because they will know it is not. Nobody feels awe before a rule they helped write.

But a different kind of respect rises, and it is the kind that actually produces compliance. People keep agreements they were party to. A rule you had a hand in making is a rule you feel bound by, not because it is holy but because it is yours, and breaking it is breaking your own word. That is a stronger tie than reverence, and it is available only to people who actually participated.

The Honesty Dividend

The last point is the one I care about most.

We already treat laws as things we made. We repeal them, amend them, reinterpret them, and let them lapse. Even the laws that claim a holy source get edited freely by every generation that inherits them, and everyone can see it happening. The claim that law descends from tradition or authority is not a description of how law works. It is a story we tell so that certain laws can escape scrutiny.

A direct democracy stops telling the story. It says out loud what was always true: these are our rules, we made them, and we will remake them when they stop being just. That is less majestic than the old picture. It is also honest, and I have argued elsewhere that dispersing decisions produces better outcomes than concentrating them. Law is not an exception. It may be the clearest case.