"Intelligent beings may have laws of their own making; but they also have some which they never made."
-Montesquieu
One of the (many) things I appreciate about Jack Vale's series of "
Pooter" videos is the way in which they illustrate the difference between "law" and "legislation." Nowhere in the American legal code does it say that a man should not wander the aisles of Wal-Mart farting on random strangers, but I guarantee you this: there is a law against it. No grand council, sitting in a conference room, ever decided that such an activity ought to be against the law, but somehow it is.
While the words "law" and "legislation" are often - and mistakenly - used interchangeably, they in fact have very different meanings. Thus, when someone casually says, "Congress passed a new law today," what they really mean is "Congress passed new
legislation" today."
As explained by Don Boudreaux in
this Econtalk podcast, legislation is "consciously designed rules, enforced with threat of force." By contrast, law is the "emergent patterns of behavior that is incorporated into people's expectations." Boudreaux notes that legislation often codifies law (in fact, most
good legislation does just that), and, if so, the law is then enforced (by the police, for example), but the two are often completely separate.
As an illustration, consider this scenario:
You go into the school cafeteria at the busy lunch hour. Spotting an empty seat, you leave your coat as a way of claiming it. You get your food and return to find that another student has pushed aside your coat and taken the seat for himself.
"What the hell are doing?" you ask the student in the seat you claimed. "That's my seat. Didn't you see my coat?"
"What are you talking about?" scoffs the interloper. Then, producing copies of the nation's constitution, the city by-laws, and the university student handbook, he demands, "Show me where it's written that your coat allows you to claim this seat."
"Of course it's not written down anywhere," you respond in frustration. "But, c'mon, everyone knows how it works."
You go back and forth on the matter for a few minutes and finally decide to ask a third student, whom neither of you know, to arbitrate the dispute. The third student quickly concludes that, yes, your coat gave you reasonable claim to the seat. Why? Because, through emergent social customs, that's become the expectation. The constitution, the by-laws, the handbook - these are merely lists of legislation, but the expectation that your coat serves to claim your seat is "the law," properly understood.
Similar laws hold in areas such as language, traditions, and manners. Nothing in the U.S. legal code requires speakers of English to use correct grammar, but when a person says "I seen that movie last night" instead of "I saw that movie last night," they are viewed as having violated a certain law of language. Similarly, the Korean legal code does not stipulate the amount of money to be given as a wedding gift, yet families often keep detailed records of who gave what to whom, and anyone viewed as a cheapskate - as someone who always gives less than they receive - is likely to face strong disapproval.
Friedrich Hayek wrote extensively on this matter is his aptly-titled three-volume set
Law, Legislation and Liberty. Two hundred years before Hayek wrote his books, however, Adam Smith pointed out that humans are very much motivated in their actions by a concern for how other people will view them - a concern which serves to enforce many "laws." In a 1976 paper, entitled "
Adam Smith's View of Man," the Nobel laureate Ronald Coase wrote:
The picture, which emerges from Adam Smith's discussion in The Theory of Moral Sentiments, is of man suffused with self-love. "We are not ready," says Smith, "to suspect any person of being defective in selfishness." Nonetheless, man does have regard for the effect of his actions on others. This concern for others comes about because of the existence of sympathetic responses, strengthened because mutual sympathy is pleasurable and reinforced by a complex, although very important, influence, which Smith terms the impartial spectator or conscience, that leads us to act in a way an outside observer would approve of. The behaviour induced by such factors is embodied in codes of conduct, which because conformity with them brings approval and admiration, affect the behaviour of the "coarse clay of the bulk of mankind." [emphasis mine]
In short, no one wants to be a social pariah - indeed, solitary confinement is one of the most severe punishments one can receive in prison short of the death penalty. We go out of our way to be polite even though it may inconvenience us. Desiring the esteem of other people, even strangers, we generally adhere to rules of social etiquette, such as not picking our noses in public, not pushing ahead in the check-out line, and not farting on people at Wal-Mart.
Unless you're Jack Vale.
The funniest part of Vale's videos, obviously, is the reaction of the various shoppers when this normal-looking fellow lets rip a fart, and then casually walks away without apologizing. Sometimes they burst into laughter, sometimes they stare in shock, and occasionally they manage to blurt out their disapproval. Regardless, they are all uniformly stunned that someone would so blatantly violate the law - unwritten and unspoken though it may be - against farting in public, and then further the offense by not at least begging the other person's pardon. While no single person ever declared such public flatulence to be officially illegal, or even officially impolite, countless generations of social evolution have trained us to hold it in, or at least try to blame it on the dog.
In other words, it's the law.
Note: In
this video, Don Boudreaux lectures on this very topic, with less (audible) farting but with far more eloquence than I can muster.
. Good luck with that, Malawi.