Customs and other sources of the law
A traditional argument against the social contract tradition relates to the fact that the monopolist provider of law is expected to adopt strategic behaviours. Influenced by interest groups, he/she is likely to use power to promote private interests.
The presence of a Leviathan (Brennan and Buchanan, 1985; Josselin and Marciano, 1997) threatens the rightness and the efficiency of public decisions and questions the legitimacy of law. On the contrary, customary codification is assumed to avoid unjustified, inefficient and unjust wealth transfers. Indeed, as an arbitrator, the judge does not stand in the position of a monopolist, a central authority benefiting from coercive powers in the provision of law. In this framework, one cannot clearly identify a genuine delegation process, and the related agency relationship, through which judges would become the agents in charge of law provision. The judge is the agent of the impartial spectator of the common law, in the sense given by Smith (1976) and Hume (1992). In the process of establishing customs as legal rules, no one is explicitly in a monopoly position, that is to say capable of controlling the provision of law. It is standard argumentation in economic analysis to affirm that decentralized market processes perform better than centralized allocative mechanisms. What is undoubtedly true for many activities may not necessarily cover all the dimensions of the market for law.First, as far as rightness is concerned, it is questionable whether spontaneous order selects better rules than a contractual process. The emergence of norms is assumed to result from cultural selection, which, according to Hayek, is of the very same nature as natural selection. However, Hayek himself suggests that ‘evolution cannot be just’ (1988, p. 20) in the sense that rightness is extraneous to what is an evolutionary process rather than a constructed allocation.
Second, the natural selection mechanism is also assumed to promote economic efficiency (Priest, 1987; Rubin, 1987). However, one cannot have any certainty as to either the efficiency or the rightness of the selected rules. Among others, Brennan and Buchanan remark that
[S]ocial conventions that emerge historically and take on the status of ‘unwritten rule’ do not necessarily produce the best conceivable pattern of outcomes. Some modern social analysts (notably Hayek and his followers) display an apparent faith in the forces of social and cultural ‘evolution’ to generate efficient rules. There seems to be no reason to predict that these forces will always ensure the selection of the best rules. (1985, pp. 9-10)
Even Nozick points out that chance can be a means of selecting a rule (1974, ch. 6). Then, once selected, inferior rules become stable and widespread in spite of their flaws. Problems come from lock-in effects, inertia and path dependence (see Harnay, 2002).
In this context, as noted by Backhaus, ‘the local customs can no longer be regarded as the only or main source of the law’ (1999, p. 7). In other words, created rules are necessary to complement customs. Nevertheless, rule creation does not refer to a pure or strict constructivist process in which customs would be ignored, but rather sees them as at least partially relevant. Constructivism must get along with pragmatism, thereby implying a reference to existing customs. Paying attention to social norms may avoid externally imposed rules that could crowd out cooperative behaviours endogenous to the customary setting (Frey, 1994, 1997).
In this respect, the Code Napoleon is exemplary in that it mixes customary and contractual considerations (Josselin and Marciano, 2002). Indeed, although it may be viewed as a constructivist, Cartesian and rationalist attempt to create a new legal system, the elaboration of the Code Napoleon really builds upon the two sources of the law, customary and contractual, that characterize the French legal system before the 1789 Revolution.
At that time, the south of France was mainly under the influence of Roman law and its personality principle; contract law was well developed. The north was dominated by Germanic tribal customs. Drafted in four months under the close scrutiny of Napoleon himself, by Franςois Tronchet, Felix Bigot (northern jurists from the Tribunal de Cassation) and by Jacques Maleville and Jean Portalis (southern jurists’ respectively, from the Tribunal de Cassation and the maritime courts), the French civil code draws heavily on previous and pre-revolutionary works by Jean Domat (civil law in natural order) and Robert Pothier (general principles of l'ancien droit). Domat and Pothier had remarkably surveyed and formalized the pre-revolutionary system of law, hence the continuity from the old regime to the new one. Codified customs in the field of property law have been largely maintained while contract law still rests heavily on Roman law. What is outstanding in this process is both this continuity and the new role of the state in the control of law provision. Monopolization is achieved but without breaking down the old pillars of Germanic customs and Roman contracts.Customary rules characterize a spontaneous order process in which no state intervention is required to back up the social order. In theory, customary codification thus fundamentally differs from contractual codification. Conversely, the social contract should rule out customs and build the legal system from a tabula rasa. However, things are less clear-cut when history mixes practice and reasoned arguments.
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