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@SoulReaver what's the point? I'm not a lawyer, and this isn't a brief. Hasnas isn't handing you a blueprint. The article is one distinction: a rule can bind you without being anyone's command.
"Those subject to law are indeed bound, but not by the will of any particular human beings."
Your eight points show grown rules can be unjust, slow, and later corrected by statute. He already grants that. Origin, justice, and domination are different questions. Showing the illustrations are flawed does not touch the distinction.
As I said on the Larken Rose thread, complex systems can only emerge, they can never be effectively planned or even imagined by humans, who can barely see first-order effects.
I always appreciate any attempt at a real argument, like this article, and I will never write one myself. Study complex systems if you want to understand why :) Anything long enough turns into nitpicking, and it is pointless anyway: I do not believe the mass of "humans organizes at scale" into anything worth calling free. I only believe there are a few who belong to distinct humanoid subspecies, the ones I wrote about here: https://aillia.substack.com/p/roads-less-traveled
There are people already living lives most would call impossible: living “off-grid” inside the grid, using the system’s own holes against it while staying in places you actually like, is the highest-skill version of this sovereign life game :)
The fact that something didn’t exist before is not proof it’s impossible.
It’s only proof the time and the tools weren’t ripe yet.
Gunpowder was impossible, until it wasn’t.
The printing press was impossible, until it wasn’t.
A global, private-by-default, seizure-resistant money was impossible and truly usable until the last few years.
Now it’s here.
The time is ripe.
Not for everyone.
Maybe never for everyone.
But perhaps (finally!) for the tiny fraction who actually want freedom and the responsibility that inescapably comes with it.
We don’t need to convert the herd.
We just need to become a different species in the same jungle.
Different ways. Different laws. Different hours of the day.
The herd will keep grazing on subsidized grass while we move at night.
That’s enough.
1. His own source disagrees with him.
Hasnas takes grown law from Hayek and twice cites the chapter where Hayek discusses it. That chapter has a section titled "Why grown law requires correction by legislation." I didn't encounter this on paper.
2. He admits custom can go bad. His safeguard didn't stop it.
He concedes custom can be skewed to favor some groups, and that there's little reason to think case by case rules beat legislated ones. Big admission for a paper arguing against legislation. His safeguard is weak precedent and competing courts, the old common law. That's the system that ran these for centuries: married women w/ no legal existence of their own, the eldest son taking all the land, children born outside marriage unable to inherit, a felon's family losing their inheritance w/ him. All four were common law. In England all four were ended by acts of Parliament.
3. His core test fails.
He says a rule nobody willed can't dominate anyone. These rules pass that test. He's mixing up three questions: how a rule started, whether it dominates, and whether it's just. Answering the first settles neither of the others.
4. Competition couldn't fix them.
A married woman couldn't sue in her own name, so she couldn't be anyone's customer. Market discipline only serves people allowed into the market, and courts sharing the same assumptions don't compete them away. The Adam Smith passage he cites has courts competing for fees and inventing legal fictions to grab cases. That's an example of what assumed to be neutral acting more like revenue seeking.
5. His proof that custom still works runs through legislation.
His example is the Uniform Commercial Code, a statute passed by state legislatures. And he credits commercial law entering the common law to one judge, Lord Mansfield, deciding to bring it in.
6. Evolution built what he blames.
He says the common law went political once courts got a hierarchy and judges bound themselves to precedent. The hierarchy came from Parliament. Binding precedent didn't, judges built it themselves, the same undesigned way he says good law grows. He can't treat evolution as trustworthy until 1800 and corrupt after.
7. He borrows the knife and won't let it cut.
He uses the critical legal scholars to show judge made law is ideology dressed as neutrality. That hits his own fix too: juries deciding by the community's sense of fair. For centuries that sense included rules like in point 2.
8. His alternative is one he won't stand behind.
Juries w/ no instructions, no binding precedent, no substantive appeals. Footnote 41 calls it "for illustrative purposes only, and not regarded as a proposal for reform" and admits it defies the paper's own history. He can't name one country running on consent based law and says he's not qualified to debate whether one could work. And his model keeps today's courts, trial judges working much as they do now. The state still runs it and still enforces the verdict.