It is risky to make pronouncements in a field that one is far from mastering. I hope that the little knowledge of legal theory I learned from Friedrich Hayek, from some Law & Economics writings, and from the French classical liberal tradition mitigate my ignorance. I trust my readers to tell me if I err, hopefully with specific citations, remembering that the hyperlinks in the previous sentence are only examples.

Here is the problem as I see it. Legal theorists and especially practicing lawyers who know little about economics or who have been philosophically indoctrinated in legal positivism (the very contemporary idea that law is what the state decrees) confuse law and liberty. Not all of them, of course, but I would say most of them.

In Democracy in America (Vol. 1, Chap. 16), Alexis de Tocqueville was right to criticize lawyers somewhat along those lines:

Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must not be forgotten, also, that if they prize freedom much, they generally value legality still more: they are less afraid of tyranny than of arbitrary power; and, provided the legislature undertakes of itself to deprive men of their independence, they are not dissatisfied.

[French original] Ce que les légistes aiment par-dessus toutes choses, c’est la vie de l’ordre, et la plus grande garantie de l’ordre est l’autorité. Il ne faut d’ailleurs oublier que, s’ils prisent la liberté, ils placent en général la légalité bien au-dessus d’elle ; ils craignent moins la tyrannie que l’arbitraire, et, pourvu que le législateur se charge lui-même d’enlever aux hommes leur indépendance, ils sont à peu près contents.

Note in passing the questionable second clause of the first sentence in the quote. Had he been an economist, Tocqueville would have doubted that “the best security of public order is authority.” Both theory and history suggest that an autoregulated liberal social order is more secure than a society dominated by an authoritarian political regime. Russia and China provide current examples.