Although highways have been in use for millennia, their legal development remained fairly pedestrian (if you’ll pardon the pun) until the advent of the automobile. The mass adoption of the auto, especially in America where it became an essential good around which an entire society was built, brought new layers of complexity and control to the common life. A voluminous civil code now governs the highway; entire sectors of law enforcement are dedicated to policing the code; courts have arisen that are solely concerned with processing offenders; and among lawyers, perhaps the most enterprising and tireless of that profession specialize in helping the errant motorist to mitigate his due penalty.[1]
In theory, the intent of traffic law is no less than the purpose of all civil law: the preservation of life and property, and the furthering of common life within a society. The modern highway is notoriously unforgiving of these ends; reducing the confusion to some kind of order is essential to ensure that drivers can benefit from the communal goods the highway was built to promote. Hence traffic laws are an application of natural law, and find their origin along with all other positive laws in the necessity of ordering what would otherwise be an ambiguous, if not chaotic, state of nature.
Thus the theory. But, in practice, traffic laws are largely a mere example of the growth of the administrative state. Its cloud of regulations afflict the ordinary driver as well as the criminal. The regulatory environment can evoke a sense of petty harassment, where just-expired papers, a cracked headlight, or a slightly miscalibrated speedometer can lead to fines, court appearances, and even the loss of driving privileges. Being so essential to the most basic needs of life, any restriction on automobile use can potentially threaten life itself, to say nothing of sociability and prosperity, making compliance a disproportionately high-stakes affair. In consequence, communication strategies between motorists have arisen spontaneously, allowing one driver to warn others of a highway patrol car lurking under a bypass–a circumstance that casts the officer more in the role of a stalking predator than a guardian of public order. Indeed, from the traffic cop to the traffic judge, a new relation between the citizen and the law seems to have arisen, alien to the kindly spirit of the Anglo-American legal tradition. In this new relation, the law is not the elevated expression of the sense of the community but an adversary who extracts large revenues from it.
The mass automobile society, therefore, and the regulatory and administrative thicket surrounding it, can serve as a test case for two diverging theories of the nature and location of sovereignty in relation to society and nature, and the consequential effects of these theories on the making of laws.
Philosophers such as Thomas Hobbes (1588–1679) and Benedict Spinoza (1632–1677) theorized a pre-civil state of nature in which the individual and his private rights were fundamental. As people multiplied, chaos abounded through private vendettas and ruthless campaigns of conquest. In short order, such extremes of misery ensued that individuals found it necessary (still acting in self-interest) to combine with other individuals to form a society. Their private and original sovereignty, belonging to them as individuals, they donated to a sovereign entity, who thenceforward held absolute and unchecked power over society, putatively for the common good. The laws were appointed by the sovereign, and promulgated downward to the citizens, who were bound to obey them as long as they remained in society.
At first glance, this account of the natural state of mankind has a good deal of explanatory power when applied to the roadways. Imagining rush hour traffic on a highway with no police presence, no speed limit, and no traffic lights, brings to mind the grim hypotheticals of the Hobbesian state of nature. Under such conditions, one suspects that motorists would accept the heaviest yoke if it relieved the unregulated horrors of their former condition.
On the other hand, men such as Johannes Althusius (1563–1638) and James Wilson (1742–1798) appealed to the state of nature as a state, not of raw private rights ruthlessly enforced against all comers, but of pre-existing social order in which men cooperated and associated for benevolent as well as self-interested reasons. Civil society, under this conception, is merely the ratification and formalization of this pre-existing society; it does not create, but only codifies what is already present by nature. “The truth is,” says Wilson, “that sovereignty, dominion, and power are the parents, not the offspring of government.”[2]
Thus civil life is not called into being by the decree of a sovereign who stands apart from and over a given society. Rather, it is the self-binding of an already associated group of people to a certain stipulated form of government. Sovereignty, as the “parent of government,” must have resided in the association of society itself, not with each individual as such, nor as embodied in the person of a ruler. Thus, within this association, sovereignty is not exercised over society, but by society, on its own behalf, through its organs of representation.
In this condition, civil law is established by the consent of the governed, via a formal or tacit contract between each member of society and its government, and reciprocally between the government and the members. The legislators themselves are bound by their own laws; therefore law does not require a superior, but can be bound upon oneself by mutual agreement. “It may be said, I oblige my self by my owne Laws, that is by such Laws which my Governour hath made by a Power derived from my self at least as one of the Community.”[3]
As James Wilson will feature prominently in this discussion, it is fitting to turn for an historical example to a highway which began at his doorstep in Philadelphia. The Great Wagon Trail, as it was known at the time, was the chief highway from the eastern seaboard into the southern back country during the days of the colonies and the early republic. As far as tradition relates, the Trail pre-dated European settlement, probably originating first as animal migration tracks, eventually being used by Indian tribes. Over time, local paths were linked together to form a southwesterly route that crossed multiple lines of latitude, allowing for use as migration and trading routes, not to mention as a warpath. As European settlers moved west and south, they adopted the Trail as the route of least resistance, until it grew to accommodate a large and continuous flood of migrants that persisted for over a century.[4] Though falling dormant by the mid nineteenth century, the Great Wagon Trail was later reincarnated to serve the consumer automobile as Interstate 85–not, indeed, precisely the same route, but serving the same migratory flow from the populous Eastern seaboard to the comparatively open lands of the Carolinas and Georgia.
The development of the American continent is recent enough that we have concrete historical examples of the progression from a pure state of nature, to a state of tacitly cooperative use, to a highly regulated public good. The remarkable phenomenon of the Great Wagon Trail strongly corroborates a Wilsonian/Althusian model of society. The pre-civil condition of man was still highly social, inasmuch as the highway could not have come into being even as a footpath without human nature being cooperative (though corrupted by sin; certainly the Trail was also used by bandits and war-parties). It arose, not by the fiat of a sovereign, nor by the selfish pursuits of private individuals, but organically, by tacit agreement, in response to the communal needs of those who lived by it.
Thus by both nature and historical custom, the highway was not only created by society (as opposed to government) but the first regulations governing its usage arose from convention and custom, worked out over time among those who used it. It was not first promulgated by a sovereign to bring order to what was formerly primitive chaos. The concept may be summed up in the phrase, society is before government.
Now let us turn from jus ad viam to jus in via. According to Hobbes or Spinoza, in a state of nature one would expect individual drivers to be governed by self-interest supremely, and to pursue their private ends at the expense of every other driver who got in their way–with the exception of when cooperation rather than competition served their self-interest; in which cases the cooperation would give way upon the expiration of the usefulness of the arrangement.
Under this theory, we would require traffic cops to act on behalf of the sovereign to compel private drivers into cooperative behavior, as promulgated by traffic laws, for the sake of the greater good. The relations between the law and the driver would be essentially adversarial, as the law’s role would be to counteract the deepest natural impulses of the driver, ensuring through penalties that his self-interest would be redirected from private pursuits to conformity to the common good. Experience suggests that this model is the one currently governing traffic laws. Indeed, and most troubling of all, there is a natural progression from the external and absolute sovereign to the contemporary effort to order motor traffic via artificial intelligence. After all, if the goal is to maximize order and minimize the variability that arises from independent agency, a precise, unbiased, and infinitely complex system is an ideal means to this end.
There is a superficial appeal in this model, as we have all experienced the law of the jungle that seems to rule the freeway. As dynamic as the conditions can be, however, we also see drivers voluntarily braking to allow other cars to merge, even at the cost of their own time, and with no realistic penalty for not doing so. Indeed their benevolent cooperation extends to colluding against the law, for example when drivers alert each other to a hidden patrol car around an upcoming bend. Wilson’s associative state of nature is a better model for the reality of traffic.
In fact, traffic may be thought of as a continuously forming and dissolving association with its own customs and rules, forming by shared experience and habit. Althusius saw civil society as composed of many orders of associations, from natural ones such as the family, to artificial and circumstantial associations such as economic guilds, neighborhoods, or almost anything else that involves a purposeful gathering of people.[5] Any contiguous group of automobiles on the highway would fit this definition, too. Though probably entirely anonymous to one another, the motorists are using the same common space for the same communal purposes. Althusius used the word symbiosis to describe the relations of these associations. None of them are solitary, but all associations form a mutually-reliant network in which one’s own interest is secured by the act of providing for others’ interests. This model of mutual life, in fact, describes the highway quite aptly. Especially on a high-speed, congested interstate, every driver is constantly yielding, accelerating, moving over to accommodate a stopped vehicle; the infinite number of decisions made between all the drivers simultaneously is a marvel of cooperation, a crowd-sourced solution to what could easily become a Hobbesian state of nature, but in fact is an Althusian symbiosis. Such an achievement takes place without, even in spite of, traffic cops, speed limits, and other regulations intended to govern traffic–in fact, strict conformity to these regulations would extinguish the mutual responsiveness that allows the association to work. The appearance of order comes, not from an imposed control by an external sovereign (or computer), but by an almost infinite cascade of individual responses to almost undetectable cues.
This association is governed by transitive, not distributive, justice; unlike a civil code (or a computer), it does not work on a theory of rendering to everyone his strict due. Rather it is a carrying out of imperfect obligations, making value judgments according to a hierarchy of urgency, safety, and priority, alternating between assertiveness and deference depending on each driver’s assessment of the conditions around him. Being imperfect, these obligations are not enforceable. Without these obligations, traffic could not function, suggesting a necessary realm of moral activity beyond the reach of the civil law.
What could account for this moral intuition that most drivers seem to possess? The proper faculty for this kind of implicit cooperation and moral prioritization can only be the innate moral sense of a human–not a systematic theory of highway law, promulgated by experts in pavement surfaces, tire traction, brain processing speed, fine motor skills, and annoying trolley dilemmas–or for that matter, artificial intelligence. Indeed, Wilson devotes a surprising amount of time to epistemology in his Lectures on Law, and his exposition of “common sense realism” is highly relevant to the concern over the rise of the administrative state as opposed to the Common Law.
Not only does the innate moral faculty of man account for the self-organizing traffic association, but it also bears upon Wilson’s theory of government as established by consent, and laws as established by popular custom. At bottom, the administrative state and its rule of experts is at war with the great Anglo-American tradition of government, wherein the legislative power originates from the citizens themselves as the constituents of society. For such power to emanate from ordinary citizens, their own moral sense must, upon due consideration, overrule the dictates of yesterday’s empiricists, today’s scientific experts, and the prophets of a glorious technocratic future. Not, indeed, because they beat the experts at their own game, but because the fundamental moral sense that pertains to humans as such, is the most appropriate way to access the Moral Law by which every civil law is judged.[6] It is even prior to reason; thus while it can be aided and developed by reason, the moral sense bears no necessary connection to superior intellectual powers.[7]
Winnowed throughout time by this common moral sense, a coherent body of laws is born, which have obtained the consent of the people, as well as the ratification of wise men. Both are necessary, for as Wilson observes, while the moral sense is foundational, reason must be employed to shed further light on matters: “[A magistrate’s] conscience or moral sense determines the end, which he ought to pursue; and he has intuitive evidence that his end is good: but the means of attaining this end must be determined by reason.”[8],[9]
As discussed in Wilson’s lecture on the Common Law,[10] this theory of common sense accounts for the English common law, which was not promulgated by a superior, but arose over time, by custom, apart from any legislative body, and ratified and refined through judicial proceedings. It derives, not from Parliament, but from the original repository of sovereignty, the consent of the whole people. The fact that such custom is still operable proves, in Wilson’s mind, that the people of a society do not surrender their authority to an external sovereign, but rather exercise their sovereignty through their appointed organs, without losing the ability to act out of their collective authority apart from their delegated instruments. “[L]aw need not begin with a statute, which in turn began with a sovereign authority, which began in consent; popular consent, after all, is given for a reason, and in a democracy it is given by the same sovereign that a jury represents.”[11] Custom, and common law, can be nothing else than this.
Therefore, as none other than Justinian declares, “the unwritten law supervenes upon the approbation of usage, for long customs, approved by the consent of those who use them, acquire the qualities of a law.”[12] And Hale confirms, “They are grown into use, and have acquired their binding Power and the Force of Laws by a long and immemorial Usage, and by the Strength of Custom and Reception in this Kingdom.”[13] Any custom which has been in force for a great length of time, is safely assumed to have the tacit consent of the people (the original legislative authority), and is treated as law.
This concept of customary law has the happy effect of producing laws suited to the people in their varied circumstances, reaching in time a level of refinement that cannot be approximated by a purely theoretical system, a panel of experts, or an artificial intelligence. Again as Hale puts it, the English Common Law is “singularly accommodated to the Frame of the English Government, and to the Disposition of the English Nation, and such as by a long Experience and Use is as it were incorporated into their very Temperament, and, in a Manner, become the Complection and Constitution of the English Commonwealth.”[14]
With this in mind, we return once again to the issue of traffic laws. One of the most universal customs on the highway is that of traveling over the posted speed limit by an indefinite but well-understood amount: perhaps 10 miles per hour over is the limit beyond which, by some mysterious unspoken process of common agreement, the highway patrol feels justified in issuing a speeding ticket, and the driver in turn acknowledges culpability. At 5 miles over, the police rarely issue a citation,[15] and the driver would feel justifiably aggrieved were he to receive one.
By a curious paradox, however, another universal phenomenon of the highway is for drivers to immediately brake to below the posted speed limit when they see a patrol car, even if they were well within the customary 5 miles over. An uncertainty lingers because highways are officially governed by a strict civil code and the police are within the letter of the law to issue fines for any infraction however slight–and occasionally they do. We might interpret this phenomenon as highlighting a tension between the strict theory of highway safety (and the laws which codify it), and the de facto common law that actually governs the highway. This tension, as we have described above, relates to a defective epistemology (rule by experts), and a defective theory of sovereignty, counteracting the common-sense highway practices that ordinary drivers have developed for themselves. With the passage of time, a predictable traffic flow has resulted in most localities. Drivers generally know when to speed up in certain sections, slow down for a curve, upcoming intersection, or congested area; even when it is contrary to the posted speed limit. An experienced traffic cop will allow the organism to find its own path of least resistance, according to the moral law and equity (the precursors to the common law).
One can only imagine the chaos that would reign when an officer enforces strict letter of the traffic code by making traffic stops in the midst of a 6 lane highway during rush hour; the result is mass confusion and danger, not increased safety; he is breaking the natural law by enforcing the civil code. As a symbiotic association, through trillions of cumulative interactions, drivers have worked out their own driving habits, and these habits should be considered more weighty, as better suited to the end of preserving life, than either transportation engineers or artificial intelligence systems.
Perhaps, therefore, by means of the illustration of highway traffic, we can extend the principle more broadly. As our society moves further toward technocratic administration, we should expect areas as important as morality, public health, and ecology to exhibit similar tensions and malfunctions as we see in our traffic codes. The technical complexity of the modern world has indisputably advanced since Wilson’s day, and today (as in his day) we should be willing to grant a hearing to real experts. But, as with traffic, we should be wary of assuming moral competency on top of their real but likely quite narrow field of expertise. Public policy by definition gathers all manner of moral concerns into its scope; the moral sense is accessible to all, and in fact, is probably already reflected in the habits of the people. Revolutionary departures from custom, enforcement of practices alien to a society’s ways, may be assumed by default to depart from the Natural Law. At the very least, they would by definition be unsuited to the temperament and constitution of a people, as Sir Matthew Hale spoke of. A remote sovereign, a scientific model, or a computer program, might locate empirical facts about reality, but common law, working through the moral sense, must be permitted to find the most appropriate application of it to the circumstances of a given society. It is both a mirror to the people, refined and elevated by the passage of time, and a response to the Natural Law. It is drawn from the moral sense granted to all men, and discipled by their judges, who should be skilled in the philosophy and ethics of law, but also bound to the sensus communis contributed by the jury; the two together collaborate to refine the common law.[16]
Recovering Wilson’s ideal of a moral and educated people, and returning to their care the standards of the community, is a hopeful if arduous path to counteracting the absolutism of certain Enlightenment theories of sovereignty, and their modern expressions found in the powerful administrative state and the looming technocracy.
Kent Will is a carpenter and small freeholder in eastern North Carolina.
For a fee only slightly less than the ticket. ↑
James Wilson, Lectures on Law, vol. I (Indianapolis: Liberty Fund, 2007), 553. ↑
Matthew Hale, Of the Law of Nature (Grand Rapids: CLP Academic, 2015), 16. ↑
Encyclopedia of North Carolina, entry for Great Wagon Trail ed. William S., Powell (Chapel Hill, 2006). ↑
Althusius, Politica, trans. Frederick S. Carney (Indianapolis: Liberty Fund, 1995), 1. ↑
Cf. Wilson, Lectures, ch. III, “Of the Law of Nature,” and ch. VI, “Of Man, as an Individual.” ↑
It would be a mistake to read this as a populist, instinctive, or Pelagian account of man and law. Though arising from popular habits, the common law is still subject to the Natural Law. It is filtered through the judicial system, in a sort of dialogue between judge and jury as expressions not only of the sense of their particular community, but of their community as conformed to Natural Law. Cf. James Stoner, Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Kansas, 1992). ↑
Wilson, Lectures on Law, vol. I, 514. ↑
This idea is a synthesis of two eras of thinking on English Common Law. Sir Edmund Coke viewed common law as “not unlearned reason, but rather the ‘artificial’ reason of those skilled in the law.” But by the time of Sir Matthew Hale, the “view of common law as actively refined reason gave way to the idea that common law is general custom derived from popular consent.” (David Systma, “General Introduction” to Hale’s Of the Law of Nature, xxvii-xxviii.) ↑
Wilson, Lectures, Chapter XII, “Of the Common Law.” ↑
James Stoner, Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence: University of Kansas Press, 2003), 7 ↑
Quote in Wilson, Lectures on Law, vol. 2, p. 759. ↑
Sir Matthew Hale, History of the Common Law of England (Chicago: University of Chicago Press, 1971), 16. ↑
Hale, History of the Common Law of England, 30. ↑
Except in the state of Virginia ↑
Cf. Ethan Foster, “James Wilson: America’s Natural Law Architect” in A Protestant Christendom? (Landrum: Davenant Press: 2021), 49-69. ↑