Two Kinds of Law

Conflict resolution vs conflict manufacture

There are two kinds of laws: traditional “common” law is there to resolve conflicts that may occur with respect to person or property; the other kind is instituted to create conflict between people and the legislator by disallowing the former from taking certain actions.

— Per Bylund

Consider two farmers. One has a neighbor whose livestock broke through a fence and trampled his crops: real damage and a dispute over who bears the loss. The other sells raw milk to a willing customer. No one complains, yet in many jurisdictions the seller faces penalties.

We call both cases law. In the first, law resolves a conflict between people; in the second, it creates one between peaceful traders and the legislator. Bylund’s distinction concerns not the form of a rule but what the rule is for.

Law as Discovery

Common law is built from precedent, custom, and decided disputes. Its case-bound structure can keep doctrine attached to concrete conflicts and expose rules to adversarial testing. It can also preserve inherited injustice, privilege those who can afford litigation, and expand through judicial choice. Statutes may manufacture conflicts, but they may also correct exclusions or coordinate risks before an identifiable plaintiff is injured. The useful distinction is functional — resolving or preventing agency violations versus creating needless domination — not a guarantee supplied by a rule’s source.

Common law can therefore work as a decentralized discovery process. Repeated disputes refine rules about trespass, nuisance, risk, and care; useful rules propagate as precedent while others are narrowed or abandoned. The parallel to markets is exact, and it is not a metaphor. Prices emerge from voluntary exchanges nobody scripted and encode information no central authority possesses; common-law rules emerge from adjudicated disputes nobody scripted and encode norms no legislator could enumerate. Mechanisms for honest values develops the market comparison; Axiocracy asks how far discovery procedures can extend into governance.

In its characteristic case — theft, assault, fraud, property damage — adjudication supplies compensation or restraint and makes interaction more predictable. Its plaintiff-driven structure tends to keep attention on concrete injury, though judicial doctrine can reach beyond the parties and inherited rules can conceal who was excluded from standing.

Law as Command

Legislation can instead dictate conduct in advance and encode political bargains, lobbying, or ideology. A raw-milk ban does not emerge from a dispute between seller and buyer; a governing coalition creates and enforces it. In Bylund’s terms, command law manufactures a standing conflict between peaceful actors and the authority. The felt difference between protection from trespass and punishment for a consensual sale tracks a real functional difference, even though the institutional labels do not settle every case.

The Honest Middle

Not every law sorts cleanly into one bin. Public-health and environmental rules may prevent injury before a plaintiff can identify or prove it. A pollution rule that stops traceable damage at the smokestack can reduce future disputes rather than manufacture them.

But prevention can justify almost any restriction by invoking a conceivable harm. The relevant question is whether a rule addresses evidenced risks to others or substitutes official judgment for informed consent. A law that pre-empts trespass can still resolve conflict in advance; a law that pre-empts consent cannot claim legitimacy from the word prevention alone. The Grey Zone supplies the burden, procedure, and provisional review that separate those cases.

Coercion as the Measure

The criterion is therefore not whether judges or legislators made a rule, but whether it reduces coercion and protects agency. Conflict-resolution law can do that through rights, restitution, and dependable agreements, though its purpose does not validate every enforcement mechanism. Control-based law instead adds threats to peaceful conduct. A legal system earns legitimacy by sustaining the agency of the governed, not by the volume or vigor of its enforcement.

The Order Objection

The strongest reply is that centralized authority makes law effective at all. States helped pacify post-feudal Europe; some authoritarian states have sustained internal order; collapsed authority in Somalia or Libya did not produce flourishing common law. Central enforcement can suppress retaliation and solve coordination problems that voluntary arrangements may not.

That archist position gets its full examination in The Archist Axiom. Its empirical core is real but underdetermined. Apparent stability may include suppressed disputes; European pacification coincided with expanding trade, commercial law, and reciprocal norms as well as centralization; and predictable centralized systems differ from kleptocracies. Institutional force also belongs in the accounting rather than being treated as the costless absence of private violence.

Tax and expenditure aggregates do not by themselves measure the value or burden of particular services. The comparative question is what security, adjudication, infrastructure, capture, waste, and dependency result under available alternatives. Naming the coercion begins that audit; it does not complete it.

Historical Iceland and medieval Irish legal institutions offer cases of comparatively decentralized adjudication, not clean experiments in stateless order. Their scale, hierarchy, enforcement, exclusion, and violence are disputed. They challenge the claim that all law must originate in one legislature; they do not prove universal access, stable enforcement, or defense without concentrated authority.

Centralized authority can produce order, but its economic and ethical costs remain part of the comparison. Conflict-resolution law earns authority by making peace cheaper; command law spends authority making obedience mandatory. Neither institutional source guarantees the result. The next question is who the rules reach — because even well-designed law binds only where power permits it to, the subject of Law and Power.