Replace Arbitrary State Law With Neighbourliness: The People’s Law

(Image by Juta)

Good neighbourliness involves an unwritten and often unspoken agreement to look out for one another. It also involves keeping out of each other’s way, with allowance for occasionally gossiping about what you saw the other person doing over the fence. Good neighbourliness will protect you from crime, clean up your streets, make your street party central or make it the old people’s street about which kids make up legends since it’s so quiet it must be haunted.

There is something inherently tied to the natural living of human beings which brings about good neighbourliness. Good neighbourliness is the foundation for a natural legal order. An order that, according to Hayek, grows out naturally from customary interactions of individuals coupled with a conscious desire to live peacefully and prosper collectively.

The instinct towards good neighbourliness emerges when enough people living in close proximity have given up using force against one another. It is what emerges when the human mind decides to solve problems by ruling out the initiation of violence. There’s no official agreement, yet through time and regular interaction with neighbours, a sense of what rules are required to live together in peace, emerges, without anyone setting out to design such rules. 

This instinct is what libertarians have termed the “non-aggression principle”. It is a natural predisposition among social groups to not use violence as a means to achieve ends, with force and coercion only permissible in defence but never when instigated. This means all manifestations of coercion are frowned upon by these communities, including rules, like legislation, that unjustifiably prohibits behaviour that doesn’t violate any individual’s natural rights. An example of this are zoning laws that limit one’s use of their property without any prior violation of natural rights.

Good neighbourliness makes someone turn down the music after a certain time; not because he cares what the neighbours think, but because his grandmother who was friends with all the neighbours, told him that a good person is always considerate of neighbours. Good neighbourliness comes from heads of families who played on the same soccer fields as boys, extending the peaceful rules that they all informally adopted as kids simply through interacting with one another, to their interactions as adults and thus govern their community with peace and an even hand. This all without being named leader of anything but their own family.

One suspects that good neighbourliness is the power that creates law. Good neighbourliness is premised on liberty and its implications of voluntary agreements instead of the force of ‘formal’ law. 

Good neighbourliness as described above is what Cicero speaks of when he speaks of the innate law known to every man, be it from Athens or Egypt. This is the spontaneous order that Hayek speaks of in his Law, Legislation, and Liberty when describing the Rule of Law. Good neighbourliness can be summed up as the creation of societal norms and subsequent rules that govern individual rights and recourse when they are being infringed. This is the source of law, contextualised in this scenario by the good neighbourliness anyone who comes from a South African township understands. No singular being comes up with the rules that govern neighbours, yet they are a conscious creation of human action nonetheless, a salient example of what the Rule of Law is.

This is why it is so hard to define what the law of the people is. Whether you want to label it as common or customary law: What is the law that the people themselves have made? Is it to be found in the law made by people in the past, or do we, living in the present, also make our own law? Or is there a fundamental natural law that is true throughout time – one premised on the abstract self-evident nature of man herself?

Consider, again, zoning regulations, or building codes. These are typically set by municipalities. If we assume that the people’s law doesn’t emerge from the interaction of the people themselves, but rather through representatives of the people who are chosen in some arbitrary majoritarian process, then we would expect there would be some harmony between local bylaws and how the people choose to live with one another. 

This explains why the mark of a rule of just conduct, as Hayek would say, is always negative, in seeking to regulate means and not the definite ends of human action. The regulation of those means being the promotion of freedom, as is enshrined in section 1 of the Constitution as a foundational value of the South African state. Negative rules like the prohibition of theft and murder, for example, are easily enforceable as they signify a drastic break from the normal operation of society (being peaceful coexistence) for their operation. Zoning regulations, on the other hand, seek to achieve definite ends (property use differentiation and determination) where generally no violation of rights has taken place. Voluntary agreements among property owners are more just, and conform to the Rule of Law, as opposed to whimsical legislative or regulatory provisions.

Rule by legislation is not what you see in the townships of South Africa. Legislation at all levels of government is ignored. People socialise freely with drug dealers. The community knows who the local drug dealers are, which of them are good guys and which are not. Provincial liquor regulations are ignored, as people don’t generally report their neighbours for license violations. The neighbours value the service, in fact. 

An analysis premised on positivism, with a formalistic understanding of the concept of legality, recognises this as illegal conduct. We, on the other hand, being proponents of the natural rights tradition, see this as the manifestation of society’s liberty. One that is just, because as illustrated in these scenarios, no individual rights are being violated and no rule of just conduct is violated either. Regulations are by their very nature end-based rules of conduct – they are positive (not to be confused with beneficial) in their nature of regulating human action.

Bylaws restricting noise levels are ignored and replaced with arrangements between neighbours. Roads are blocked when one has a big celebration, and no one asks if the person has a permit. Of course, there’s an unspoken rule that all are invited subject to conducting themselves peacefully. The reputation of local contractors spreads due to their reputation and price – no one thinks to enquire whether the government has given this fellow permission to do what he does.

Some would call this chaos, and yet it produces beauty: Townships that look as good as any bylaw-respecting part of South Africa. It would look even better if the municipality did its job and built roads instead of their ugly, inferior-quality housing. 

The building of roads, which is a state action, is contrasted with the building of houses in their nature. Roads are used by all and their being an end of the state is as far as facilitating and maintaining an order, the freedom to travel more efficiently, the results thereof to be determined by society at large. 

The building of houses is state action which seeks to achieve a determinate end, benefiting non-owners to the detriment of property owners, with a social effect. This effect is the only shallow merit for such an effort, that is negative in that it leads to a chronic dependency on the state for a service that should be the domain of those crew of construction guys we all know who build walls and refurbish houses, all without getting a nod from big daddy government to exercise their agency.

On the other hand, good neighbourliness stops real crime. This varies, but in some townships, there are very few problems with theft, murder, and rape, etc. To steal from your neighbours is a terrible sin. To take away some family’s child by killing them is even worse than that. These rules that come about by natural operation of society through individual action are somewhat consistent with the common law conception, at least in the abstract in the construction of rule of just conduct and their negative nature in seeking to only operate through enforcement after the fact by prohibiting the act of violating the most hallow of rights, those to life and property, the summation of what gives man liberty! 

Let good neighbourliness, as exemplified by the townships across South Africa, be a lesson to the legislators on the conceptual basis as to which to interpret and make legislation and rules of just conduct consistent with the Rule of Law.

Co-writers: Mpiyakhe Dhlamini and Zakes Mthembu