Why did humans make the transition fromcustomary lawto formal statutory law? There is an exhaustive body of literature examining this issue, but in his paperEconomic Freedom and the Evolution of Law (1998),Bruce L. Bensonprovides some intriguing insights. Benson tackles this question from a Hayekian perspective, asserting that modern legal institutions are the byproduct of social evolution.
The paper presents the gradual shift as the byproduct of “entrepreneurship”; individuals with leadership qualities were able to persuade a group of people to adhere to their governance. What makes this persuasion credible, especially in the absence of a state? Benson suggests that such a leader or political faction would have a comparative advantage in violence (p.219). Audaciously, detailing how the development of formal law has its roots in extortion. In these primordial legal regimes, those who acted as law…
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Calculus of Decay 