Front Page Titles (by Subject) I: Legal Philosophy - Literature of Liberty, April/June 1979, vol. 2, No. 2
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I: Legal Philosophy - Leonard P. Liggio, Literature of Liberty, April/June 1979, vol. 2, No. 2 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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F.A. Hayek characterizes a free society as the “rule of law.” Since a “government of men” can easily subject persons to arbitrariness, social order seems to require definite social rules, a “government of laws.” Yet legal history demonstrates how varied are opinions on the nature, origins, scope, and purposes of law. Hence the critical importance of legal philosophy, whose purpose is to define and evaluate various notions, standards and systems of law.
Legal philosophy seeks to ground law in reason and nature. Thus in 1608, “the oracle of the common law,” the English jurist, Sir Edward Coke, rebuked James I's monarchical claims, by declaring: “Reason is the life of the law, nay the common law itself is nothing but reason.” Also, one legal tradition, that of natural law, measures positive or man-made law against the more objective standard of a “higher law.” But the endeavor to rationally define a substantive law that best fits human nature quickly leads to an investigation of which legal systems best fit the nature of law itself. Should legal systems be themselves subject to higher moral standards? Should legal systems be competitive or monopolies of the state? Should law seek to overcome social uncertainty by “social rules” or should we add the stipulation that these social rules must be such as to guarantee human rights?
The following set of summaries examine many issues of legal philosophy and diverse systems of law: the rule of law, legal authority, reason and natural law, legal naturalism, legal realism, law and freedom of inquiry, and finally the debated effects of economic interests on law and society.
Hayek and the Rule of Law
“Hayek and Political Order: The Rule of Law.” Journal of Libertarian Studies 2 (Winter 1978): 11–28.
This critical essay examines Hayek's views on the superiority of evolved rather than designed social order, on the function of rules in society, and on the nature of coercion.
Hayek believes that the rules governing human conduct are not and cannot be fully comprehended by a single mind; nor can the agent calculate all the consequences of any particular action. One chooses not between action having different sets of consequences but between actions whose consequences are relatively more or less certain. Social rules function to reduce avoidable uncertainty and to permit ‘harmonious interchange’ between agents; they make possible relatively accurate predictions of consequences. Social rules therefore differ from commands; they do not subject the agent to the will of another.
According to Hayek, if someone is coerced, then his mind has become the tool of another's will. Moreover, withholding the good is coercive only if the other has a monopoly over some good or service “crucial to my existence or the preservation of what I most value.” The state, therefore, need not be coercive: its manipulation of the facts and circumstances of my action is not a substitution of another's will for my own; that the impersonal social forces bring me to take a job I do not like or to pay a dollar for a gallon of gasoline does not entail that I am coerced. The situation results from impersonal social forces rather than an individual's action aimed at making me do his will; and the social forces are neither just nor unjust: only the actions of individuals can be so categorized.
The criticisms in this paper concern Hayek's defense of the state, and his view that the rules which reduce avoidable uncertainty define rather than derive from rights. Baumgarth argues that Hayek's conception of coercion is both too narrow and too wide in application: the clause ‘preserving what I most value’ brings into the concept instances most would regard as not coercive; the exclusion of the state's limitations of individual choice eliminates instances most regard as coercive. Baumgarth suggests that Hayek may have overstated his case in claiming that evolved rather than designed orders or rules are neither just nor unjust. He further points out that the concept of substantive rights (deemed morally and conceptually prior to law) might more effectively function as a check on uncertainty as well as a brake on the power of the state.
Law, Telos, and Authority
“Law and Telos: Some Historical Reflections on the Nature of Authority.” University of British Columbia Law Review 12 (1978): 225–247.
Weisstub's concern is the doctrine of telos in jurisprudence, and not the relatively superficial version that calls attention to “the purposes of legal decisions according to the recognizable values upon which we found our rule-governed system of justice.” He seeks to set out the primary roots of a more profound version of telos, the doctrine that identifies “the source to which all beings and all laws aim.” His purpose is, in part, to draw attention to the dark side of telos, its alliance with assaults on human dignity, and its association with regressive moral legislation.
The ancient Greek pre-Socratics' conception of law and authority identifies laws with dispensing or distributing. Law as distribution is then linked to a cosmology where the ordering of the universe is dynamic—a process rather than an accomplished state—where the principles of order may be many rather than one, and also where authority may reside in many purposeful intelligences.
Some pre-Socratics combined speculative cosmology with more empirical and scientific modes of inquiry, and gave science and logic a role in the foundation of a theory of law. Plato and Aristotle relied on a conception of predetermined and organic purposive order. Platonic legal doctrine, because of its reliance on conceptions of geometric certainty, moved the theory of law closer to the abstract sciences. Plato's emphasis on universals, including rigid and abstract conceptions of human nature, generated an unchanging cosmology and a theory of authority that was “unscientific, anti-empirical and anti-democratic.”
Aristotle's mixture of the empirical and the speculative generated a hierarchical metaphysics as inimical to democracy as Plato's doctrines.
The Thomistic synthesis of Aristotelianism and Christianity is introduced by discussion of the Hebraic conceptions of authority and covenant. Like Aristotle, Aquinas held that in the universe there is a hierarchy of order; according to Aquinas, this order culminates “in the motionless and unchanging source of all authority in the personal Deity.” His conception of law is inseparable from Christianity and from the medievalist's teleological conception of science.
Weisstub does not describe explicitly what he takes to be the most important remnants or influences of telos on Western jurisprudence. Nor does he discuss Roman traditions of natural law.
Aquinas and Natural Law
“The Meaning and Nature of the Natural Law in Thomas Aquinas.” American Journal of Jurisprudence 22 (1977): 168–189.
St. Thomas Aquinas characterized the natural law as the work of human intelligence. Yet Aquinas also makes use of Ulpian's definition of natural law as that which nature has taught all animals. May argues that Aquinas's general teaching concerning the natural law can be reconciled with Ulpian's definition.
Aquinas describes law as “a rule and measure of actions whereby one is induced to act or is restrained from acting,” brought into being by reason. Consequently, law as such, both pertains to reason and consists of a set of true propositions articulated by reason. Since the universe is under the governance of God and His reason, Aquinas speaks of the eternal law as the intelligent grasp “of the governance of things that exist in God as the ruler of the universe.” The eternal law not only governs the entire created universe, but has as its object the common good of the universe.
Every created reality in the universe, says Aquinas, participates in the eternal law in accordance with its nature. Nonrational entities participate in the eternal law passively: “they have inclinations toward their proper acts and ends.” In contrast, rational beings actively participate in the eternal law through reason, and this constitutes the natural law. The natural law is thus a body of precepts or propositions articulated by the human mind. What is ‘innate’ in natural law is the capacity of creatures to discern the body of true propositions concerning the meaning of human actions.
If natural law as law is necessarily related to rational cognition, how can Aquinas make use of Ulpian's definition of natural law as that which nature has taught to all animals? May's answer is that Aquinas “accepts Ulpian's definition of the natural law only in the sense that it refers to the subject matter” of the natural law. “The tendencies that human beings share with animals are the fitting objects of the natural law taken in its proper sense as an achievement of reason.”
Why Aquinas incorporated Ulpian's definition into his writing concerns Aquinas's conception of man. For Aquinas, humans are animals, albeit very special animals. In virtue of his animality, man shares those tendencies and goods common to all animals. Man also possesses certain natural inclinations in virtue of his rationality. Through his reason, man can come to an explicit consciousness of his natural tendencies and thus can express them as law.
Legal Naturalism and Just Legal Systems
“Toward a Theory of Legal Naturalism.” Journal of Libertarian Studies 2 (1978): 97–107.
Although positivist and natural law theories are ancient adversaries, both positions address genuine aspects of law. All natural law theories agree that “there is some objective standard or ‘higher law’ against which positive (man-made) law can and should be measured.”
Legal positivism, which is more complex, may be broken into three versions: Imperativism, which stresses that law is sovereign or autonomous in issuing commands (e.g., John Austin); Normativism, which stresses that law is based on some ultimate norm, namely, “the rule of recognition” (H. L. A. Hart); and Legal realism, which stresses the processes by which positive law comes into force, e.g., via the actions of legal authorities (Karl Llevellyn and Alf Ross). The last is the positivist thesis considered in this paper. The main dispute is between natural law and legal realist advocates (see Edward A. Purcell, Jr., Crisis of Democratic Theory).
What is the “legal process”? It is the system by which positive law is determined and it has “a purpose or function” (Lon Fuller, F. A. Hayek). The prime purpose of law is simply to discern and enforce legal duties. Thus far this is consistent with natural rights and natural law theory. Legal naturalism, the view advanced here, “adds to the search for the substantive law which best suits the nature of man, a search for the legal system or systems which best ‘fits’ the nature of law.” Whereas positivism takes law as fact, legal naturalism considers law “an enterprise, an activity with a purpose.” So we can ask of a legal system whether it “is successful or unsuccessful.” Following Lon Fuller, Barnett argues “that a law-maker should itself obey the rules it sets up to govern its citizenry.” Thus “the State is a source of law inconsistent with this (Lon Fuller's) principle.”
If Fuller carried his analysis far enough he would see “that a State legal system doesn't conform to the principle of official congruence with its own rules.” On the other hand, the legal positivist/realist sees that this is so and concludes, “that State-made law is sui generis.” This is why the legal positivist/realist associates “‘coercion’ with the definition of law.” The insight of legal positivism/realism is its recognition of “the essential nature of the State, the predominant source of law.” Being, as Max Weber recognized, “a continuous organization. . . if and insofar as its administrative staff successfully upholds a claim to the monopoly of the legitimate use of physical force in the enforcement of its order,” a State must violate the principles of the natural law system that consist in natural rights, since its monopoly requires the use of coercion. Its power to tax, which Barnett claims is one of the State's “central characteristics,” also violates human rights, and is inconsistent with the natural law principles of a legal system. Therefore, State cannot be based on natural law, and this is what legal positivists/realists, who stress the study of the process of legal development, confused with the claim that a legal system as such cannot be based on natural law.
Legal naturalism advances natural rights as constraints upon the process by which law should evolve and uses the various legal activities under this constraint to produce a legitimate system of law.
Lon Fuller and Natural Law
“The Legal Philosophy of Lon L. Fuller: A Natural Law Perspective.” Otago Law Review 4 (1977): 67–86.
Within the tradition of natural law philosophy, Professor Lon Fuller turns away from the predictive, imperative, or hierarchic conception of law and rejects coercion and formal hierarchies of command as the identifying characteristics of law. Fuller approaches law “not in terms of definitions and authoritative sources, but in terms of problems and functions.” In Fuller's model, law is interactional, a purposive and collaborative endeavor, rather than a one-way projection of authority.
For Fuller, law is terrestrial in origin and application, a purposive “enterprise” or “activity” rather than a “higher” or transcendent human endeavor against which positive law must be measured and to which it must conform. He rejects the notion that there exists something fixed called “the natural law” which offers an eternal, immutable “code of conduct.” Nevertheless, Fuller approves of “the kind of legal thinking” exemplified by the natural law tradition because of its aspirational and purposive conception of man and the role it has accorded human reason as opposed to arbitrariness in governing man. He interprets natural law as an active process of inquiry rather than as a general ethical theorem.
Fuller emphasizes both the idea of purpose in law and the importance of reason in the development and administration of legal institutions. The relationship between Fuller's concept of law and the intellectual tradition of natural law may be observed along several dimensions: (1) Teleological conception of law and man: the central aim of human endeavor is “communication”—reaching an understanding with and coordinating efforts with others motivates human aspiration—rather than the Hobbesian notion of self-preservation; (2) Natural reason and human fiat: rejecting the extremes of natural law and legal positivism, recognizing that the reality of the legal order is the creature of both human reason and human artifice; (3) Coalescence of fact and value: refusing to recognize a distinction between the law as is and the law as ought to be; and (4) Economics and natural laws of social order: “eunomics” or “the science, theory or study of good order and workable arrangements.”
In Fuller's perspective, a legal system which merely “clothes itself with a tinsel of legal form” and wholly fails to observe his eight principles of procedural law is not properly regarded as a legal system. These desiderata, which constitute the “internal morality of law,” are: (1) Generality —legal system should achieve general rules; (2) Promulgation—laws should be published; (3) Prospectivity—laws should be prospective; (4) Clarity—laws should be clearly stated and understandable; (5) Compatibility—laws should be compatible with one another; (6) Possibility—laws should not command the impossible; (7) Constancy—laws should not be subject to constant change; (8) Congruence—consistency between the law as declared and as administered. The formulation of procedural natural law is accomplished not by reference to external standards of morality or to the substantive aims of law but by postulating moral desiderata inherent in the law itself.
Fuller's concept of law may be characterized as a natural law position in studying the human condition's basic qualities; in adopting a purposive and aspirational conception of man; and, lastly, in building procedural rather than substantive ideas of “goodness” into the notion of law as good order which may then be evaluated by an internal morality contemplating the standard of a free, voluntaristic, and responsible agent.
Legal Realism vs. Morality
“The Limits of Legal Realism.” The Yale Law Journal 87 (Jan. 1978): 468–513.
Legal realism is generally agreed to be that which officials do in fact. The author suggests that one shortcoming of legal realism is its neglect of the normative dimension of the law. For example, in Nazi Germany some persons procured the imprisonment or execution of others for offenses against the regime. After World War II, some informers were prosecuted for such crimes as murder, false imprisonment, and deprivation of another's liberty. The informers' defense was that their actions were legal. A problem is raised when a subsequent law given retroactive application destroys the lawfulness of a statute.
. . . If an entire new set of officials can be imagined in any given legal system, then all conduct is potentially questionable. Is buying a house in the United States slightly illegal to a legal realist aware of the remote possibility that a communist regime might take over the country and prosecute the home buyer as a bourgeois capitalist? Surely the Nazi regime must have seemed very stable in the 1930s. . . For legal realists, the legality of any conduct can be questioned on the basis of imaginable future sets of officials.
Consequently, the author contends, legal realism fails to resolve the “grudge informer” case. Legal realism is tied to the prediction of actions of people who are either in power or who may come into power in a given territory. The dilemma is: “law” has to operate in the present and not retroactively, but new officials may arise and negate the enactments of present officials. The answer, the author feels, must be found in moral, not legal philosophy. Public perception of what is right appears to be the ultimate limit on the authoritativeness of “official” action.
The formal validity of an “immoral” statute may not compel the public to recognize its status as “law,” or the status of enacting officials as authoritative. A prime example might be the reaction of many Southern statesmen to the legislative decree without constitutional amendment by the U.S. Supreme Court in Brown v. Topeka Board of Education (1954). The Court's school desegregation decision was not necessarily recognized as valid since the Supreme Court was not, theoretically and “legally,” regarded as a law-making body. The public's perception of what is right may sometimes limit the authoritativeness of “official” action. “Official” and “authority” conveys a normative dimension rather than naked power and suggests a necessary relation between law and morality.
The notion that popular acceptance of the legitimacy of officials' entitlement to make authoritative decisions is grounded on morality (and not on purely legal construct) might reverse the “might makes right” world view of both positivism and legal realism.
Legal Philosophy and the Founding Fathers
“The Philosophy of Law of Four American Founding Fathers.” American Journal of Jurisprudence 21 (1976): 1–19.
The Founding Fathers John Adams, Jefferson, Hamilton, and James Wilson were generally united in a common purpose; however, their conceptions of the philosophical foundations of law and government differed.
All four men believed that moral principles are self-evident. But only Adams and Hamilton believed that such principles were ultimately derived from rational intuition. The end of law, thought Adams, is public happiness achieved through justice and respect for rights and consent. Law-givers should be concerned with utilizing reason as well as those passions which support the dictates of natural law as a psychological base upon which to build law and government.
Hamilton claimed that natural justice was based on a divinely ordained eternal law which “reason, unwarped by particular dogmas” could discover. Hamilton believed that the natural law required that “origin of all civil government, justly established, must be a voluntary compact” that respects “absolute rights.” Hamilton also distinguished between the majority of men, who are “entirely biased by motives of self-interest,” and the few who dispassionately discern the “dictates of reason and justice.”
In contrast to Adams and Hamilton, Jefferson denied that moral principles are rationally intuited and that there could be a demonstrative science of morals. For Jefferson, the foundation of morality is the individual pursuit of happiness or pleasure, which is made social through the pleasure-attending acts of benevolence. By giving morality a hedonistic underpinning, Jefferson was led by his hedonistic morality to view systems of laws as utilitarian superstructures. Natural rights are grounded in natural wants and needs. Jefferson did agree with Hamilton and Adams, however, that “nature provides every society with an aristocracy of the virtuous and the wise.” Since Jefferson saw the law and Constitution as an instrument for promoting the pursuit of happiness, he argued that each generation might restructure society as it chose.
James Wilson seems most strongly in the Thomistic tradition. For Wilson, every human mind can directly intuit the first principles of metaphysics and moral excellence. Man's political life is to be governed by applying the divine natural law to particular circumstances through human positive law. But the power of the state to implement the natural law is limited to those powers ceded to the state in the social compact.
Law and Scientific Inquiry
“God, Galileo, and Government: Toward Constitutional Protection for Scientific Inquiry.” Washington Law Review 53 (May 1978): 349–404.
The frontiers which modern scientific research is opening up (such as recombinant DNA research) has aroused fears that could lead to prohibiting certain types of research. The authors examine how existing constitutional doctrine applies to state action which prohibits, burdens, or declines to fund scientific research promotions because the state considers the promotion, the likely results, or the inquiry itself as inappropriate. The private writings of Jefferson, Franklin, Madison, and other colonial notables make it obvious that scientific ideas and “the scientific spirit” were central to the thinking of some influential colonial leaders. From this, the authors conclude that anything which might be labelled as “scientific” to be clothed in first amendment constitutional protection.
Next, the authors review the “scientist's right to conduct basic research” in case law. Their discussion of thinking, experimentation, and the rights to speak and publish, and to know and to teach lead them to conclude that the government has no proper interest in interfering with scientific activity simply because it may produce inconvenient results. The authors equate state repression or refusal to promote dissemination of unpopular ideas with the kinds of research involving the life of beings—such as the creation of chimeras for spare parts—and the nature of life itself. The authors make a case for including so-called “scientific inquiry” into the field for first amendment protection.
Freedom of Inquiry vs. Critical Theory
“Philosophical Perspectives on Freedom of Inquiry.” Southern California Law Review 51 (September 1978): 1115–1129.
As interpreted by Neville, liberalism (by which he means the Western liberal democratic outlook as found in Hobbes, Locke, Hume, Mill, Rawls, Nozick) evaluates scientific inquiry (e.g., recombinant DNA research) by stressing legal protection of persons and property as well as government's responsibility to disseminate information required for self-protection. Moreover, liberalism is technocratic in its singular focus on what means are efficient. It regards human reason as incapable of identifying what is and is not worthwhile, and what we should and should not do; it considers only what are efficient means, not ultimate ends. For example, it regards medical research as something that “enhances our social powers of reaching our goals,” but, the author argues, liberalism can say nothing as to the ultimate goals.
An alternative to liberalism is critical theory as advocated by members of the Frankfurt School, especially Jurgen Habermas. Critical theory owes its intellectual origins to Karl Marx, but the Frankfurt School, rejects the materialistic emphasis of Marx's philosophy, adding a crucial psychological dimension. The stress is on the “emancipatory interest” in human existence, namely, the promulgation of social, institutional, and political means to the full realization of human nature. “In light of the emancipatory interest, the problem of freedom for recombinant DNA research is essentially a political one. Given our present system of research, advances in scientific knowledge serve to strengthen the hands of the professionals who dominate the lay community both by defining the goals of health (and other professional services) and by controlling the distribution system. For this reason, although on the one hand it seems absurd to oppose an advance in knowledge that might bring great benefits to health, the interest in emancipation might very well determine that the overall power of the professional scientific community ought to be weakened nevertheless by restricting recombinant DNA research.”
A related problem is that our trust in experts erodes our democratic institutions and “an important area where democratic society has already achieved significant emancipation, namely, community control of what goes on in the community.” On the one hand, liberalism has its deficiencies: it denies something evident enough, namely, that some things are objectively more valuable than others; thus it limits morals and politics to subjective wants and wishes. To make sense of politics, this type of liberalism assumes the authority of these wishes and wants entitles one to what one wants, within appropriate coordinating limits.
Critical theory, on the other hand, is also troubled by difficulties: it advances an empirical view as to the objective values and yet denies the input of those who do not seek emancipation as critical theory understands this; thus it declares some people as less than human; thus critical theory denies its own insistence on universal dialogue.
What is needed is a “hypothetically objective” perspective on social values, one that is “subject to education, and that views authority as resident in the persons who are the authors of their own acts, and resident in the political process only in the ways and degrees people participate. . . .” For example, in the DNA case this might require giving up the value of freedom of inquiry.
Horwitz: Law and Economic Interests
Book Review of Morton J. Horwitz's The Transformation of American Law, 1780–1860. Wisconsin Law Review 4 (1977): 1253–1276.
Although interest groups shape the law to achieve their parochial goals, law itself helps shape the contours of society. The “Wisconsin School” of American legal historiography contends that the evolution of private law in America was related to the efforts of middle-class capitalists to utilize law to accelerate economic development. The Wisconsin School has emphasized economic issues and their relationship to legal doctrines and institutions, and has minimized jurisprudential, societal, political, and ideological themes in American legal history. Horwitz, who embraces the approach of the Wisconsin School to legal history, presents a basic theme: at the close of the American Revolution, the common law reflected precommercial, antidevelopmental values; during the next eighty years, a major transformation of the legal system took place which “enabled emergent entrepreneurial and commercial groups to win a disproportionate share of the wealth and power in American society. . . at the expense of farmers, workers, consumers, and other less powerful groups. . . .”
Horwitz carefully details the process by which nineteenth-century judges revamped property law doctrines to eliminate the agrarian, antidevelopmental bias which characterized the older common law. In general, a new theory of property gained acceptance, with similar results across the board: “. . . the idea of property underwent a fundamental transformation—from a static agrarian conception entitling an owner to undisturbed enjoyment, to a dynamic, instrumental, and more abstract view of property that emphasized the newly paramount virtues of productive use and development.”
The author feels that, contrary to Horwitz's assumption that economic motivations explain judicial behavior, history is not that neat. Rigid use of an economic model ignores the complexities of the real world such as the autonomy of ideas, the influences of institutional structures, and historical accident. In effect, Horwitz pursues a conspiracy theory of history, maintaining that the transformed character of the legal system did not result from a social consensus for development. Smith points out that there was no necessary causal relationship between the profiting of entrepreneurs from economic development and an alleged “worse off” status of other groups. Furthermore, there is some evidence that those burdened by the transformation of the legal system—“farmers, workers, consumers, poor whites”—enjoyed corresponding benefits from the new economic prosperity with the rising standard of living in the interim between the Revolution and the Civil War.
According to Horwitz, the emerging capitalist class had largely completed reorienting American law to serve its interests by around 1850. Once the legal system had adopted rules favorable to business and commerce, business groups sought to disguise the recent origins and biases of the new system and prevent further judicial innovations which might be redistributive. Consequently, the application of laissez-faire decision making came to dominate post-Civil War law. A basic theme was that judges were not considered lawmakers, but supposedly only applied uniform legislatively-decreed rules, policy was for the legislatures and not the courts. Smith questions the premise that the successful entrepreneurial groups somehow persuaded judges to swap an instrumental for a formal conception of law, having earlier adopted an instrumental view for the benefit of these groups. To Smith, the primary cause of the shift toward legal formalism in the later part of the nineteenth century was the emergence of the ideal of law as a science.