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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.

Editor: Leonard P. Liggio

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

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II.

Legal Theory and Rights

Legal theory and policy intimately intertwine with ethical philosophy through such shared concerns as rights, value judgments, and justice. Legal philosopher, Lon L. Fuller, who is Literature of Liberty's cover subject for this issue, was one of a handful of the critics of legal realism during the 1930s and 1940s who sought secure and nonarbitrary moral foundations for traditional jurisprudence. Faced with the lawless brutality of totalitarian ideology during this period, Fuller championed a form of natural law as an active process of rational and ethical inquiry to counterbalance the dominant legal realism. Legal realism tended to identify law with the de facto edicts of any government. Fuller and other defenders of a free and reasoned society faced a “crisis in jurisprudence” in trying to establish a rule of law that constituted a logically and ethically defensible alternative to Realpolitik. (See Edward A. Purcell, Jr. The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value. Lexington: The University Press of Kentucky, 1973, chapter 9).

The following summaries also examine the complex interplay of ethical and legal issues. Such issues include natural law and human rights, privacy in its legal and moral dimensions. The concluding summaries examine the social, moral, and legal aspects of criminal justice, contract law, Hobbesian law and authority, civil disobedience, and the proper legal discourse appropriate between autonomous lawyers and clients. Throughout these summaries run interconnected themes of rights, autonomy, and legal authority.

The Constitution & Natural Rights

Edwin Viera Jr.

“Rights and The United States Constitution: The Declension from Natural Law to Legal Positivism.” Georgia Law Review 13(Summer 1979):1447–1500.

The Founders of the U.S. Constitution based their political philosophy on natural law in four ways. Natural law provided moral standards for virtuous men to govern their conduct; next, it defined ethical standards to guide positive law; third, natural law set limits to power, beyond which the government invited revolution; fourth, and most importantly, natural law was the source of natural rights which were antecedent and superior to government. Natural rights checked power and the sole justification of governmental power was to protect natural rights. From its very beginning, judicial review was marked by adherence to the principle that there were natural rights beyond and limiting statutory law.

The slavery issue and the Thirteenth Amendment confirmed this interpretation of the Constitution as a protector of natural rights. By the 1840s, slavery advocates, such as George Fitzhugh, no longer maintained that the Constitution upheld natural rights and that therefore it was not surprising that the Constitution upheld slavery. When the Thirteenth Amendment outlawed slavery, the Constitution was again interpreted as an expression of natural law/natural rights.

With the twentieth century, however, legislature and courts have discovered new economic and social “rights” to supplement the older natural rights to life, liberty, and property. Viera views such a new mix of rights as incoherent since fulfilling economic rights requires disrupting the spontaneous order of the market and personal rights. Legal positivism has accompanied the emergence of these new “rights.” Legal positivism, however, is inconsistent with American Constitutionalism, since positivism places the basis of the law in the will of the sovereign, while constitutionalism rejects absolute sovereignty by its doctrine of pre-governmental natural rights inhering in individuals.

Two doctrines reveal the courts' current committment to positivism. First, there is the “rational basis” test for seeing if governmental power interferes with constitutional liberty. This test asserts that governmental power infringing on a liberty is constitutional unless no conceivable set of facts would justify the power.

The positivist, Justice Holmes, in his dissent in Lochner vs New York (1905), argues that a law could not be said to interfere with liberty unless a rational and fair man would admit that the statute would infringe on fundamental principles as they have been understood by our tradition and law. Holmes maintained that the Constitution did not embody a timeless, unchangeable economic theory.

The second doctrine which has undermined legal and natural rights is the “balancing” doctrine. Here “incidental” infringements on a person's fundamental liberty are held to be permissible if they fulfill a legitimate and compelling governmental aim, if the government can show its use of power is directly related to that aim, and if the least restrictive means is taken to achieve that aim. This belief that the government can infringe on fundamental liberties for a compelling aim renders natural rights empty. Also, since the government is supposedly acting for its citizens, this doctrine implies that the compelling interests of some citizens for whom its acts are such that they require violating other citizens' liberty. Again, this view contradicts the theory of the Constitution.

What are Rights?

Alan Gewirth

University of Chicago

“The Basis and Content of Human Rights,” Georgia Law Review 13, No. 4(Summer 1979): 1143–1170.

Despite the great practical importance of the idea of human rights, some of the most basic questions about them have not yet received adequate answers. Are there such rights? How do we know there are? What is their scope or content, and how are they related to one another? Are any of them absolute, or may each of them be overriden in certain circumstances?

These are primarily substantive questions which require that we show that persons have rights other than those grounded in positive law or social custom. For if human rights are rights all persons have simply insofar as they are human, then for those rights to exist is for there to be valid moral criteria which justify their existence. When we look for such criteria or principles, however, not only do we find that no single set has been universally accepted; more fundamentally, the very context or subject-matter to which one should look to resolve the disagreements of moral principle is itself involved in disagreement, which neither traditional nor contemporary arguments have satisfactorily resolved. Nevertheless, a non-question-begging subject-matter for morality can be found by considering the general concept of morality. Amid the various divergent moralities, all agree that they are concerned with actions. For all moral judgments, including right-claims, consist directly or indirectly in precepts about how persons ought to act toward one another.

How then does the consideration of human action serve to ground or justify the ascription and content of human rights? It does so when we take a dialectically necessary approach, which proceeds from what all agents (or actors) logically must claim or accept, on pain of contradiction. In brief, because certain objects are the proximate necessary conditions of human action, all rational agents logically must hold or claim, at least implicitly, that they have rights to such objects; since the claim must be made or accepted by every agent on his own behalf, it holds universally within the context of action.

More fully, every agent regards his purposes as good on some (not necessarily moral) criterion; hence he also regards as necessary goods the proximate general necessary conditions of his acting to achieve his purposes. From a consideration of these necessary goods or generic features of action (freedom and well-being) we get the ascription and content of rights; for when claimed by the agent himself from within the context of conative agency, there is a logical connection between these necessary goods and rights. In particular, the agent's claim is prescriptive, advocating that he have these necessary goods; it carries the idea that these goods are his due, that he is entitled to them; and it is made against others who are claimed to have the correlative obligations. But these claims are based on prudential criteria only and hence are prudential, not moral rights.

In order to establish that these claims are also moral rights we have to show that each agent must admit that all others have these rights as well. This we do by showing that the sufficient reason on which the agent must hold that he has rights to freedom and well-being (namely, that he is a prospective agent who has purposes he wants to fulfill) applies to every other prospective agent as well. Thus by the principle of universalizability, every agent must accept that every other agent has the same basic rights to freedom and well-being that he necessarily claims for himself. There is then a valid moral criterion or precept which justifies human rights and which every agent must accept on pain of self-contradiciton, the Principle of Generic Consistency (PGC): Act in accord with the generic rights of your recipients as well as of yourself.

The generic rights to freedom and well-being are further specified by analyzing their components. The right to freedom consists in a person's controlling his actions and his participation in transactions by his own unforced choice or consent and with knowledge of relevant circumstances, so that his behavior is neither compelled nor prevented by the actions of other persons. Well-being, viewed as the abilities and conditions required for agency, comprises three kinds of goods: (1) basic goods are the essential preconditions of action, the rights to which are violated when we are killed, physically incapacitated, or when others fail to give us aid when we need it and when it can be given at no comparable cost to those others; (2) nonsubtractive goods are the abilities and conditions required for maintaining undiminished one's level of purpose-fulfillment and one's capacities for particular actions, the rights to which are violated when we are lied to, stolen from, or subjected to excessively debilitating conditions of physical labor or housing; and (3) additive goods are the abilities and conditions required for increasing one's level of purpose-fulfillment and one's capabilities for particular actions, the rights to which are violated when we are discriminated against or when we are denied education to the limits of our capacities.

Since these various rights and duties may conflict with one another, they are only prima facie, not absolute. but the PGC sets the criteria for resolving these conflicts, both in its direct applications at the interpersonal level and in its indirect applications at the institutional level. These indirect applications serve in turn to justify social rules and institutions, including both the minimal state and the supportive state. Thus the PGC requires that three kinds of rights receive legal enforcement and protection: personal-security rights, social and economic rights, and political and civil rights.

The Scope of Rights

Roger Pilon

Hoover Institution, Stanford University

“Ordering Rights Consistently: Or What We Do and Do Not Have Rights To.” Georgia Law Review 13, No. 4(Summer 1979):1171–1196.

As American courts have grown increasingly active in this century, and over the past two decades in particular, they have produced a veritable “rights explosion,” especially in the area of “welfare” or “social and economic” rights. But can all these rights be justified as a matter of moral theory—especially when they conflict with our traditional rights to liberty and property, and even with each others. More fundamentally, is the theory of moral rights consistent, or does it necessarily yield conflicting rights?

To sort these issues out, and in particular to determine what we do and do not have rights to, we have to look to the justificatory foundations of the theory of rights. For rights “exist” only insofar as that background theory shows them to exist, a theory that serves thus to sort out those right-claims that can be justified from those that cannot. When we look to that justificatory theory, however, or to the many versions there are of it, we find it up against the traditional problems of moral skepticism: certainly rights are not empirically determined “natural” features of the world, not in any straightforward sense at least; but if they are fundamentally assertoric—functions of interests or values, to be justified, as various positivist schemes would suggest, by “weighing” those interests or values—then moral cognitivism would seem to be all but impossible.

With the recent work in this area by Alan Gewirth, however, the cognitive and hence the justificatory foundations of the theory of rights appear to have been located and secured. Arguing along neo-Kantian lines, and following his dialectically necessary approach, Gewirth has shown that rights are inherent in the basic subject-matter of ethics, human action; in particular, they are functions of the claims to freedom and well-being that we implicitly though necessarily make in our voluntary and purposive behavior, claims that we must accept for ourselves as well as universalize to others, all on pain of self-contradiction. (See preceding summary.) In unfolding this “normative structure of action,” however, Gewirth seems very much to have overextended the argument, not unlike the modern courts. In particular, he argues that in acting we necessarily claim not only the freedom and well-being that are the generic features inherent in our actions and that underpin the traditional “negative” rights to noninterference; in addition, he says, claims to the positive beneficence of others are also inherent in our actions. Thus he goes on to argue for “positive” rights between individuals only generally related, and eventually for the supportive state and the social and economic rights that characterize that state.

As a matter of right, however, these positive general rights cannot be justified. For while it is true, as against the skeptic, that claims to non-interference are inherent in our conative behavior such that even the attempt to deny such claims entails our implicitly making them, with perfect consistency we can deny, as against the moral overreacher, that in acting we necessarily claim what is not ours to claim—the positive beneficence that belongs to others. When we look closely at the matter, we discover that the claims at the heart of the normative structure of action are fundamentally property claims—claims to the property we possess in our persons and our actions, the performance of which serve in turn to generate property claims in the world. As the classical theorists saw, then, however imperfectly, rights and property are inextricably connected.

While the generative arguments are fundamental to showing that we have rights and to showing what we do and do not have rights to, other arguments—from causality and consistency—serve also to show that there are no positive general rights. Like all universalization principles, Gewirth's Principle of Generic Consistency (PGC) is a causal principle: but without the explicit prescription to act, which it does not contain, the PGC cannot impose positive obligations; for the notdoings it permits, because they involve no changes in the world, are not causally efficacious and hence cannot be prohibited on the causal grounds implicit in the PGC. Moreover, because the PGC does permit the liberty of doing nothing at all and hence of being left alone, it cannot with consistency impose positive duties; for these would conflict with the right to noninterference that the PGC does entail. Thus at bottom the PGC is a principle of equal freedom, defined in terms of equal rights to be left alone in one's person and property.

Using the theory of general and special relationships, then, as well as a theory of alienation, all of which is implicit in the PGC and its background arguments, we can unfold the world of rights and correlative obligations entailed by the PGC. This involves showing how property in the world arises and how this property, together with our property in our persons and our actions, serves in turn to delineate our rights of contract and association, including familial association, as well as our rights against torts and crimes. In each of these cases the idea is to give some real content to our rights by locating their foundations in property and by defining their violations as takings of that property. Thus is ambiguity avoided and consistency preserved, at least as much as is possible; and thus are the points at which the theory of rights must turn to the theory of value located—in particular, in the areas of nuisance, endangerment, enforcement, and rectification.

It emerges then that the world of “first-order” rights entailed by the PGC—as opposed to the “second-order” rights of enforcement and procedural justive—is a consistent world in all but rare cases. Nevertheless, it is also a strict world—rooted in principles of reason, not in the (moral) sentiments. Accordingly, there may be occasions when we will not want to live with the strict requirements of the theory of rights, when we will want to turn to the theory of good by way of overriding rights. When we do so, however, we should be candid enough to admit that it is not by right that we override rights; rather we do so in violation of rights. And because the theory of value—and in particular the idea of “social value”—admits of nothing like the cognitive foundations of the theory of rights, we should override rights as a matter of law only on rare occasions, the better to preserve the point that the theory of rights describes the moral order in the broad range of ordinary cases, serving thus as the objective model for most of our law.

Corporations: Rights and Obligations

Roger Pilon

Hoover Institution, Stanford University

“Corporations and Rights: On Treating Corporate People Justly,” Georgia Law Review Vol. 13, No. 4 (Summer 1979):1245–1370.

The growth of the modern business corporation over the past century has encouraged an ever larger number of economic, legal, and historical studies of this institution—some critical, others defending it. Critics such as Berle and Means, for example, have questioned the “legitimacy” of the large corporation by pointing to the separation of ownership and control, to the “power without property” that characterizes corporate behavior. Ralph Nader and others have recently resurrected the “concession theory” to claim that because the state “creates” the corporation it has a right to regulate it “in the public interest.” In response, defenders of the corporation have argued it already serves the public interest and hence should not be further regulated. Their case, that is, has rested primarily on economic grounds alone. In fact, with the exception of Robert Hessen's In Defense of the Corporation, which focuses primarily on historical issues, we have had no systematic normative theory of the corporation, one that could tell us whether and why the corporation has rights, what rights (and obligations) it has, and what rights are held by those who interact with it—shareholders, directors, managers, employees, consumers, and members of the public generally.

The development of such a normative theory requires us first to set forth a theory of individual rights and obligations; for corporate legitimacy—the right of the corporation to exist—is a function of the legitimacy of the acts that bring the corporation into being. The theory of individual rights advanced here rests upon recent work in the theory of action which shows, along neo-Kantian lines, what it means for individuals to have rights, that they have them, and what things they do have rights to. More specifically, individual rights are functions not of values or interests but of property claims in oneself, one's actions, and in the world, which when explicated serve to underpin the broad areas of the common law—and in particular, serve to underpin the rights of association, delegation, and contract, the exercise of which lead to the creation of the corporation.

Corporations are legitimate, then, when they arise through the exercise of individual rights: i.e., when they arise without violating the rights of others. This means that each of the “features” of the corporation from entity status, to perpetual life, to limited liability for contracts and torts must arise and characterize corporate behavior in such a way as not to violate rights. This can be shown even in the case of limited liability for torts, which has always seemed an unjustifiable corporate feature; for close examination of the respondant superior doctrine, upon which this feature ultimately rests, shows that far from being a violation of the rights of tort victims, whose claims are held against individual corporate actors, limited liability for torts, absent contractual arrangements to the contrary, is a violation of the rights of inactive shareholders. As a corporate feature, then, limited liability for torts can be justified vis a vis shareholders when it arises through contract.

But if corporate legitimacy, i.e., the right of the corporation to exist, is a function of the individual acts that create this institution, then the further rights of the corporation are likewise functions of the individual rights of the corporate owners.

These owners do not lose their individual rights, that is, simply because they exercise them in concert. Corporations, then, have all and only those rights that their owners first have to exercise through this institution, those rights that the owners can exercise through such an institution, and those rights that the owners have chosen, in their articles of incorporation, to be exercise through their corporation. When applied to the wide range of issues before the corporation today, this analysis shows that corporations have most of the general rights of speech, action, and association that individuals have, all of the general obligations of noninterference (as with nuisance and endangerment) that individuals have, and all of the special rights and obligations of contract they choose to create. These findings apply to contexts as various as those involving production and pricing, hiring and firing, discrimination, pollution, product and workplace safety, disclosure, antitrust, bribery and kickbacks, board selection, going private and shareholder freezeouts, corporate gift-giving, and many more.

Although the theory of rights is only one domain of ethics, it is, for epistemological reasons, well suited to serve as a model for legal sanctions. Beyond rights, however, there are considerations of value, which is where issues of “corporate responsibility” appropriately arise. It is in this domain that the tension between civic virtue and economic survival comes to the fore, raising fascinating problems as it does, though these are problems best left to private solution.

The Meaning of Privacy

Jack Hirshleifer

University of California, Los Angeles

“Privacy: Its Origin, Function, and Future.” Paper delivered at the conference, The Economics and the Law of Privacy, University of Chicago, November 30–December 1, 1979(Working Paper #166).

Privacy, more than mere secrecy (an information preserve maintained about oneself) is conceptualized in terms of autonomy within society. Secrecy is only a component of privacy in the more fundamental sense articulated by Hirshleifer. Privacy goes more to the overarching social structure and ethos or supporting social ethic.

Hirshleifer's purpose is to examine the sources of the social consequences of the origin of the “taste” for privacy. Recognizing that culture, although important does not totally displace biological disposition, he contends that the three social principles of dominance, sharing, and private rights have evolved in Nature as adaptations of social niche. The taste for “private rights” is assumed to be an ingrained attitude laid down on eons of primate heritage.

It is, the author contends, a serious over-simplification to distinguish between “selfish” and “unselfish” behavior, between private goals and public goals, etc. While man does have egoistic, purely selfish drives, his social instincts are more complex, involving at the least the three distinguishable principles of dominance, sharing, and private rights. These ethics have evolved and have become ingrained in the human makeup in association with various forms of social organization over the history of mankind, with each structure being adaptive to the ecological parameters in which human association has taken place. While the taste for privacy in a given incident may represent nothing more than a selfish claim, insistence of one's own rights is also part of a two-sided ethic involving willingness to concede corresponding rights to others, and even willingness to participate as a disinterested third-party enforcer against violators.

Hirschleifer's paper is in an anthropological mode and follows an evolutionary model of analysis. He concludes that doubts should be raised as to the wisdom of maximizing aggregate wealth as the criterion of social policy, and that while it is conventional to deplore merely “commercial” ethics, societies organized on the privacy ethic “have given a good account of themselves historically...in terms of values we consider civilized.” Refusing to forecast the future prospects of privacy, as a social structure balancing individual autonomy with communal responsibility, he concludes that “they don't look very good!”

Privacy and the Law

Ruth Gavison

Yale Law School

“Privacy and the Limits of Law.” Yale Law Journal 89(January 1980):421–471.

Reductionists err in thinking that claims about privacy can be reduced to other claims: Gavison argues that privacy is a distinct value worth protecting legally.

Privacy has three irreducible components. Someone loses privacy to the extent that others (1) gain information about him (loss of secrecy), (2) pay attention to him (loses anonymity), or (3) gain physical access to him (loses solitude). All three criteria can be combined in one concept which we can call accessibility. If an individual is totally inaccessible to others, he would maintain perfect privacy.

Gavison's conception of privacy is opposed to other more general conceptions that see privacy as the right to be left alone or which equate invasions of privacy with assaults on human dignity. The first idea is too broad—it would cover virtually everything—while the latter is false (e.g. being forced to beg to survive may violate one's dignity without a loss of privacy. Also, privacy is a claim to noninterference with one's personal decisions misses the point, since one's objection to certain privacy violations (e.g. a central data bank) have little to do with the personal nature of the information acquired.

To see the value of privacy requires a functional analysis (i.e. we must see to what extent privacy promotes other things we value). Clearly, both total privacy and non-privacy are undesirable. Some degree of privacy is central to realizing an individual's goals under any theory of individual development. Privacy helps us to promote learning, creating, practicing, in that it enables one to concentrate and make mistakes with less pressure; and it helps to promote liberty in that it allows one to do certain things without fear of hostile or unpleasant reactions from others.

But, if there is some social norm which privacy allows one to violate, why not change the norms if we think they are undesirable or eliminate privacy if the norms are desirable? We cannot, however, change positive morality so easily, and privacy allows nonconformists to protect their lives against excess pressure. Thus Gavison argues against those like Posner and Epstein who see privacy in such situations as merely the opportunity to deprive others of information. Privacy in these instances, insists the author, comes about in the interstices between the need for diversity and the hostility that such diversity often provokes.

Reductionists, basing their argument on present day legal decisions, claim there is no distinct value of privacy. The author argues this approach is biased since the lack of coherence in judicial decisions can be explained by other facts—namely that other interests in addition to privacy have been invoked in the decisions. Furthermore, the reductionists approach is biased since it studies only actual court decisions. Yet there are strong disincentives for not going to court over privacy violations. These disincentives are threefold: law is a public mechanism and this strongly dilutes the point of using legal means to rectify privacy violations; also many people don't know about privacy violations and finally the remedies, such as rewarding monetary damages, may be totally inadequate given the psychological damage.

Finally, the reductionist approach makes privacy seem like a recent notion, since this approach only focuses on cases which invoke the privacy concept. But in fact the need for privacy is virtually coextensive with the human condition.

Gavison thinks her account, by beginning with extra-legal concepts, can show privacy to be a coherent concept, and thus will help to explain both the actual interest in, costs of, and functions of, laws involving privacy.

Given the above, it follows that a strong case can be made for the law containing an explicit commitment to privacy. Losses of privacy are generally undesirable. We need to reform the parts of the legal system which deal with privacy but do not as yet explicitly recognize this fact. Such a commitment to privacy would also give us protection against future invasions which are likely to occur given the increasing technological means of invasion.

Autonomy, Privacy, & the Family

June A. Eichbaum

Associate, Coudert Brothers

“Towards An Autonomy-Based Theory of Constitutional Privacy: Beyond the Ideology of Familial Privacy.” Harvard Civil Rights-Civil Liberties Law Review 14(Summer 1979):361–384.

This article focuses on the question of “what interest does the right of privacy protect?” Eichbaum argues that a familybased right of privacy is constitutionally and philosophically unsound. It is contended that a privacy right grounded in “conventional” interests of marriage and family (rather pejoratively, it seems, styled as “ideology” since the more desirable grounding in “individual autonomy” is not so labelled) seriously limits the “human dignity protected by constitutional guarantees” in that it “champions societal institutions and values and therefore perpetuates the status quo” rather than fostering freedom “to choose and adopt a lifestyle which allows expression of...uniqueness and individuality.”

According to the author, while a family-based right fits harmoniously with majoritarian sentiments, a family-based privacy right ultimately disserves both privacy and the family. Not only does it perpetuate the myth of family as haven from society, it shields the family from just damnation which it deserves both for its inadequacy in living up to the hallowed concepts with which it is intrinsically associated and accorded deference, but also for its utility as a backdrop of conventionality by which alternative lifestyles are judged as less than desirable and/or appropriate or acceptable.

Conversely, an autonomy-based right of privacy is a potent force for protection against discrimination or for remedying lack of official favor based on sex preference and behavior and other styles of normative deviance. Philosophically, this frees the notion of privacy from entrapment in the vision of a person as an instrumentality toward the higher goal of the abstract family unit (thereby violating the basic principal of individual equality and autonomy which is at the core of a civil right) and counteracts the discriminatory conceptualization of individuals as members of a family unit “by reducing their human significance vis-à-vis the abstraction of which they are a part.”

The Supreme Court's decisions are said to manifest a disturbing ambivalence toward the autonomy-based formulation of privacy in the indication that certain forms of perversion may be regarded as beyond the outer limits of that which will be adjudged as acceptable behavior according to the normative principles of the judges. For example, it appears that the Court, at least for the time being, has chosen to avoid extension of the “right of constitutional privacy” to cover consensual sexual conduct between adult homosexuals. Recent Court decisions have “clearly served to extend the autonomy-based right of privacy” by invalidating state legislation that prohibits the distribution of contraceptives to children. The author finds it nevertheless a disturbing indication that “the reproductive autonomy of minors and unmarried individuals is protected only because it is somehow incidental to the protection of marital privacy, while consensual sexual conduct between adults of the same sex is not protected because it does not implicate reproduction or other incidences of marriage.” Eichbaum concludes that:

“...The Court's apparent attitude toward consensual sexual relations...is in need of change in order to conform to an autonomy-based conception of privacy. It is to be hoped that the Court will, in time, fully commit itself to the autonomy-based conception of privacy which many of its decisions already suggest. Anything short of an autonomy-based right, whether or not its expression occurs in the context of the family, is a sham when advanced as a civil right....”

Privacy & Freedom of the Press

Thomas I. Emerson

Lines Professor of Law Emeritus, Yale Law School

“The Right of Privacy and Freedom of the Press.” Harvard Civil Rights-Civil Liberties Law Review 14 (Summer 1979):329–360.

The right of privacy as an independent concept made its first appearance in American law as a civil tort whose remedy was suit for damages or injunction in protection against unwarranted invasion of the “right to be let alone.” Its first articulation was the renowned article by Warren and Brandeis in the Harvard Law Review (1890). As an alleged and court decreed constitutional right against state interference with inner zones of space pertinent to “individual dignity and autonomy,” Griswold v. Conn. (1965) is the premier case.

While freedom of the press has a long and well-established history in American law, the theoretical foundations of the right of privacy remain relatively unformed and inchoate. Against this background, coupled with such modern developments as the increasing scope of governmental intercession in most areas of national life, the development of modern technology for ferreting out and monitoring everyone's affairs, and the closing in of physical and psychic space for the average person, the need for creation of an adequate law of privacy is imperative for the future health of society.

Emerson concedes that on most points the law of privacy and the law sustaining a free press are mutually supportive features of the basic system of individual rights. There are, however, two major areas when accommodation must be developed. One of these is where the privacy right comes into sharp contrast with the right to publish. The other involves the rights of the press to obtain information from the government which confronts an individual's claim that data about one's personal affairs may be inappropriately disseminated by invocation of right-to-know principles.

In examining the conflict between the status of the law concerning the right to publish and the privacy tort, Emerson surveys theories of the right to privacy, and traces the formulation and application of legal doctrines and remedies. With respect to the conflict between the right of privacy and the right to obtain information, Emerson examines the legal basis and right of the press to obtain information, the legal basis of the right of privacy, and the application of privacy protection.

His overall objective is to make some progress toward formulating an accommodation between the freedom of the press which has an ancient lineage in our jurisprudence and the right of privacy which has developed out of the needs of a technological civilization. Both are now vital features of our system of individual rights. Emerson suggests that a balancing can best be achieved by focusing more on the privacy side of the equation than has been done in the past since the press is strong, healthy, and well-organized, whereas individuals whose privacy is at stake are scattered and weak.

Social Science, Law & Criminal Justice

Tommy W. Rogers

Attorney, Jackson, Mississippi

“Social Science Influence and Its Inter-Relationship With the Criminal Justice System: Law and Institutional Practice.” Journal of Constitutional and Parliamentary Studies (India) 11 (January-March 1977):50–74.

The social climate of the 1960s modified the social order and the institutions of social order. One modification emphasized law as an instrument for ameliorating social problems. Radical or critical criminology emerged out of the sociohistorical events that influenced this intellectual climate of the 1960s and early 1970s.

Radical or critical criminology presents the prospect of making a profound impact on academic, popular, and judicial thought about crime and society. It has shifted the focus away from crime, the criminal, and criminality toward a focus on agencies and agents who deal with crime. From this perspective criminal law and its enforcement function as instruments for the control of one social class by another. This new perspective has helped focus attention on how the normative content of criminal law is internalized in different segments of society, how norm holding is related to behavior, and the nature of the legal, social, and administrative apparatus designed for the control of crime.

The author reviews the broader arena of social science and court decisions which have influenced criminal justice; noncourt influences of social science on the criminal justice system; the relevance of the victim; post-adjudicatory processes; the judicial concept of the sentencing role; the philosophy of social reconstruction; the irrelevance of justice; the sociology of law; public attitudes and policy implementation; as well as models of criminal justice.

Contract Law & Justice

Anthony T. Kronman

Yale Law School

“Contract Law and Distributive Justice.” The Yale Law Journal 89, 472(1980):472–511.

The law of contracts has three agreed upon functions: specification of arrangements which are legally binding; definition of rights and duties created by enforceable agreements; indication of consequences for unexcused breach. Beyond these universally recognized functions, however, has been the suggestion that the law of contracts should be used as an instrument of distributive justice in a selfconscious effort to achieve a “fair” distribution of wealth.

In the libertarian view, the state is never justified in the forcible redistribution of wealth. Many liberals, though believing in the desirability of compulsory reallocation of wealth by politically derived favor, are also opposed to the use of contract law as a mechanism for redistribution because distributional objectives are better achieved through the taxation and reallocative process of the state. Kronman, by contrast, argues that the nondistributive concept of the function of contract law is not supportable either on libertarian or liberal grounds, and attempts to articulate and defend a position that a conscious teleological use should be made of contract law for the purpose of accomplishing desirable redistribution.

Kronman challenges the univeral validity of the libertarian position by questioning the justice inherent in the voluntariness of exchange. He adopts a working postulate that when a libertarian asserts that contract law should not be used to redistribute wealth (he assumes that the redistributive direction is from rich to poor), his position is reducible to one of two claims: either existing inequities are justified, or that contract law is an unsuitable instrument for correcting inequities which are unjustifiable.

Noting that wealth may be redistributed through taxation or through contractual regulation, the author challenges the alleged liberal preference for taxation by questioning whether it is either less restrictive of individual liberty or more neutral than is contractual regulation. His ultimate conclusion—assuming one desires to utilize a coercive apparatus in the form of state rules and regulations to reallocate the product of one group or class on behalf of a more favored group or class (making the only viable question that of how the redistribution of product should be accomplished)—is that both taxation and regulatory control of private transactions are equally appropriate, and the choice between them ought to be made on the basis of the situation.

Hobbesian Law & Authority

Robert Ladenson

Illinois Institute of Technology

“In Defense of a Hobbesian Conception of Law.” Philosophy and Public Affairs 9(Winter 1980):134–159

Against H.L.A. Hart's objections, Ladenson defends a Hobbesian conception of law where the subjects habitually obey the sovereign who obeys no one. Since the Hobbesian conception of law leaves out the legitimacy of governmental authority, Ladenson proposes the following remedy. Governmental authority involves both governmental power—the ability to keep peace within a social group—and more importantly, a right to rule.

Ladenson denies that all rights have correlative duties. Only rights which involve claims made against other individuals have correlative duties. The right to rule is a “justification right.” In the case of governmental authority, the right to rule gives the government the right to engage in coercive action which would otherwise be impermissible if exercised by private citizens. Ladenson claims this right to rule is justified by human nature and the desire to avoid mutually destructive conflicts.

Since the right to rule, which is part of governmental authority, involves no claim that the citizens must obey the law or that any use of coercive power by the state is justified, one could uphold the government's right to rule while still maintaining the government ought not to exist. Ladenson claims this accords with common sense. For instance, this concept would imply that the Nazis, not private citizens, had the right to arrest traffic violaters, while also implying that the citizens had the right to resist Nazi rule.

Can the Hobbesian conception account for the persistence and continuity of law? As to persistence, if law emanates from the sovereign, why can laws made by an earlier regime still be law under later regimes? There could be a general policy that such laws will have effect unless explicitly overturned.

As to continuity, Hart raises two objections. According to the Hobbesian, a successor to an accepted ruler cannot be considered a sovereign at first, since we do not know if the subjects will accept him. Ladenson replies that such acceptance can begin immediately if there is a strong tradition of succession.

Hart's second argument is that the successor's immediate accession to the throne does not stem just from subjects' acceptance but from a right to make law grounded in a rule of succession. But, Hobbesian theory has no room for such a right. The author responds that the notion of sovereignty includes the right to rule. If the successor inherits this right to rule, the alleged rule of succession is irrelevant; if the successor has an uncontested right to rule he can exercise governmental power to make law.

Hart's most serious objection against a Hobbesian conception of sovereignty holds that it cannot give an account of a legislative power which is constitutionally restrained by the courts. Such a system would transcend sovereign laying down and upholding laws. Ladenson replies with a reconstruction of Hobbes. In the spirit of Hobbes, each branch of government could have sovereignty in carrying out its functions, but be subject to the sovereignty of other branches as they carry out their own functions. If it is true that each branch has the power to carry out their own functions and each resists encroachment on its terrain by other branches, then each branch has governmental power to maintain peaceful relations.

Civil Disobedience & Legal Obligation

Joel Feinberg

“Civil Disobedience in the Modern World.” Humanities in Society 2(Winter 1979):37–60.

The author discusses the question: does one have the right to commit civil disobedience? By civil disobedience Feinberg means disobedience to political authority, done from the motive of devotion to a higher cause, which violates the laws of the state, and which leaves one open to criminal sanctions. Civil disobedience differs from ordinary crimes which are committed from the usual notions of greed, desire to harm others, etc.; and it also differs from revolutionary acts against the state, since the disobedient by and large respects the political structure. Civil disobedience also differs from a situation where one desperately breaks the law in order to avoid a greater evil (e.g., borrowing a stranger's car without permission in order to get a heart attack victim to the hospital); since courts generally accept pleas of necessity to exonerate such crimes, the lawbreaker is not being a civil disobedient. Finally, Feinberg distinguishes civil disobedience from persons who deliberately break a law for the purpose of a “test case,” since that person sees himself as performing a legal act and hopes that the courts will declare the law he has broken to be an invalid law.

Most philosophers today no longer believe one has an obligation to obey any law just because it is a law; those that do believe there is such an obligation believe it holds only in a reasonably just and fair society and that it is a prima facie obligation (PFO). Feinberg interprets the notion of a PFO as a relevant supporting reason which may not be a conclusive reason since there may be reasons on the opposite side of the issue. When one has a PFO to do A, not doing A is wrong unless there is a reason not to do A which is at least as strong. If there is PFO not to engage in civil disobedience, then it is presumably derived from more basic PFOs such as that of gratitude (to return favors), fidelity (to keep promises), fair play (not to exploit, cheat, or take advantage of others), and that of justice (to maintain, uphold, and help establish just institutions). Feinberg rejects all of these attempts.

The argument from the PFO of gratitude is that by accepting the state's benefits one incurs debts of gratitude. If this argument is supposed to show the ground for the genuine feeling of gratitude, then, it must show that the state's benefits are gifts and that they were given from benevolent motives; even if this is shown, there can be no duty to feel grateful; and even if there was such a duty, it would not imply a duty to reciprocate. Finally, even if there was a duty to reciprocate, it would not take the form of obedience to the laws, for no gift entails a right to direct the receiver's behavior.

The argument for the PFO of fidelity sees the state's benefits as more like loans than gifts; since we have consented to take the loans (i.e., consented to obey state authority), there is a PFO to obey the state's laws. Since no one really grants such consent, the argument quickly shifts to the claim that one has tacitly consented, i.e., that one's consent can be inferred by one's continued residence in the county or by acceptance of the state's benefits. But one cannot consent unintentionally or unknowingly. And even if we design a political procedure whereby continued residence would be taken by the citizens to be equivalent to consent (the way silence at a meeting, when the chairman says “Anyone who objects has a minute to speak now,” is taken to mean consent), the opportunity to emigrate does not provide one with a genuine choice that the argument from consent requires.

The argument from the PFO of fair play is that citizens obey the law on the belief that others will do so, and therefore that the burdens of complying with the law will be spread fairly throughout and will be congruent with the benefits achieved by social cooperation. On this view the law breaker takes advantage of his fellow citizens, and thus the PFO is owed to them and not to the state. While this view may be plausible for certain forms of civil disobedience, not all forms of civil disobedience can be construed as taking advantage of anyone. Furthermore, insofar as the benefits deriving from obeying the laws fall unequally on different groups, then the argument from fair play can have little point for those who receive few benefits.

The argument from the duty to uphold just institutions has again some point with regard to certain types of laws, but again not all law breaking or civil disobedience can be construed as damaging just institutions. Insofar as civil disobedience or law breaking helps to provide a safety valve for societal pressures, it can be thought of as strengthening just institutions.

We may conclude that there is no PFO to obey the laws of a reasonably fair and just society, and thus that at least some forms of civil disobedience are justified. While in such a society most of the laws protect things that are worth protecting (e.g., avoiding harm to others), and thus should be obeyed, this is not because they are laws but because they legally protect certain important values. In such a society, there may be a statistical presumption that the law breaker is committing a wrong, only because of the laws' connection with these values.

Law as Moral Conversation

Thomas L. Schaffer

University of Notre Dame

“The Practice of Law as Moral Discourse.” Notre Dame Lawyer 55(December 1979):231–253.

A lawyer's conversation with a client is a moral or ethical conversation since it always involves notions of obligations, rights, the legitimate use of coercion, and damages. There are three ethical models for the lawyer's attempts to represent the client.

First, the ethics of role. On this view, the lawyer serves the client's own good, either following what the client wants or paternalistically telling the client what to do. The former approach involves a laissez faire or adversary ethic argument (the lawyer need not worry if his client is right, for the adversary system balances interests). The latter approach involves lawyers either imposing some moral standard on ordinary people or representing the worst off's interest in order to promote a better society. In either case, the ethics of role is inadequate, for both approaches serve the system. The first case justifies suspension of judgment on the grounds that the adversary system will straighten everything out, in the second case, justifies paternalism by the claim that the lawyer is supposed to be an agent promoting better social norms. Both cases hold the misleading assumption that questions of conscience or the limits of power are irrelevant to the lawyer-client relation.

The second model of lawyer-client relations is the ethics of isolation. Here if the client wants something which the lawyer disapproves of, the lawyer announces this is so (e.g. “I won't make up a will which disinherits your wife and children”). The client then either changes his mind or provides some reasons for what he is doing. The lawyer then either accepts this or refuses to take the case. This approach involves assertion of the lawyer's conscience, but it involves assertions rather than reasoning on both sides. The lawyer and the client do not really communicate or influence each other. Such moral insulation tends to lend a false confidence to the stature of one's moral principles. In short, the approach is totally risk free for the lawyer—his moral world will remain invulnerable.

The third model (which Schaffer prefers) is the ethics of care. Here the lawyer and the client have a genuine moral conversation with both sides respecting one another's autonomy. Borrowing from Gerald Dworkin, Schaffer suggests this involves allowing the client to reflect on his interests, providing him with the requisite information and not deceiving him, and using methods which involve collaboration. Because of the openness and mutuality of this conversation, moral communication may take place.

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