Front Page Titles (by Subject) I: Legal Philosophy - Literature of Liberty, Winter 1980, vol. 3, No. 4
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I: Legal Philosophy - Leonard P. Liggio, Literature of Liberty, Winter 1980, vol. 3, No. 4 
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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What is law?
What is justice?
What laws, if any, should we obey, and why should we?
What are the foundations of moral and legal values?
Should there be any legal restrictions on a person's freedom of speech, conscience, or action?
Legal philosophy discusses those broad Socratic questions as well as narrower issues that are equally vital to the creation and continuity of a free society. Historically, rival notions of law, individual rights, justice, property, and equity have played a major role in determining whether the social environment in which we live our daily lives is wretched or tolerable.
The following summaries take up the loftier Socratic questions as well as more specific constitutional questions involving human freedom. The first three summaries pose fundamental questions of legal philosophy. Judith Best's paper examines the neglected Socratic dialogue, the Minos, to analyze what is the essential nature of good law, what is the meaning of law as a process, and whether good law involves a process of true knowledge or merely a static, honored tradition. Next, Alan Goldman distinguishes between government officials and citizens concerning “the obligation to obey the law.” Roger Pilon's summary then seeks to avoid moral skepticism and establish a rational justification for human rights by developing the arguments of Alan Gewirth. Does the very notion of human action imply the right to act voluntarily?
The next four summaries investigate aspects of human freedom involved in the constitutional law and history of the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Alexis Anderson's and John Lofton's summaries delve into developments in the freedom of speech and press provisions of the First Amendment during the periods of 1870–1915 and post-World War II, respectively. Next, Abraham's summary studies the religion clauses of the First Amendment as it affects private conscience and the separation of Church and State. Stephen Vaughn's summary returns to a historical perspective of the First Amendment's guaranty of freedom of speech and details government censorship during World War I (the Wilson administration's Committee on Public Information).
The concluding Rizzo and Bensel summaries cast interdisciplinary light on legal questions from the fields of economics and political science. Mario Rizzo argues economically as to the preferability of strict liability over negligence approaches in tort law. The concluding Bensel summary reaches disturbing conclusions for democracy on how American Congressional law falls short of Friedrich Hayek's ideal of the “rule of law.” Employing the empirical tools of political science, Bensel has studied the actual congressional voting records for their lack of conformity to generalized statutory law.
The Minos: What is Law?
“What is Law? The Minos Reconsidered.” Interpretation 8(May 1980):102–113.
Plato's Socratic dialogue, the Minos is wrongly neglected in jurisprudence courses despite its theme: the nature of law. Socrates seeks to isolate the one distinguishing trait of law as law. He pursues his inquiry by cross-examining the “Companion's” series of likely answers.
At first, the Companion captures law as binding opinion by defining it as “things loyally accepted.” Socrates is dissatisfied and raises questions based on an analogy. If the Companion's definition is correct, then we must identify speech with things spoken and sight with things seen—an obviously erroneous equation. The analogy highlights the relationship between process and product. Law, therefore, is the process through which things are loyally accepted (the product).
In a renewed attempt to define the process of law, the Companion assures Socrates that law is “a city's resolution,” an opinion loyally held by the polis. The Companion's answer is morally neutral and tainted with democratic prejudice. A city statute, popularly accepted, is not necessarily good. Law, on the other hand, is good opinion, true opinion. True opinion is knowledge or the discovery of reality.
But how can law embody the discovery of reality when statutes differ, often radically, from place to place? The framing of realities in civic decrees, however, is a highly practical art whose artisan is the statesman, characterized by his deep knowledge of the process of framing laws rather than by his individual products.
To the consternation of the Companion, Socrates goes on to say that the ideal statesman is the Cretan King Minos, a monarch enjoying a rather unsavory reputation among Athenians. He is a true statesman because “his laws are unshaken.” Though they originated centuries before, they are still loyally accepted in a vital, functioning state —Sparta. Is Socrates contradicting himself here? Is good law the product of true knowledge or is it merely tradition?
The laws of Minos are ancient only in point of origin. They are still in the process of use in Sparta, and the best of Spartan law originated in Crete. The ultimate test of a process is its product. Lawabidingness and the preservation of cities comprise the essential product of law, and Sparta enjoyed a reputation for the longevity of its regime and the lawabindingness of its citizens. Minos' laws thus fulfilled their function superbly.
Socrates' praise of the longevity of Sparta's laws also corroborates, but at a higher level, the Companion's first statement that law should be defined as “things loyally accepted.” The first statement rehabilitated by Socratic wisdom, expresses the coherent unity of the Minos.
Obedience to Law
“The Obligation to Obey the Law.” Social Theory and Practice 6(Spring 1980):13–31.
The classic view of legal obligation developed by Hobbes and the positivists held that citizens are under obligation to obey the law, whereas higher representatives of sovereign power have no such obligation. Philosophers from Locke to Rawls have attacked this view, assuming that all have at least prima facie duties to obey law. Prof. Goldman's paper defends the positivist distinction between officials and private citizens, but it derives the opposite conclusion, namely that while officials have a specific obligation to obey the law, citizens do not.
Goldman bases his position on a philosophical separation of institutional from moral obligations. Of course, if legal obligations are to exercise normative authority, they must in some sense reduce to moral obligations. Institutional obligations are nevertheless distinct, since the legal requirement to obey laws prevails independently of the law's moral content. A judge, for example, must apply the law consistently and predictably, so that citizens who wish to remain within the bounds of the law may predict how they may do so. If judges were to decide cases on their moral merits rather than on the plain dictates of the law, consistent expectations would not be possible. On the other hand, inconsistency in the actions of private citizens would not produce such widespread negative effects in society.
Officials and private citizens likewise differ in their ability to ascertain morally relevant facts concerning parties who would be affected by their decisions. For a judge to decide a case on its moral merits, he would have to investigate the personal situations of all litigants, situations which would be legally but not morally irrelevant. The strict applicability of the law is far more clear-cut. In addition, the economic costs involved in making a thorough moral investigation would be prohibitive. For their part, private citizens do not adjudicate disputes between parties who are total strangers to them. They are thus usually in a better position to know the relevant situations of those toward whom they act.
Lastly, acceptance of government office may legitimately be construed as agreement or voluntary commitment to act officially within the confines of institutional powers and obligations. One such obligation requires obeying and applying law wherever called for. Private citizens are under no such contractual mandate.
The sanctions attached to law naturally make it prudential to perform or avoid certain behavior for those who fail to act on moral grounds. Indeed, the stability of society depends in large part upon routine acquiescence to accepted rules. Insistence on the citizen's moral obligations, rather than on his duty to obey the law, is the best insurance that legislators will take cognizance of moral factors as they frame their statutes.
Moral and Legal Justification
“On Moral and Legal Justification.” Southwestern University Law Review 11(4)1979:1327–1344.
We need to analyze the process of reason-giving on the level of both morality and law. We then should describe the flaws in justificatory approaches currently employed and sketch the kind of argument which would provide rational justification for moral and, in turn, legal conclusions.
Since John Austin's nineteenth-century analysis, a large part of Anglo-American jurisprudential thought has discerned little connection between law and morality. On the whole this separation has been as sound and useful as the more basic distinction between science and ethics. Nevertheless, the distinction is not air-tight, considering that law is ordinarily the encoding (with sanctions) of some ethical system.
With their traditional aversion to philosophical issues, lawyers have tended to avoid confronting some of the real difficulties involved in the rocess of justification—problems of infinite regress, circularity, the connection between facts and morals, etc. Whether moral judgments can be termed true or false has by itself vexed the best minds of the past two centuries, leading many to a skepticism which sees moral doctrine as having emotional or hortatory value, but lacking the dimension of truth.
Refutations of traditional natural law, utilitarian, or economic approaches which were surveyed would not necessarily abandon us to the no-man's-land of moral skepticism or to the vagaries of sentiment. On the contrary, we might uphold a rational justification for human rights based on generic features of human action as developed recently by Alan Gewirth. According to this argument, the murderer, rapist, or robber involves his victims against their will in a transaction with himself. He, on the other hand, is acting voluntarily. By acting conatively, the criminal implicitly claims rights to act voluntarily and purposively. Because he necessarily accepts these right-claims for himself (they are rooted in his actions), he must implicitly grant them for every other actor as well. Otherwise, he will contradict his own claims.
In completed form this argument would justify rights to non-interference in terms of the property foundations of our action; rights to voluntary association defined by terms mutually agreed upon; and rights to rectification if involuntarily involved in an association. None of the modern “social and economic” rights can be justified by arguments based on strict reason. “These conclusions, may not always be pleasing to our sentiments, but at least they can be justified, against the claims of the skeptic —and indeed, against those who would use this skepticism to violate our rights.”
Early First Amendment Theory
“The Formative Period of First Amendment Theory, 1870–1915.” The American Journal of Legal History 24(January 1980):56–75.
Many commentators assume that development of First Amendment doctrine began more or less with the free speech cases that arose out of World War I. Alexis Anderson, however, argues that First Amendment doctrine in fact underwent significant development between 1870–1915. Interestingly, this growth of First Amendment doctrine occurred not in the federal courts, but in state courts.
These state court cases arose as a result of the breakdown of American social homogeneity brought about by immigration, industrialization, and urbanization. Typically, the cases involved alleged violations of municipal ordinances that were ostensibly exercises of a municipality's police power. In particular, these ordinances were directed against breaches of the peace and unlawful assemblies and parades. The cases Anderson examines are based on incidents ranging from violations of anti-noise ordinances by drum-beating Salvation Army members to infractions of licensing ordinances by socialist street speakers.
Although the Supreme Court avoided involving itself in these free speech controversies by declining to incorporate the First Amendment into the Fourteenth Amendment, and although the state court decisions were a “mixed bag,” important doctrinal elements for protecting free speech emerged from them. Among those elements is the now familiar “speech/conduct” distinction. In addition, the trend of the cases was toward limiting the use of the police power to the regulation of speech, especially with regard to time, place, and manner, rather than permitting the police power to be used to prohibit speech. “Access to the public forum,” moreover, emerged during this period as an important First Amendment issue in the course of the litigation.
In sum, when the federal judiciary fiinally took up the free speech cases generated by World War I, it could draw upon the considerable experience amassed from 1870 to 1915 by the state courts. More importantly, much of that learning ultimately was incorporated into the free speech doctrine developed at the federal level.
The First Amendment & Freedom of Expression
“Freedom of Expression Since World War II,” The Press as Guardian of the First Amendment. Columbia, South Carolina: University of Carolina Press, 1980, pp. 231–278.
Using a classification developed by Professor Franklyn S. Haiman of Northwestern University, Lofton surveys the First Amendment case law decided after World War II. According to Professor Haiman, most major twentieth-century cases fall into one of three categories: (1) “expression involving provocation to anger and the problem of preserving the peace (fighting words),” (2) “expression involving political heresy and the problem of national survival (national security),” and (3) “artistic expression and the problem of public morality.” Lofton, however, identifies another area in which the courts in recent years have been very active: prosecution of journalists for refusing to divulge their sources in the context of criminal proceedings.
Lofton approaches his subject through research on editorial reaction to important First Amendment cases. For example, Lofton notes that in reviewing editorial responses to a “political heresy” case (Dennis v. United States.), of the twenty-three papers from virtually every section of the country, he found that nineteen supported the Supreme Court's decision upholding the Constitutionality of the Smith Act and the convictions based on it, two papers opposed to the decision, and two papers that had taken ambiguous positions. Strikingly, the liberal New York Times and the Washington Post were among the papers that gave editorial support both to the Act and to the convictions, whereas the St. Louis Post Dispatch and the Louisville Courier-Journal were critical.
The First Amendment and Religion
“The Status of the First Amendment's Religion Clauses: Some Reflections on Lines and Limits.” Journal of Church and state 22(Spring 1980):215–232.
Mr. Abraham is convinced that the free exercise of religion guaranty of the Constitution is probably better, in civil libertarian terms, than any other provision of the Bill of Rights. Constitutionally, the First Amendment was drawn, adopted, and understood to be a guarantee against any Congressional action prohibiting the free exercise of religion. It has become nationalized by interpretive extension. The “religion clauses consist of two components: prohibition of the free exercise of religion and prohibition of a federal establishment of religion are declared unconstitutional. Judicial extension of these guarantees was extended beyond its intent to circumscribe federal action only in 1934 in Hamilton v. Regents of the University of California with respect to the free exercise guarantee, and in Everson v. Board of Education of Ewing Township in 1947 with respect to the establishment clause.
Abraham finds a “commendably ascending commitment to a maximum regard for free exercise,” even when that exercise-cum-action does not sit very well with the body politic. The exception is the broadly controversial issue of conscientious objection to military service. Recent litigation has raised some rather novel, if not specious, claims to first amendment “protection” claims. Such novel claims include the claim by a “fanatically devout” public school teacher that the school's celebration of Halloween constituted a “pagan observance of every evil and wicked thing in the world” and thus violated his religious conscience. Abraham suggests that the mere fact that such challenges would be litigated “is living testimony to the high value the American body politic and its governmental organs bring to bear upon our religious prerogatives.”
By contrast, with respect to the separation of church and state clause (which was intended to prevent the federal government from giving preferred position to any religious body) Abraham feels that “once again that omnipresent and omnipotent alliance of lawyers and politicians has done us in.” Jefferson's concept of the “wall of separation between Church and State,” he asserts, has been demonstrably eroded. Three principle theories have come to be advanced as more or less compatible with the establishment clause. These are: (1) the “Strict Separation” or “No Aid” theory, which presumably interprets the constitution to require strict separation; (2) the “Governmental Neutrality” theory which requires state neutrality towards religion; and (3) the “Governmental Accomodation Theory,” likely the controlling one today. This theory holds that some reconciliation of the clash between church and state over the free exercise clauses can be accomodated under the “child benefit” doctrine (unless the children benefitting happen to attend racially segregated schools). Abraham sees an “alarming development” in the judiciary's “relaxed vigilance” in interdicting support for educational services in nongovernment schools.
The First Amendment vs. the CPI
“First Amendment Liberties and the Committee on Public Information.” The American Journal of Legal History 23(April 1979):95–119.
A threat to the First Amendment's freedom of expression resulted from the creation of a so-called “government publicity department,” known as the Committee on Public Information, by Woodrow Wilson's administration during World War I.
The man most responsible for establishing the Committee on Public Information (the CPI) was Arthur Bullard, a muckraking journalist and novelist who described himself as a socialist of the “aggressively revolutionary” variety. Bullard became involved in the issue of wartime censorship during 1916 as a result of the procensorship views expressed by the censor of the War Department, the then major, Douglas MacArthur. Bullard's reaction to MacArthur's position on censorship took the form of a memorandum that he submitted to Wilson's advisor, Colonel Edward M.House. In it Bullard argued that “the best way to stop enemy propaganda was to meet it with unvarnished facts.”
As America's entry into the war grew closer, Bullard became interested in the role of the press and of the government in reporting news during wartime. He outlined his thoughts on this matter in a book he published in the spring of 1917, Mobilising America. In his book Bullard claimed, as before, that sound public opinion required free discussion and that censoring debate was self-defeating. But at the same time he also stated that dangerous opinion could be best combatted “by constantly giving the man in the street something wholesome to think about.” A government publicity department, he maintained, should be established that could requisition space on every news paper front page in order to “feed ‘army stories’ to the public.” The publicity department should also set up a corps of press agents to make the war “understandable” and, thereby, popular.
Colonel House read Bullard's Mobilising America and stated on the day that the CPI was created that he agreed with Bullard's views almost entirely. Through his influence on Wilson and House, Bullard played a significant role in the initial organization of the CPI. Eventually he went to Russia and served in the CPI offices there.
The man appointed chairman of the CPI, George Creel, had an even more decisive influence in shaping government news “management” and censorship policies during World War I than Bullard. Creel was an ardent supporter of Wilson and of “progressive” causes and, like Bullard, was a muckraker. Further resembling Bullard, Creel often stated his opposition to censorship, although he did support censorship of overseas cables. Censorship was objectionable to Creel because it demonstrated a “distrust of democratic common sense.”
Even though the CPI technically had no power of censorship, it did censor in a serious way. Creel also soon attempted to use his power to encourage “voluntary” censorship by promulgating regulations for editors to help them prevent the publication of “dangerous” news. He also sought to obtain (for a board on which he served) the jurisdiction and funds to censor the mails and to repress material he felt presented dangerous ideas or portrayed the United States in an unfavorable light.
Vaughn contends that Creel's ambivalent attitude toward censorship was based on a belief that First Amendment protections are not absolute. Creel, “asked if legislation limiting free speech was compatible with ‘free public opinion,’... responded that Congress was the voice of the people. “The right of habeaus corpus is a safeguard of free speech, and we have no right to kick against a law after Congress passes it.” Vaughn believes that this may, in fact, have been the view of most Americans at that time. Prominent men such as Clarence Darrow and William Jennings Bryan, both of whom wrote tracts for the CPI, held similar views, and an intellectual pedigree was provided for this conception of the First Amendment by Constitutional scholar Edward S. Corwin. But whatever the dominant public opinion was at the time, the energies of the CPI were, in part, directed toward publicizing the position that free expression was not an absolute right and that the scope of the First Amendment rested with legislatures.
The Economics of Strict Liability
“Law Amid Flux: The Economics of Negligence and Strict Liability in Tort.” The Journal of Legal Studies 9(March 1980):291–318.
Professor Rizzo examines the efficiency rationale for negligence law and analyzes some of the economic aspects of a system of strict liability. He concludes that, since efficiency is an impossible goal for tort law and since the law cannot and should not aim for the impossible, we must reject both the normative and positive justification for the efficiency approach to tort law. Consequently a system of strict liability is preferable to one of negligence.
In a dynamic, real world the uncertainties of technological change, the ambiguities of foreseeability, and the absence of an objective measure of social cost make the efficiency paradigm an illusion. The strict liability standard introduces certainty in the legal order since courts do not have to grapple with such elusive problems as foreseeability, cheaper-cost avoider, social cost, and second best (all of which Rizzo discusses and illustrates as components in the dynamics of negligence). A system of strict liability, which holds a defendant tort feasor liable for damages proximally caused irrespective of the reasonableness of his behavior, is said to be superior to cost benefit analysis or judicial “fine tuning.” This is the case because we live in a dynamic world in which the information by the “fine-tuners” is not available.
Rizzo contends that strict liability would not necessarily increase the scope of liability. Since it is based on straightforward, commonsense causal paradigms, it would minimize the number of issues which must be considered in a given case. It should promote greater certainty about the locus of responsibility in accidents. This greater certainty promotes efficiency in the basic institutional sense because property rights become more clearly defined. By simplifying the grounds on which cases are decided, the parties to a dispute are more likely to agree on the probabilities of the outcome. This would result in less litigation and more out-of-court settlements.
The Rule of Law in American Politics
“Creating The Statutory State: The Implications of a Rule of Law Standard in American Politics.” The American Political Science Reviewer 74(September 1980):734–744.
Bensel defines the practical criteria for examining the implications of a rule of law standard in American politics. Using House of Representative voting records, he explores the major contemporary sources of support for and opposition to the concept.
Two of the stronger indictments of the modern state are those of Friedrich Hayek and Theodore Lowi. Each has argued that only the restoration of a rule of law can ensure the continued survival of democratic societies. For Hayek, the rise of the administrative state is accompanied by the decline of legislative law. He argues that state activity should be restricted to general statutory rules which can, because of their relative predictability and objective application, minimize the loss of individual freedom and economic efficiency threatened by arbitrary, lawless state intervention.
Lowi's discussion, somewhat less concerned with individual freedom and move statist in comparison with Hayek's advocacy of a minimal state, also advocates restoration of the rule of law. His interestgroup liberalism critique warns against the increasing reliance on bureaucratic discretion and the decreasing importance of statutory law. He advocates that a desirable juridicial standard is the rule implied in Schechter Poultry Co. v. U.S. (1936) which, if followed, would limit the amount of legislative authority that a statute could delegate to an agency.
Bensel measures conformity to the rule of law by voting records on amendments to bills in terms of whether the bill was “more articulate with the amendment than without it” (operationally defined as “relative conformity to a rule of law”). Bensel interpreted his results as suggesting that a parliamentary-type system in which the president and Congress closely cooperate within a relatively strong party organization may be incompatible with the rule of law. Reforms which strengthen such cooperation may ultimately weaken popular support for the “democratic” state. Therefore, supporters of the rule of law position appear to be at odds with advocates of a strong, heavy-handed, two party system. The development and application of the rule of law standard may indicate a basic incompatibility between the imposition of a rule of law and the establishment of a heavy-handed party government system.