Front Page Titles (by Subject) IV: Law, Liberty, and Political Thought - Literature of Liberty, Autumn 1981, vol. 4, No. 3
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IV: Law, Liberty, and Political Thought - Leonard P. Liggio, Literature of Liberty, Autumn 1981, vol. 4, No. 3 
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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Law, Liberty, and Political Thought
Literature of Liberty has repeatedly emphasized the necessity of sound legal and political philosophy in establishing a free society. In past issues, our journal has devoted numerous summaries to the interconnections of law, legislation, liberty, and rights [see for example Literature of Liberty 3(Autumn 1980), for both the editorial on Lon L. Fuller and the summary section on “Legal Theory and Rights”]. The topics treated in this section cover judicial interpretation of the First Amendment, the tort-crime distinction, the law and economics approach, the juristic notion of corporations, London's “first charter of liberties,” and historian J.G.A. Pocock's clarification of the distinction between the liberal tradition's notion of rights and liberty and the more politicized notions of virtue and manners.
To supplement the first summary ofThomas I. Emerson's article on the First Amendment, the reader may wish to consult two earlier summaries on First Amendment issues by the same author, appearing in Literature of Liberty 2(January–March 1979):64–65, and 3(Autumn 1980):70.
The First Amendment & The Court
“First Amendment Doctrine and the Burger Court.” California Law Review 68(May 1980):422–481.
In the period since the Burger Supreme Court has taken over from the Warren Court, there have been a few major changes in the position of free speech in the American constitutional system. Nevertheless, the Burger Court failure to adequately define a coherent position concerning the scope of freedom of expression has allowed the government to abridge individual liberty. Attempts by theorists such as Tribe and Baker to establish acceptable standards in this area are inadequate to the role of the system of freedom of expression in our national life. A more promising approach includes as a key constituent reliance on the expression—action dichotomy.
Freedom of speech is important because it is essential to several underlying values. These include (1) individual self-fulfillment; (2) the advance of knowledge and discovery; (3) participation in political decision making by all members of society; and (4) the proper balance between stability and change. While there is a broad consensus in society on the value of free speech in promoting these values, there are many disputes on how the doctrine of free speech should be implemented.
In particular, the Supreme Court must answer two questions: what conduct comes under the protection which the First Amendment accords to free speech; and how extensive is the protection which the Amendment provides for free speech? The Warren Court's answers to these questions can be criticized on some points. For example, the “clear and present danger” limit is unacceptably restrictive. Also, the Court's stress upon balancing free speech protection against other constitutional requirements fails to take adequate account of how essential freedom of speech is to our system of government. The Warren Court did, however, display sensitivity in some areas, e.g., the development of a “right to know,” to the problems posed by attempting to implement the system of freedom of expression.
The Burger Court is more open to criticism than the Warren Court. It has been intent even more than its predecessor in “balancing.” This has advanced to such an extent that the key doctrine of the “preferred position” of freedom of speech is in danger of being undermined. The rule in question provides that because of the fundamental importance of civil liberties, attempts by the government at restricting First Amendment freedoms must be judged with the strictest scrutiny. The Burger Court's ad hoc approach manifests in insensitivity to this doctrine.
Attempts by recent legal theorists to provide an acceptable rationale for a detailed policy on free speech have not been fully successful. Tribe's distinction between regulations aiming at curbing free speech and those (“track-two”) rules which aim to limit the non-speech effects of free speech allows for too much interference. Baker's stress upon the values free speech promotes is on the right path and his category of “coercive speech” is a valuable contribution. An even better analysis, however, would rest greater weight on the distinction between action and expression. Common objections to this approach (e.g. vagueness of the two terms definitions) can be overcome.
Is the Tort/Crime Distinction Valid?
“On Moral Justifications for the Tort/Crime Distinction.” California Law Review 68(March 1980):398–421.
The reasons for the common distinction between torts and crimes have received surprisingly little attention in the legal or philosophical literature. The problem specifically is the following: certain actions, called “crimes” are usually held to be subject to more severe penalties than the compensation to the victim required in order to rectify actions called “torts”. Why does this dichotomy between torts and crimes exist? That is to say, why ever go beyond compensation?
Any acceptable answer to the problem posed above must meet three requirements. First, we must set forth an adequate moral theory which can deal with this question. Second, we must explicitly state the interests which benefit from imposing prohibition rather that mere compensation. Third, we must state the means, consistent with the moral theory postulated in the first step, to secure the interests identified in the second step. In addition to these formal constraints, an acceptable theory must also meet substantive requirements. Specifically, the theory advanced must satisfy our moral intuitions.
Four theories giving reasons for the crime-tort distinction fail to meet these requirements fully; but one of them, Robert Nozick's, does meet the formal requirements and perhaps can be modified to meet the substantive ones as well. The other three theories fail the formal requirements completely.
The first of these theories rests the crime-tort distinction on distinction between public and private interests. What a public interest is has never been adequately specified, nor has a reason been given why all violation of public interests ought to be prohibited. Similarly, attempts to rest the distinction on how much harm the crime or tort causes fails because harm has never been defined adequately. More generally, all utilitarian approaches to the problem, e.g. the economic efficiency standpoint, suffer from problems of definitional inadequacy.
Nozick's theory rests upon the fact that some actions, such as those which impose a risk of bodily harm, impose as a concomitant a general fear which cannot be adequately remedied by compensation. While Nozick's approach can be shown to satisfy the formal requirements presented above, the assumption of a right to be free from fear seems inconsistent with the libertarian moral theory Nozick advocates.
Nozick's argument can be reconstructed to provide a more acceptable theory. In this version, the individual, rather than the state, would be the one to decide when compensation was inadequate as a response to an act invasive of rights. The desire to be free from fear can certainly play a role in an acceptable moral theory, as can the satisfaction of other emotions, such as anger. All of this satisfaction of emotions, however, must take place within the framework of the individual's Lockean rights.
The Economic Approach to Law
“Efficiency, Exchange, and Auction: Philosophic Aspects of the Economic Approach to Law.” California Law Review 68(March 1980):221:249.
The approach termed “law and economics” is widely influential in American law schools today. “Law and economics” applies the techniques of modern welfare economics to legal problems. This approach can be either descriptive or normative: by using economic techniques, we can explain legal institutions, or we can assert that economic criteria ought to be used to reform existing practices.
Probably the most important proposition of law and economics now is “Coase's Theorem.” Suppose that a farmer and a rancher are neighbors. The rancher wants to add an additional cow to his stock. This will impose some cost on the farmer, since a roaming cow will damage his crops. One might at first think that whether a cow will be added to the rancher's stock will depend on what property rights the two parties have. Perhaps surprisingly, R.H. Coase has been able to show that, under certain assumptions, the maximum productive use of resources does not depend on the initial assignment of rights. The two parties will bargain until the one who values the disputed claim more obtains it. Initial assignment of rights can affect the relative wealth of the competing parties, however.
George Fletcher has argued that Coase's Theorem does not insure that a “Pareto Optimal” outcome will result from negotiations. (A Pareto Optimal outcome is one in which resources cannot be shifted from one person to another without making at least one person worse off. A Pareto superior position is one in which one can make at least one person better off without making anyone else worse off.) Fletcher argues that Coase's Theorem will insure position. Allocative efficiency is achieved because it is assumed by the theorum that the parties want to maximize wealth.
Coase's Theorem leads to a different approach to externalities from that advocated by A.C. Pigou, the founder of classical welfare economics. An externality is an effect of one's production on someone else that leads to a welfare loss. Suppose, for example, that smoke from a factory pollutes the air of the surrounding neighborhood. Pigou's solution was to tax the factory, thus making it absorb the cost of the pollution. Coase's solution is to let the affected parties bargain. Although Coase's Theorem uses a confused notion of causation, this does not affect the practical value of his results. In some cases, Pigou's approach leads to an inefficient outcome.
If the market cannot assign property rights, how should they be allocated? One of the most important proponents of the law and economics approach, Richard Posner, favors an auction rule. According to this rule, one assigns the property right to the party who would have obtained it if there had been a market transaction. In other words, we should mimic the market. It is argued that Posner's rule derives from the Kaldor-Hicks concept of efficiency. According to it, a distribution in which some gain at the expense of others is efficient if the winners could compensate the losers. Note that they are not required to actually do so; the Kaldor-Hicks requirements are satisfied if they could do so.
Why is Posner's auction rule desirable? In actual market transactions, the winners actually have to buy out the losers. Why should property be awarded to those who would have won out in a market, without requiring that they pay compensation? Posner's rule guarantees neither a Pareto optimal nor a Pareto superior result. On the other hand, it is not clear that one always should compensate the losers.
The complexities discussed above suggest that the law and economics approach does not have a simple solution to the intractable problems of legal theory. Considerations other than economics are important and must be taken into account. Nevertheless, the law and economics school should be taken seriously.
Corporations, the People, and Italian Jurists
“The Corporation in the Political Thought of the Italian Jurists of the Thirteenth and Fourteenth Centuries.” History of Political Thought 1(Spring 1980):9–32.
The Italian jurists—civilian and canonist—made a major contribution to the development of corporation theory in political thought. One of the major forms of political corporation which the jurists considered was the independent city-republic which was founded at the time in north and central Italy. To account for this development there emerged a juristic theory of government by the people. Two of the most important theorists of the idea were Baldus of Ubaldis and his teacher, Bartolus of Sassoferrato.
The populus, or citizenry, as Baldus saw it was both a unity and a plurality of human beings. As a corporation it became a distinct legal entity. In joining together into a unity the individuals become a corpus misticum. The populus can act because, while it is an abstract entity, it is also a body of real men.
Medieval jurists took these basic concepts further by maintaining that the corporation, being a unitary entity, is equated thereby with a single individual; thus they arrived at the definition of a legal person. Out of this grew the discussions of “fiction” and “realist” theories carried forward by scholars such as Otto Gierke. Those who argued the fiction theory did so because they disagreed with the conceptual jump of equating the corporation to an individual person.
But the medievalists do not readily breakdown into Gierke's dualism. They were more concerned with the structure of the corporation than with its legal personality. Medievalists did not, for example, use the concept of fiction in a perjorative sense. Jurisdiction lay with the whole corporation, and not just its head.
For Baldus, especially, membership in the corporation transformed a person from being an isolated individual into the role of citizen. This self-governing entity is a natural development rather than a grant from any superior in a theocratic system. The citizen thus has autonomous rights within the populus.
The populus as a corporation is distinguished from the individual in that it is ongoing and thus perpetual, or immortal. Secondly, the populus is a territorial entity comprised of those individuals within a given area.
Recently, Walter Ullmann has stressed the idea of the corporation as a minor, ultimately under a higher authority. This motion is in conflict with the popular sovereignty ideas of Bartolus or Baldus in the larger sense. Structurally, the latter saw the corporation as embodying original governmental power exercised through general assemblies and councils of the people, and elected officials ultimately responsible to the people. Such officials may function somewhat as tutors, or leaders of the community, but it does not follow that the corporation is thus a minor.
London's Charter of Self-Government
“London's First Charter of Liberties: Is It Genuine?” Journal of Medieval History 6 (September 1980): 289–306
Henry I's (1100–1135) charter for London, one of the most celeberated of English medieval documents, has been the subject of numerous scholarly studies over the past century. Historians' interest in the charter derives from the fact that it represents, in James Tait's words, “the first great landmark in the development of self-government in the English boroughs.” London's self-government made possible independent agitation for more liberties in later history.
Nonetheless, the charter's authenticity has been questioned in recent years. In 1973, Christopher Brooke, Gillian Keir, and Susan Reynolds concluded, in a closely reasoned article, that it was probably a forgery from Stephen's reign (1135–1154) or a genuine charter of Stephen's misattributed to Henry I. Their views have influenced subsequent literature on medieval English urban history which has called the document into question. Contrary to this current of opinion, Prof. Hollister holds that the charter is, in all likelihood, genuine—that the history of London's autonomy does indeed begin in the reign of Henry I and by his mandate.
Hollister's article follows more or less the organization of Brooke, Keir, and Reynolds who examined (1) the manuscript tradition, (2) the protocol, (3) the witness list, and (4) the historical context.
The manuscript tradition of the London charter is complex, especially since the original is no longer extant. Hollister, however, concentrates his attention on one particular copy, which was included as part of the early fourteenth-century Liber Horn. This manuscript bears a series of marginal and interlineated emendations. The emendations create a more plausible text and protocol that reflects Anglo-Norman chancery practice much more closely than any fourteenth-century scribe could have produced. Accordingly, they can only have resulted from an emendor who had the original charter before him, or an early and quite accurate copy no longer extant. Therefore, at least some existing copies show evidence of being based on documents originating in Henry I's time.
Scrutiny of the “witness list” reveals that seven or eight of them were active in Henry's court or administration. Several were linked by bonds of kinship or service. Significantly, the list includes men who were in all probability the lords or keepers of London's three major fortifications in the latter years of Henry I's reign. The relative obscurity of some of the other witnesses (Alfred fitz Joel, Robert fitz Siward, John Belet, etc.) combined with their singular appropriateness to a London charter of liberties of about 1131–33, clearly bespeaks the document's authenticity. Although plausible for 1130–33, the witness list raises the most serious difficulties if one argues that the charter was a product of King Stephen's reign.
It is above all on the grounds of the London charter's historical context that Brooke, Keir, and Reynolds contest its authenticity. They find if difficult to believe, for example, that the powerful, tightfisted Henry I would have granted such generous privileges as local election of sheriffs and the lowering of the land tax (ferm) from .525 to 300 pounds.
Hollister, however, places the concessions of the charter within the economic context of the early 1130s. Concerning the election of sheriffs, one can reason analogously from records concerning the city of Lincoln that London paid dearly for this measure of self-government. The concession of such a privilege profited the crown substantially. Thus, it is not at all surprising that the money-conscious Henry should grant election rights to the city.
The reduction of the ferm may be traced first of all to the growing number of arrears, as Londoners found it increasingly difficult to pay the onerous tax. The situation was aggravated by a great fire in mid-May 1133. The fire destroyed most of London, including St. Paul's Cathedral. In all probability, therefore, Henry reduced the ferm after a realistic evaluation of the reduced revenue potential of his London subjects.
Evidence from existing manuscripts as well as historical circumstances, thus, point to the authenticity of Henry's charter. Those same circumstances also strongly indicate that the document was issued either in June or July of 1133.
Liberalism, Virtue, Rights & Manners
“Virtues, Rights, and Manners: A Model for Historians of Political Thought.” Political Theory 9 (August 1981): 353–368.
We seriously distort history in assuming that political theory became “liberal” about the time of Hobbes and Locke and has simply remained “liberal” ever since. To reveal this distortion we need to see how the concept of republican “virtue” evolved alongside the concept of “rights” as used by Hobbes and Locke, and how the concept of “manners” came to evolve from the meaning of the republican concept of “virtue.”
Hobbes and Locke may be understood in relation to the tradition of natural law and jurisprudence, but the origins of “liberalism” itself owes something to the development of a discontinuous paradigm of republican virtue.
In the natural law paradigm, liberty under law has nothing to do with people having a direct voice in the government. Liberty, in this paradigm, is basically “negative” and involves having immunity from arbitrary action by the ruling authorities, be they kings or princes.
In the republican paradigm, human nature requires the practice of active self-rule. Liberty is viewed as basically “positive” in that it involves the cultivation of a politicized “civic virtue” in ruling and being ruled. This notion of republican virtue cannot be assimilated to the status of a “right” that is distributable with other things, because an unequal distribution of public authority can lower the level of participation in government and thereby deny that all men are, by nature, political animals.
Given that the language of “rights” and “virtues” are incommensurate, it becomes possible to see Locke's politics of “rights” as marking the close of an age rather than the beginning of another. After the seventeenth century, the central issue in political theory is not whether the people have a right of resistance against rulers who have engaged in misconduct, but whether regimes founded on patronage, public debt, and a professional army don't, in fact, corrupt both rulers and the ruled; and corruption, then, is a problem of “virtue” rather than of “right.”
However, since the notion of citizenship was to be defended in terms of “virtue,” the “virtue” emphasized in the eighteenth century came to be that of “manners” rather than the classical notion of civic virtue (the activity and equality of ruling and being ruled). “Manners” meant the enrichment of personality, brought about by specialization, division of labor, and the expansion of “commerce and the arts.” Representative government was justified, and the individual compensated for the loss of “antique” virtue in ruling by the refinement of manners that an expanding commerce and arts made possible.
Thus, liberalism was not a simple development from “natural rights,” but depended on the evolution of a commercial humanism and a new concept of “virtue.”
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