Front Page Titles (by Subject) II: Law, Politics, and Freedom - Literature of Liberty, Summer 1982, vol. 5, No. 2
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II: Law, Politics, and Freedom - Leonard P. Liggio, Literature of Liberty, Summer 1982, vol. 5, No. 2 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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Law, Politics, and Freedom
The following summaries treat a variety of topics concerned with legal, political, and social theory in relation to individual freedom and rights. In keeping with the spirit of Professor Norman Barry's bibliographical essay on “The Tradition of Spontaneous Order,” Leon E. Trakman's two opening summaries imply the significance for legal history and theory of the spontaneous order mechanisms of the market (the evolution of Law Merchant from commercial custom and human experience) and of contract. The legal and ethical aspects of the medieval peace movement and of the natural evolution or history of just war doctrine are next summarized. Spontaneous order notions form an implicit backdrop to the next summary, Professor Barry's contrast of the theory of liberalism and political interest conflict. The remaining summaries touch on other questions of legal, philosophical, and political theory, as well as bibliography.
Spontaneous Order & the Law Merchant
“The Evolution of the Law Merchant: Our Commercial Heritage.” Journal of Maritime Law and Commerce 12 (October 1980): 1–24; 12 (January 1981): 153–182.
International commerce has spontaneously evolved an admirable body of Law Merchant to self-regulate the merchant community by voluntary consensus, good faith, and approved custom. Trakman offers the following considerations in the analysis of Law Merchant, which he surveys from ancient and medieval times down to the modern era: (1) A merchant regime has developed which is capable of regulating international relations; (2) Within this international regime merchants have acquired their own ability to govern their affairs on the basis of good faith and reciprocity. (3) The interests of this international regime are best served by the development of a supplementary legal order which reinforces rather than displaces the self-regulating capacity of merchants. Thus obligations assumed by international merchants in their contracts should be binding upon them in law because they have so agreed and because law should enforce their agreements. Trakman's thesis is that “through custom and usage, the international community of merchants has devised a sophisticated body of institutions which, today as yesterday, should be recognized in law in the interests of efficacious dealings across national boundaries.
Nations and merchants depend upon a coherent body of trade law to allow commerce to flow freely. We need to study the illuminating history of medieval Law Merchant to grasp the utility in maintaining a system of justice based upon the actual usages of merchants engaged in international commerce. Great advantages accrue to applying a low-cost and speedy adjudicative process to business ventures across international boundaries. Political and economic rivalry makes uniform international trade law indispensable. The merchants' self-regulation through voluntary contract and evolved business practices should take precedence over government or legal regulation. Historically, contract—the agreement of the parties involved in trade—has been the guiding and unifying force in the “law” of international trade, the Law Merchant.
Spontaneous Order & Oil Contracts
“Nonperformance in Oil Contracts.” Oil & Gas Tax Quarterly 29 (June 1981): 716–750.
International crude oil contracts of sale are a self-regulating device by which businessmen spontaneously order their own market needs without the need of bureaucratic legal regulation. In fact, laws of nonperformance acquire their foundation from business usages which have freely evolved.
Trakman studies the methods used by inside legal counsel employed by multinational oil companies to regulate the purchase and sale of crude oil across national boundaries. The study is based on interview and questionnaire studies and seeks to assess the interrrelationship between commercial and legal methods of dealing with nonperformance of multinational crude oil sales. First, Prof. Trakman analyzes written contracts for the sale of crude oil to establish how these affect nonperformance obligations in multinational oil sales. Next, he evaluates how related performance difficulties are resolved through intercorporate settlements between multinational crude oil sellers and their international oil buyers. Finally, he considers the utility of adjudication and arbitration as alternative means of resolving disputes over performance.
The investigation suggests that multinational oil companies usually use their own internalized methods of regulating nonperformance through their own contracts and agreements of sale. In particular, their own inside legal counsel has devised sophisticated instruments to govern business duties. They have incorporated both business and legal controls over performance into such agreements of sale, and they have interpreted these agreements in a predetermined economic-legal context of their own choosing. Thus, nonperformance clauses have been developed in the light of both legal and trade environments, not through the premature recourse to external adjudicative processes. So long as multinational oil companies have been able to regulate such obligations by their own means, rules of law have subsisted as nonmandatory instruments of control in the oil industry.
The author concludes that nonperformance risks are usually dealt with very adequately by the oil parties themselves and should therefore be left principally within their domain as a matter of business and legal sense. Where a legal tribunal is charged with jurisdiction to regulate disputes over performance, that body should establish the most economic and fair allocation of nonperformance risks in the light of commercial realities, not legal suppositions.
The Principle of Freedom
The Freedom Principle. Buffalo: Prometheus Books, 1981.
The basic underlying principle of political philosophy is the equal right of every moral agent to be free. This right follows from taking seriously our duty to respect autonomy. This right has strong libertarian implications, since it in general serves to make a sharp distinction between positive and negative duties. Thus, while we may have a clear negative obligation not to coerce others, we have no positive obligation to aid them. As an example, the usual justification for social security fails the test suggested by the right of everyone to equal freedom. Proponents of social security argue that, unless all workers were forced to contribute to a system of retirement insurance, some would, on their own volition, fail to make provision for retirement. This would eventually be a burden on others. Without denying the possibility which advocates of social security have conjured up, we must still reject the program they propose. One has no right to coerce everyone to save simply because if one does not, a certain bad consequence (namely, some will not save at all) might follow. Rather than have a coercive system, the present social security system should be gradually phased out in favor of voluntary plans.
Similarly, compulsory licensing laws are of doubtful moral validity. If someone wishes a certain type of treatment, it is not proper for the state to prevent him or her from securing it. To do so, once more, is to violate his or her right to equal freedom. Since, however many people wish to patronize doctors, dentists, etc. of proven reliability, it is legitimate for the state to issue certification to those who pass prescribed tests, provided that the uncertified are not forbidden to practice. Such programs should be financed by voluntary contributions, since compulsory taxation unacceptably violates rights.
Before elaborating further on the social consequences of the right to equal freedom, two points should be made clear. First, why are bad consequences not taken as a sufficient reason for preventing an act? To do so would be to adopt a form of utilitarianism. But this is unacceptable as a moral system. For one thing, there are various kinds of pleasures which are incommeasurable. Exactly what sort of utilitarian pleasure should we maximize? Also, utilitarianism is sometimes inconsistent with a respect for autonomy, as it allows (or even mandates) sacrificing one moral agent for a sufficiently great good to others.
A second objection, as noted earlier, would be to deny that we have positive duties to aid others. This is not intended to deny the fact that aiding others is morally good. It is only that the person in need of aid has no moral right to compel someone else to help him or her. Positive duties should not be legally enforcible. (One exception to this principle is the parental duty to care for minor children).
Pollock's social system differs from most libertarian approaches on the issues of property rights. The commonly advocated Lockean principle of property acquisition (that one acquires unowned property if one mixes one's labor with it) is unsatisfactory to Pollock. He believes this principle tends unduly to favor agricultural activity. Instead, the right of equal freedom mandates a different principle. Every moral agent has an equal right to the natural resources present in society. This proposal should be implemented along the lines proposed by Henry George, i.e., a tax on the unearned values of land. The proceeds should be distributed equally.
Pollock reasons that because of the need for such a distribution of natural resources and the need for a common currency and defense, a state is necessary. He concludes that the correct foreign policy for a libertarian limited state would be non-intervention.
The Medieval Peace Movement
“Pax et Justitia: “Arms Control, Disarmament and the Legal System in the Medieval Reich.” Peace and Change 8 (Spring 1982): 23–36.
The medieval German Landfrieden or Peace of Lands movement carries important lessons for a peace movement in our time. One lesson is that there seems to be no quick institutional “fix” to arms control and peace. A total ban on arms was not necessary in this medieval “peace movement,” which tried to suppress feuding, but allowed nobles to continue to bear arms. Nor was a centralized constraint on arms sufficient to establish peace, since stability at home allowed for the conduct of Crusades and war abroad. The medieval peace movement tried to rely on arms control rather than on disarmament or armed deterrence; it was successful to the extent to which conflicts came to be resolved through the use of the legal system.
Prior to the Peace of Lands, the resort to arms was employed for “extra-judicial” self-help, as when a litigant failed to receive what he considered was his legal due. Even after edicts prohibiting all violence at certain times, the Crusades and the Investiture Conflict (resolved by Concordat of Worms, 1122) managed to keep conflict alive. It was not until medieval society began to focus less on an ideal peace and more on maintaining internal law and order that Europe witnessed a reduction in societal conflicts. By phasing out the extra-judicial but legitimate acts of self-help, the Landfrieden tamed the feud and eventually proscribed it altogether. At the same time, this medieval peace movement restrained ordinary crime by making punishment fit the crime, regardless of the criminal's social or kinship status.
For our own times, we ought to remember that peace cannot be pursued as an end-in-itself, but only as an adjunct of orderly and lawful societal change. The article contains copious historical and bibliographical citations.
Just War Theory and Resistance
“Just War Doctrine: A Warrant for Resistance.” The Thomist 45 (October 1981): 503–540.
The doctrine of the just war has a long history which may provide a moral justification for the individual's right to resist unjust wars.
In the Old Testament, the individual was justified in resisting authority in order to obey Yahweh. For St. Augustine, one was obligated to obey the king, unless his order was clearly unrighteous or contrary to God's command. For Aquinas, individuals are not bound to obey a ruler if he gained power unjustly or issued an order that is unjust. With Luther, subjects ought to obey their rulers in doubtful cases, but not when there is certainty about the injustice of the proposed cause. Vittoria concurred with this, and allowed that the individual need not assume responsibility for assessing the reasons for war before following a leader's orders. Suarez went a step further and held that in cases of “positive doubt”—for example, when there are reasons for and against the justice of a war, the individual is bound to follow the course that is more probably just.
A major advance in theorizing occurred with Hugo Grotius, who was the first in the Christian tradition to argue against engaging in war when the cause is of doubtful justice. Conscience is to be the sovereign guide of human actions, and if opinions waver about the justice of a cause, the balance should incline in the favor of peace.
Recently, the Catholic Church has affirmed the principle that citizens, and not rulers alone, have to concern themselves with the criteria of a just war. Furthermore, in February 1980, the U.S. Catholic Conference of Bishops affirmed (implicitly) that the individual has no a priori obligation either to support or to oppose a proposed war. In effect, the government's decision need no longer enjoy any presumption of truth or justice. The American bishops also recommended that the government extend legal immunity to selective conscientious objectors, not simply to total pacifists. So far, the government has turned a deaf ear to the bishops' recommendation.
Liberalism vs. Politics
“A Defence of Liberalism Against Politics.” Indian Journal of Political Science 41 (June 1980): 171–197.
Professor Barry critiques the view, exemplified by Prof. Bernard Crick, that (1) identifies the activity of politics (reconciling conflicting interests and pressure groups) with freedom or (2) judges that such political activity is superior to the moral theory of traditional liberalism.
Barry understands liberalism as it was understood in late 18th- and early 19th-century British political and economic thought as both a normative and scientific doctrine. Normatively, liberalism maintained that there “ought to be strict limits between the private and public spheres of action, which meant that the state ought to be limited either by formal, written constitutions, or unwritten, but equally binding customary rules of behaviour; that individual actions were more important, morally and politically, than collective actions; that laws ought to be general and non-discriminatory; and that a natural economic order would emerge if individuals were left to pursue their private purposes within the framework of these general rules. The scientific side of this liberalism consisted of the basic theorems of market economics, for example, the idea that the market mechanism would allocate resources more efficiently than state intervention. A crucial element in this was the belief in methodological individualism, that is the doctrine that social processes can only be understood in terms of individual action and not in terms of metaphysical entities such as ‘classes’, ‘states’ or societies'.” This version of liberalism rejects the classical utilitarian notion that there are any social ends or purposes beyond the maintenance of the system of rules within which individual transactions take place.
The writings of Professor Crick are taken by Barry as the example of the ‘political’ school, and it is argued that the liberal ideal of constitutionalism provides a better protection of individual rights than does the political process of majority voting and pressure or interest group struggles. The belief in the importance of group interests distorts the meaning of the public interest and sanctions policies that, in fact, harm that interest. Prof. Barry maintains that the identification of politics with freedom is not only logically mistaken but also conceals the fact of coercion that is a consequence of all political activity: the outcomes of political processes “must inevitably involve decisions which are uniform and coercive.”
Professor Barry's far-ranging contrast of politics and liberalism deals with the nature of politics; politics, constitutions, and law; and politics, freedom, and liberalism. The symbiotic relationship of the free market, liberty, and liberalism is stressed throughout. Barry also underlines the normative vacuum of political formalism or rules without moral content.
H.L.A. Hart vs. Natural Law
“H.L.A. Hart's Minimum Content Theory of Natural Law.” Political Theory 9 (November 1981): 533–546.
The author wishes to clarify the “much maligned tradition of natural law in legal theory.” He contends that H.L.A. Hart has distorted important aspects of the controversy between natural law and legal positivism. Hart's “minimum content” theory does not constitute a compromise between natural law and legal positivism since Hart misinterprets the meaning of natural law.
The legal positivists' tradition holds that “legal norms can have any kind of content and be valid.” By contrast, the natural law tradition maintains: (1) the conviction that there exists a universal justice that transcends the particular expressions of justice in any given set of positive laws; (2) that the universal principles of justice are accessible to reason and are discovered, not made, by man; (3) that a positive law contrary to these universal principles is not properly speaking a law, since it lacks the moral content necessary to put us under obligation. To be valid law must have a moral content and not simply be a command with sanctions.
Hart's theory fails to be assimilated to this natural law tradition. (1) Hart's criterion of “survival” fails to qualify as the proper end or telos of man, because it does not refer to an optimum condition of fulfilment. (2) Because survival is morally neutral, no moral conclusions can be derived from the fact that men tend to desire to continue in existence. Hart's “content” of law (based on survival as an aim) is instrumental rather than moral. (3) Hart's minimum content theory attempts to define “viable” rather than “valid” law, and so remains thoroughly positivist. It does not approach the moral content criterion of natural law.
To be valid a law must be deserving of respect. A valid law is one which morally ought to be obeyed; the coercion such a law uses against those who disobey it would then be justified. Otherwise, the coercive power of law would hardly be distinguishable from the violence of criminals.
Freedom of Assembly vs. “Heckler's Veto”
“Freedom of Assembly and the Hostile Audience in Anglo-American Law.” The American Journal of Comparative Law 29 (Winter 1981): 59–96.
Public conflict between rival factions (such as neo-Nazis and Jews) creates legal dilemmas concerning civil liberties in England and the United States. When passions are inflamed, insisting on the right to speak and assemble by some controversial groups may pose the nearly certain prospect of serious public disorder. Authorities confront the dilemma of either preserving order by preventing public demonstrations or guaranteeing the constitutional right to assemble against a hostile audience's “heckler's veto.” The author presents a comparative legal analysis of the English and American constitutional policy and practice regarding prior restraint of publically controversial speech and assembly; in addition, he surveys the legal considerations of police intervention and criminal punishment in respect to this issue. Important legal cases in England and the United States (such as the banning of a proposed Nazi march in the largely Jewish Village of Skokie, Illinois in May 1977) involving freedom of assembly issues are discussed in detail.
Under inflammatory conditions, the author believes that the constitutional right of freedom of speech may have to be temporarily subordinated to the needs of law enforcement and restoring public order. Under normal circumstances, however, the right to demonstrate should never be revoked or even curtailed simply because of threats from a hostile audience. Authorities should offer protection so that a hostile audience cannot exercise “a heckler's veto” over the right to speak and to assemble.
“The difficult issue arises when demonstrators insist on the right to express a message in public which is highly provocative.” In the United States, the Supreme Court has avoided deciding whether provocative demonstrators may be punished or prevented from doing so. At the present time, the law is sufficiently ill-defined to enable two lower courts in the Skokie litigation—the Federal District Court and the Illinois Supreme Court—to interpret the U.S. Supreme Court to mean that Nazis wearing swastikas have a constitutional right to conduct a demonstration in a Jewish community provided the demonstrators' message is nonpersonal in content.
The author's “preferable solution to the dilemma of the hostile audience” would allow the police and courts in America to decide whether the protestors' nonpersonal message had the “inherent capacity. . . to provoke a breach of the peace.” He believes the alternative of his criterion (the capacity of a message to provoke violence) would be to formulate some other independent criterion or “to establish as a matter of constitutional law that demonstrators are entitled to express any message they choose in public and be protected by the police.”
Proudhon: History as Conspiracy
“Proudhon's Conspiratorial View of Society.” Journal of European Studies 11 (September 1981): 184–193.
Although a self-styled positivist who prided himself in his scientific method applied to political, social and economic theory, Pierre-Joseph Proudhon's (1809–1865) conspiratorial view of society transcended empirical evidence and links him, in its imaginative mythic force, with the romantic literary figures of the nineteenth century, such as Balzac. The author believes that Proudhon's belief in a “vaste conjuration” of government officials, capitalist bankers, and priests united to suppress the lower classes shows signs of paranoia.
Proudhon's assessments of contemporary society were stamped with an emotional, personal mythology of conspiratorial plottings of “l'autel, le trône et le coffre-fort.” “Starting from certain demonstrable observations (the retrograde ideology shared by the clergy, the bourgeoisie, the Orleanist/Bonapartist regime in nineteenth-century France; the coalition European monarchs formed in Vienna to contain revolutionary ferment), Proudhon was quick to posit an intricate alliance of Church, capitalists, and governments by magnifying these observations far beyond the actual facts.” This private conspiratorial mythology became a conceptual framework to organize his world-view as a political analyst. Proudhon's conspiratorial views on attempts to unify Italy and Poland (rather than allowing them to be federated groupings of autonomous units) are cited as proof that he was held in the grip of an emotional ideology resembling the romantics' reshaping of history to fit their vision.
Bibliography of Political Theory
“Recent Books in Political Theory: 1977–1979.” Political Theory 9 (February 1981): 121–142.
Supplementing an earlier bibliography by Linda Marasco and Cary J. Nederman, “Recent Books in Political Theory: 1974–1976,” Political Theory 5 (May, 1977): 277–287; this recent bibliography collects work on the history of contemporary issues in political theory. Going beyond the narrow limits of theory, it deals with philosophy, sociology, economics, history, and other disciplines when those fields contain material of interest to the political theorist. This bibliography covers the period from January 1977 through December 1979 in the seven languages published in Europe and the Americas.
Major topics treated are: history of political thought, Marxism, anarchism, and contemporary theory (which includes entries on liberalism and democratic theory; rights, justice, and law; political and moral issues; and introductions, methodology, and collections). The student of political and historical thought is offered hundreds of books of interest.
To supplement these Political Theory bibliographies of books, the reader may find useful Cary J. Nederman's “A Bibliography of Articles in Political Theory, 1974–1978,” in an earlier issue of Political Theory 7 (November 1979): 563–580, which in turn supplemented the “Bibliography of Political Theory Articles: 1970–1973,” which appeared in Political Theory 2 (November 1974): 468–478.