On Constitutions, Coercion, and Coordination

     

Lysander Spooner, like many libertarians, believed that individual consent was a necessary condition for political authority. In other words, for a government to have legitimate authority, every single individual living under it must give his or her actual (as opposed to merely hypothetical) consent to it. Since that condition is manifestly not met in the case of the government of the United States – or, I might add, any other government that currently exists or ever has existed – Spooner believed that the government lacks legitimate authority. And this is, no doubt, the correct conclusion to draw from his premises. Once one accepts any version of consent theory strong enough to be worthy of the name, the road to philosophical anarchism is but a short one.

In his introductory essay, Randy Barnett tries valiantly to steer Spooner down a different road. He does this, in effect, by abandoning the consent theory of political authority. Consent, on Randy’s view, is a sufficient condition for political authority. But it is not a necessary one. There are other ways in which a government can acquire legitimate authority. In Randy’s words,

Consent still plays a role in this argument, but it is a strictly limited one. The Constitution has authority for the people who form the government because they consent to it when they take their oath of office. But for the rest of us who never take any such oath, whatever authority the government has is a function of the content of the laws that it produces. If the laws are in accordance with natural law and therefore binding in conscience, they have authority. If not, then not. A legitimate constitution, then, is one “that adopts procedures to ensure that the laws that are imposed on the nonconsenting public are likely to be just.”

On this view, a government is something like a private club, and a constitution like the charter of that club. Since the charter is only binding on those who sign up to be members of the club, the substantive content of that charter can be just about anything at all. So long as those who are bound by it consent to it, it is legitimate. But nothing in the club’s charter can alter the club’s moral obligations toward nonmembers. The club’s members still have the same obligations toward nonmembers that they had before incorporating.

This simple picture is complicated somewhat by Randy’s claim that a legitimate constitution must adopt procedures that ensure that laws that are imposed under it are “likely to be just.” Without hearing more about the rationale behind this stipulation, I’m not sure what to make of it. It’s one thing to say that people have a duty not to violate the laws of natural justice. It’s another thing to say that they have a duty not to do things that make it likely that they will violate the laws of natural justice. If reading Carl Schmitt makes you more likely to become a fascist, do you have a duty not to read it?

Putting that issue to the side, however, the deeper problem with Randy’s proposal is that it seems to leave the government without any real authority at all. On Randy’s view, legitimate constitutions establish governments that have the authority to pass laws consistent with natural justice. But, as Spooner himself pointed out, this puts governments in a bit of a pickle.

In other words, the theory of authority that Randy has suggested seems to entail that all governments are necessarily either “criminal, as commanding or licensing men to do what justice forbade them to do, or as forbidding them to do what justice would have permitted them to do; or else they have been superfluous, as adding nothing to men’s knowledge of justice, or to their obligation to do justice, or abstain from injustice.”[56]

To illustrate: it is a violation of natural justice to knowingly and intentionally cause the death of an innocent person. So if the government passes a law forbidding murder, one has a moral obligation to obey that law. But it is not because murder is illegal that one has an obligation not to murder. One’s moral obligation is entirely a function of the natural injustice of murder. The law, in this case, adds nothing to one’s moral duties. It is superfluous.

Thus, if all that government may legitimately do is restate and enforce the duties of natural justice, then it would seem to lack any real authority at all. It cannot impose duties upon us. Whatever duties we have are independent of and prior to government. Natural law is the sole authority.

Now, there are a couple of ways in which one might seek to avoid this problem and to establish some form of independent authority for government above and beyond the authority of natural law. One way we might go is the epistemic route: we might claim that governments have authority in the same way and for the same reason that doctors or lawyers do, because they know more than us. This view is compatible with the claim that, as a substantive matter, only natural law has the authority to impose any real duties upon us. But even if this true, it might be the case that most of us aren’t in a very good epistemic position to figure out just what exactly the natural law is.

If governments are in a better position to discern the natural law than the masses of people, this might provide them with a kind of epistemic authority. Just as we obey our doctor when he tells us what drugs we ought to take, we might obey our governments when they tell us what taxes we ought to pay. In neither case does the authority’s proclamation create a new duty for you. They simply provide you with expert advice regarding what your duty independently is.

This is something like the theory that Joseph Raz gave us in The Morality of Freedom (1988).[57] But without getting into the difficulties that have been pointed out with that theory, I’ll note that it is a particularly difficult theory to reconcile with Spooner’s view. After all, Spooner held that natural law is “usually a very plain and simple matter, easily understood by common minds,” that we have an “almost intuitive perception” of its basic principles, and that even “children learn the fundamental principles of natural law at a very early age.”[58] If natural law is so easy to discern, is it really plausible to suppose that we have a duty to obey the dictates of government as a kind of epistemic authority? I would think not -- especially if we take as dim a view of the motivations and competence of government agents as Spooner seemed (justifiably!) to take.

But perhaps there’s another way to go. Rather than claiming that government authority comes from its knowledge of natural law, we might instead say that it comes from its specification of it. After all, the “fundamental principles” of natural law to which Spooner refers are probably best understood as highly abstract generalizations. Locke’s famous dictum that “no one ought to harm another in his life, liberty, or possessions” seems to fit Spooner’s description of a “plain and simple” principle that is almost intuitively perceived.[59] But of course that principle leaves a lot of questions unanswered. Precisely what legal rules should we employ to determine the scope of a person’s possessions? How should liability be assigned in the case of unintentional harm? And so on.

It might be that there is no single set of answers to these questions picked out by the basic principles of natural law. Those principles, we might suppose, establish a set of constraints to which any legitimate set of answers will have to conform. But within those constraints there might be room for a variety of different but non-simultaneously realizable answers. It doesn’t so much matter which system of tort liability we settle upon so much as it matters that we settle upon the same system. People need to be able to form reliable expectations of how their neighbors will behave – and how the law will respond to that behavior – in order to coordinate their actions effectively. Some authority that specifies and publicizes the abstract principles of natural law can greatly aid in this process.

I suspect this kind of argument might be along the lines of what Randy has in mind. It is, after all, very similar to an argument he set forth in his excellent book The Structure of Liberty (1998).[60] And as far as arguments for political authority go, it’s not a bad one. Still, it has its problems. First, it’s not always necessary, in the first place, for all people to coordinate upon a single set of norms. It is often possible, and desirable, to have a polycentric order in which different groups coordinate around different norms. Furthermore, even when universal coordination is necessary, it’s not always necessary that the state be the agent of that coordination. Private entities can fill this role as well, in which case it’s unclear why we should grant any kind of coercive, monopolistic power to the state.

Indeed, it’s unclear whether we should ever give that kind of authority to the state, even in cases where universal coordination is necessary, and even where the state is necessary to achieve it. Suppose that effective social coordination requires that everybody drive on the same side of the road. It doesn’t matter which side of the road they drive on, so long as everyone’s doing the same thing. And suppose, contrary to fact, that private individuals and groups are just utterly incapable of building and managing the roads on their own. Even granting these heroic assumptions, it’s still not obvious that government would be justified in forcing people to drive on one side of the road rather than the other. After all, neither driving on the left or driving on the right is a violation of others’ natural liberties. So forcibly preventing people from doing one of those things seems to be an instance of “forbidding them to do what justice would have permitted them to do,” and therefore impermissible on Spoonerian grounds.

This is a powerful objection. But there might still be one last way around it. The key move is to suppose that people have a natural-law duty to effectively coordinate their actions in ways that are necessary for peaceful coexistence. If we make this assumption, it would seem to follow that people have a derivative natural duty to abide by whatever effective mechanisms of social coordination are available to them. In some cases – perhaps most – that may just be an informal social norm. If there’s a social norm that everybody does X rather than Y, and it’s important that everybody acts in the same way in this context, then one has a duty to abide by the norm and X and not Y.

In some cases, however, the law might be the most effective mechanism for facilitating socially necessary cooperation. That it is so would be a purely contingent social fact. Governments, after all, are big and powerful and rather good at bossing people around. But just these very facts might make the government an effective means, in certain contexts, for getting large numbers of people to coordinate their behavior along similar lines. And if these brute facts about government make it the most effective means for facilitating coordination, then individuals with a natural duty to effectively coordinate might be bound in conscience to obey it.

Even if it works, and I’m not entirely sure that it does, this sort of argument still doesn’t give the government much authority. It certainly doesn’t give it the authority to prohibit marijuana, or bail out banks, or even to run a post office.[61] But if one is interested in bridging the small but formidable gap between philosophical anarchism and a very minimal state, it strikes me as a promising way to go.

[55.] Lysander Spooner, "A Letter to Grover Cleveland, on His False Inaugural Address, the Usurpations and Crimes of Lawmakers and Judges, and the Consequent Poverty, Ignorance, and Servitude of the People," in The Collected Works of Lysander Spooner (Indianapolis, IN: Liberty Fund, 1886), 188. Online version </titles/2224>.

[56.] Ibid., p. 188, emphasis added.

[57.] Joseph Raz, The Morality of Freedom (Oxford University Press, 1988).

[58.] "Natural Law; or the Science of Justice: A Treatise on Natural Law, Natural Justice, Natural Rights, Natural Liberty, and Natural Society; Showing That All Legislation Whatsoever Is an Absurdity, a Usurpation, and a Crime. Part First.," in The Collected Works of Lysander Spooner (Indianapolis, IN: Liberty Fund, 1882), 139-40. Online version </titles/2292#lf1531-02_head_049>.

[59.] John Locke, The Second Treatise of Government (New York: MacMillan, 1952), chapter 2.Online version Hollis edition 1764: John Locke, Two Treatises of Government, ed. Thomas Hollis (London: A. Millar et al., 1764). </titles/222>.

[60.] Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (Oxford: Oxford University Press, 1998), chapter 5.

[61.] See Spooner, The Unconstitutionality of the Laws of Congress, Prohibiting Private Mails (New York: Tribune Printing Establishment, 1844). </titles/2231>.