Liberty Matters

No Law But the Natural Law?

In my last post I distinguished three positions, in increasing order of radicalism, all of which Spooner defends:
View A:  normative terms in statutes should be interpreted in accordance with whatever natural law actually says, not in accordance with the opinions of the authors or the wider society as to what natural law says.View B:  no statute counts as a genuine law unless it is consistent with natural law.View C:  natural law is the only genuine law.
I’ve likewise defended Views A and B.  What about C?
At first blush, View C seems to run afoul of one of the most basic functions of law.  As Charles Johnson writes:
[I]t may be that justice requires that cars going opposite directions on a highway should drive on opposite sides – so that drivers will not needlessly endanger each other’s lives. But natural justice surely has nothing in particular to say about whether motorists should drive on the left or drive on the right. It requires that some rule of the road should be adopted, and that once adopted, the rule should be obeyed by each individual motorist. But the question of which to adopt is a matter that needs to be settled by some means other than appeals to natural justice. Medieval legal writers described these sorts of cases as reducing the natural law (in the sense of making it more specific): the idea is to spell out the details for cases where the principles of natural justice underdetermine the correct application of individual rights.[84]
But View C appears to rule out the possibility of “reducing” the natural law in this way.  For if natural law doesn’t say which side of the road one should drive on, then according to View C it seems there can be no law settling this.  View B by itself doesn’t pose this problem, since it allows laws in addition to natural law so long as those laws don’t conflict with natural law; but View C apparently rejects any role for convention in law.  (This, incidentally, is one place where Spooner seems to part company with Hayek.  The two thinkers agree in contrasting law with legislation; but the spontaneously evolving norms that Hayek champions certainly do allow a role for convention.)
Moreover, not only does View C seem implausible in itself, but it also seems to conflict with View B.  What’s the point of telling us that no unjust statutes can count as laws if it turns out that no statutes, just or unjust, count as laws? After all Spooner tells us that even just statutes – those that “command men to do justice” – nevertheless “add nothing to men’s obligation to do it, or to any man’s right to enforce it,” and so are “mere idle wind.”[85]
To be sure, Spooner does in the very same paragraph suggest a different way that a statute could be a law, for he says of statutes generally that it is “a falsehood to call them laws; for there is nothing in them that either creates men’s duties or rights, or enlightens them as to their duties or rights.”  This opens the door to the possibility that a statute might count as a law, despite not creating any duties or rights, if it did “enlighten” people as to their duties and rights.  But it’s still hard to see how to reconcile this with the claim that natural law is the only law.
But let’s think about it this way.  Suppose I’m in the country where the established statute says to drive on the right.  Should I drive on the right?  Yes, but not because of the statute, or at least not directly.  The reason I should drive on the right is that most other people are driving on the right, and so I need to drive on the right in order to satisfy natural law’s requirement not to endanger other drivers needlessly.  
Now perhaps the other drivers are driving on the right out of respect for the statute, in which case the statute will be indirectly the reason I should drive on the right.  But the statute’s role is not essential.  After all, suppose that the statute said to drive on the left, but in practice most people were still driving on the right; in that case I should still drive on the right.  The general practice of driving on the right gives me reason to drive on the right – be that practice the result of top-down legislation, or a spontaneously evolved Hayekian norm, or what have you.  But the authority I’m following is not the practice itself, any more than it is the statute (if any) behind it; I’m ultimately following the authority of the natural-law principle not to endanger other drivers needlessly.  It’s just that conventions – statutory or otherwise – can play a role in determining what counts as following the natural-law in particular situations. 
By analogy, suppose that natural law says “shoot anyone wearing a red hat.”[86]  Then Bartholomew, by wearing a red hat, makes it the case that I should shoot Bartholomew.  But Bartholomew didn’t create any new norm for me to follow; in shooting him I’m just following the original norm of shooting anyone wearing a red hat.
Thus it is possible to hold, simultaneously and consistently, both that statutory and other conventions can change what genuine law requires, and that unchanging natural law is the only genuine law. Whether one wants to call the conventions that “reduce” the natural law’s requirements “laws” or not is an optional terminological question; the crucial point is that these conventions have no independent authority.
[84.] See Charles Johnson’s working paper “A Place for Positive Law A Contribution to Anarchist Legal Theory,” online at: The position Johnson goes on to defend in his paper is broadly similar to the one I defend here.
[85.] 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 (Boston: Benjamin R. Tucker, 1886), p. 4.
[86.] It doesn’t.  Just in case you were wondering.