Liberty Matters

No Laws But Just Laws?

I’ve defended Spooner’s claim that normative terms in the Constitution (or any statutory law) should be interpreted as invoking whatever is the objectively correct moral truth, rather than invoking the opinions on morality held by the authors or socially prevalent at the time of its enactment.  Let’s call this View A.
But Spooner’s views are still more radical than this.  To begin with, he holds that genuine constitutional law “consists only of those principles of the written constitution, that are consistent with natural law, and man’s natural rights.”[76]  This implies that, e.g., slavery wouldn’t have been constitutionally legal regardless of what the text of the Constitution said.  Let’s call this view – that any genuine law must be consistent with natural law – View B.
Moreover, not content merely with View B, Spooner further holds, more radically yet, that there is no law other than natural law:  “being the paramount law, [natural law] is necessarily the only law: for, being applicable to every possible case that can arise touching the rights of men, any other principle or rule, that should arbitrarily be applied to those rights, would necessarily conflict with it.”[77]  Consequently, Spooner denies the existence of any “power, on the part of the legislators, so-called, to make any laws of their own device, distinct from the law of nature.”[78]  Let’s call this View C.
Views B and C, today, are even less popular than View A.  Nevertheless, I want to say a few words in defense of both of them.  I’ll focus on View B in the present post, reserving View C for my next post.
View B seems to run counter to ordinary usage; after all, we standardly speak all the time of “laws” we consider to be unjust.  In the words of John Austin, one of the foremost proponents of legal positivism, “The existence of law is one thing; its merit or demerit is another.”[79] 
Yet it’s worth noting that far from being an eccentric position, View B was the standard orthodoxy in Western jurisprudence for over two millennia, being endorsed by thinkers from Plato and Cicero to Thomas Aquinas and William Blackstone; and in the past century, though it had long since ceased to be orthodoxy, it continued to attract such defenders as libertarian writer Rose Wilder Lane and civil-rights leader Martin Luther King Jr.[80]  Even today the view has a hold in popular culture; for example, in the 2010 film Machete, Jessica Alba’s character says:  “There are lots of laws. But if they don’t offer us justice, then they aren’t laws; they are just lines drawn in the sand by men who would stand on your back for power and glory.”  These endorsements don’t show that View B is true, but they do give us reason to take it seriously.
Why might one think View B is true?  Well, to begin with, laws claim authority; and one might accordingly think that a successful law – that is, something that succeeds in being a law – would have to be one that actually has the authority it claims.  If only just laws can have authority, we get the upshot that lex injusta non est lex – an unjust law is not a law.  This style of argument seems to be the dominant one in the natural-law tradition.
A slightly different argument for View B takes laws as having a function; by that reasoning, only statutes that are suited to achieve that function will count as genuine laws, at least in the full-fledged sense.  If the function in question is one to which justice is requisite, then lex injusta non est lex follows once again.
This latter style of argument seems to be the one that Spooner finds most compelling.  For Spooner, knowledge of natural law is “the science which alone can tell us on what conditions mankind can live in peace,” and accordingly “wherever mankind have attempted to live in peace with each other,” they have found obedience to natural law to be an “indispensable condition.”
So long as these conditions [of natural law] are fulfilled, men are at peace, and ought to remain at peace, with each other. But when ... these conditions [are] violated, men are at war. And they must necessarily remain at war until justice is re-established.[81]
Given the radically libertarian character of natural law as Spooner understands it, he presumably cannot mean that every workable legal system must be libertarian.  Rather, his point is that every workable legal system is so in virtue of its libertarian aspects and to the extent that it is libertarian.  Restraining people from aggression against the persons and property of others is the core, the essence, of any legal system, whereas any additions and exceptions to this core are accidental, and indeed are impediments to proper legal functioning.  And if a statute’s legal character derives from its libertarian character, then unlibertarian statutes will not be strictly legal.  (Spooner’s position here bears some resemblance to that of the 20th-century jurist Lon Fuller, who likewise saw certain moral principles as implicit in the enterprise of law itself, though for Fuller, unlike Spooner, these principles were primarily procedural rather than substantive.)[82]
But even if we grant that protecting libertarian rights is the true essence and function of law, so that unlibertarian statutes are unsuccessful examples of lawmaking and thus will be bad as laws (rather than simply being laws, perfectly in order as laws, that happen to be, in addition but separately, morally bad), why not indeed say that they are bad laws rather than nonlaws?
Here I think the terminological question is secondary.  In ordinary language the sentences “Three of the Rembrandts in your collection are fakes” and “Three of the paintings in your collection that you think are Rembrandts actually aren’t Rembrandts, but instead are fakes” both sound like acceptable standard usage, even though the first seems to treat fake Rembrandts as a kind of Rembrandt while the second declines to do so.  What is crucial to View B is less whether we call unjust statutes “laws” than whether we regard them as successful or unsuccessful examples of lawmaking.[83]
On this view, an unjust law is a failed law; whether one regards its failure as so great as to disqualify it from being a law, or merely as marking it as an inferior-grade law (how dull does a knife have to be before it’s no longer a knife?), the point is that it fails to have the full status that a properly formulated law would have.  It claims authority, but actually lacks it; it seeks to coordinate human behavior in a peaceful way, but actually promotes unnecessary conflict.  Unjust laws are botched laws.
[76.] Spooner, The Unconstitutionality of Slavery, Part I (Boston: Bela Marsh, 1845), p. 14.
[77.] Ibid., pp. 6-7.
[78.] A Letter to Thomas F. Bayard:  Challenging His Right – and That of All the Other So-Called Senators and Representatives in Congress – to Exercise Any Legislative Power Whatever Over the People of the United States (Boston, 1882), p. 5.
[79.] John Austin, The Province of Jurisprudence Determined (London: John Murray, 1832), p. 278.
[80.] For citations, see my working paper “Legal Naturalism Is a Disjunctivism,” online at:  <>.
[81.] Spooner, 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).
[82.] Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1969).
[83.] For elaboration, see my “Legal Naturalism Is a Disjunctivism,” op. cit.