More on Private Judgment and Public Justification

     

A couple of addenda to my last post:  

1. I also want to distinguish between the question What procedures does a provider of legal services (a private court, say) need to follow in order to assure third parties that it’s behaving in a reliable manner? and the question What procedures does a provider of legal services need to follow in order to generate in others a prima facie duty to obey its edicts even when those edicts are wrong?  In answering the first question, I think Randy’s Structure of Liberty is a pretty good guide.[103]  (One requirement for reliability, though not the only one, is that the provider not forbid competitors.)  By contrast, I think the answer to the second question is: no possible procedures could be sufficient to produce this result.

2. In answer to my argument that disputants are not bound to obey the unjust decisions of courts, someone might object: what if they’ve contractually agreed to binding arbitration?  My answer is: it depends on the details of the contract.  Either the contract surrenders alienable rights or it seeks to surrender inalienable rights.  If the rights the contract seeks to surrender are inalienable, the contract is not binding.  (On this point see Randy’s excellent article “Contract Remedies and Inalienable Rights.”)[104]  On the other hand, if the rights surrendered in the contract are alienable, the contract is binding; but in that case, even if the result of arbitration is mistaken, it will not be unjust.  (For example, if I’ve agreed to pay a fine if Court X finds me guilty, then even if I’m innocent there’s no injustice in requiring me to pay the fine, since the condition licensing the fine is not my guilt but rather Court X’s finding.)  In neither case, then, do we find a duty to obey unjust requirements.

[103.] Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law, 2d ed. (New York: Oxford University Press, 2014).

[104.] Randy E. Barnett, “Contract Remedies and Inalienable Rights,” Social Philosophy and Policy 4.1 (Autumn 1986), pp. 179-202.