Liberty Matters

Private Judgment and Public Justification


Unjust statutes have no authority that anyone is bound to respect; so says Spooner, and I agree.  But Randy raises an objection.  Citing an argument by libertarian theorist George Smith,[96] Randy maintains that even if I am in my moral rights in any given dispute, it is in my interest to establish my correctness through some public procedure in order to reduce the likelihood of conflicts with third parties. Hence I cannot realistically go around using my sole private judgment as to which laws to obey or disobey, without some concern to vindicate the justice of my actions in a public forum.
With some reservations (which I’ll get to), I’m generally in agreement with this defense of concern for public procedures of justice.  But I’m a bit puzzled at Randy’s glossing this point as equivalent to “the epistemological issue of ascertaining the justice of laws so individuals know which to obey and which to disobey.”  The question how do I know I’m justified in disobeying this requirement? and the question how do I convince others that I’m justified in disobeying this requirement? seem like different questions. 
For one thing, convincing others of one’s justification often involves establishing matters of fact that one doesn’t need to establish for oneself.  Consider the following two cases:
Case #1:  Officer Freundlich seeks to arrest Emma for stabbing her roommate Voltairine.  Emma has not in fact stabbed anyone, so she takes herself to be in her rights to resist arrest.  But by resisting arrest, she risks conflict with third parties who are not convinced that she’s innocent of stabbing her roommate.Case #2:  Officer Freundlich seeks to arrest Voltairine for selling marijuana to her roommate Emma.  Voltairine has indeed sold Emma marijuana, but she regards selling marijuana as legitimate, so she takes herself to be in her rights to resist arrest.  But by resisting arrest, she risks conflict with third parties who are not convinced that selling marijuana is legitimate.
In case #1 it may be in Emma’s interest to convince third parties, via some public procedure, that she hasn’t stabbed her roommate; but (absent unusual circumstances – amnesia, hypnotism, or the like) she doesn’t need to do any special epistemological work to establish to her own satisfaction that she hasn’t stabbed her roommate.
But perhaps case #2, involving normative rather than positive inquiry, is more the kind of case that Randy has in mind.  Here too, though, establishing for oneself that a requirement is unjust is not quite the same as (though it will ordinarily display considerable overlap with) demonstrating to the wider society that that requirement is unjust; the former requires seeking reflective equilibration within one’s own belief-set, while the latter requires seeking reflective equilibration within a set of beliefs widely accepted by the relevant community.[97]  So I’m not sure why Randy seems to be running the two questions together.
I’m even more puzzled by the question of how Randy gets from the suggestion, which I accept, that there’s a need for public procedures of justification to reduce the risk of conflict with third parties, to what strikes me as the entirely different suggestion, and one that I don’t at all accept, that such procedures, if of the right sort, might “impart a defeasible duty to obey ... the laws that are somehow adjudicated as just” even when those laws lack “actual or underlying justice.”   It’s one thing to say that we have prudential reasons (and more than prudential – it’s arguably a requirement of civility, at least in many contexts) to try to prove our case in a public forum; it’s another thing to say that when the public procedure generates the wrong answer, we somehow magically acquire a duty, even a prima facie one, to submit to injustice.[98]
In any case, while it will often be advisable to submit one’s disputes to a public system of third-party arbitration, in many cases there will be no good reason to do so.  One such case involves emergency situations of self-defense when there is no time to call in third parties.  Another such case is one in which the prevailing legal institutions, or the political culture, or both, are such as to make a fair adjudication highly unlikely.  For example, when Frederick Douglass decided, in 1838, to try to escape from slavery in Baltimore to freedom in Philadelphia, he followed his own private judgment that his enslavement was wrong; he did not first convene a hearing in the local community and try to make a public justification of the rightness of his escaping.  Given that the legal institutions and political culture of Baltimore were firmly biased in favor of slavery, it would have been grossly unjust to demand of Douglass that he first make his case to a Baltimore court before attempting to free himself.
Now consider the following four propositions about present-day society, in the United States and, really, most places on the planet:
  1. Prevailing legal institutions pervasively forbid what they should permit.
  2. Prevailing legal institutions, even when what they forbid is what genuinely should be forbidden, pervasively assign punitive penalties when they should instead be focusing on restitution.
  3. The failures of prevailing legal institutions are not accidental, but are the predictable result of the incentival and informational perversities inherent in the monopolistic power structure that defines the state itself.
  4. Most people support prevailing legal institutions.
For a defense of the first three propositions, I refer the reader to Randy’s own previous work.[99]  I take the fourth to be fairly obvious.  The first three propositions show that prevailing political institutions are unlikely to generate a fair result.  (Randy may protest that these institutions would be likely to generate a fair result if their administrators followed the Constitution as he interprets it.  But I take the third proposition to show why no legal system is likely to follow the Constitution as he interprets it.)  Consequently, even assuming a duty to justify one’s disobedience in a public forum, such a duty cannot equate to a duty to justify one’s disobedience in a government court.  And the fourth proposition shows that prevailing political culture is not likely to generate a fair result either. 
John Locke famously cites the problem of people being “judges in their own case” as one of the “inconveniences of the state of Nature” that are to be remedied by civil government.  I think Locke was correct (within the limitations I’ve just sketched) to see third-party arbitration as generally preferable to unchecked private judgment.[100]  But his mistake lay in seeing the establishment of a territorial-monopoly state as the means of implementing this desideratum.  First, a monopoly is not necessary to solve the problem, since successful nonmonopolistic systems of public legal arbitration are fairly common throughout history.[101]  Second, a monopoly cannot solve the problem, because a monopoly by definition does not submit its own disputes with its subjects to third-party arbitration.[102]  Randy understands nonstate legal systems too well to make Locke’s mistake; but the argument he is making looks to me surprisingly like Locke’s mistake.
[96.] Incidentally, I think it unlikely that George would agree with all the conclusions that Randy wants to draw from George’s argument.
[97.] For my defense of the reflective-equilibration approach to moral reasoning, see Roderick T. Long, Review of Leland B. Yeager’s Ethics as Social Science: The Moral Philosophy of Social Cooperation, Quarterly Journal of Austrian Economics 6.1 (Spring 2003), pp. 89-98; online at: <> ; as well as Long, Reason and Value: Aristotle versus Rand (Poughkeepsie:  Objectivist Center, 2000); online at:  <>.
[98.] For related discussion, see my “Eudaimonist Reason versus Public Reason,” Bleeding Heart Libertarians (4 May 2013); online at:  <>.
[99.] Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law, 2d ed. (New York: Oxford University Press, 2014); see also “Pursuing Justice in a Free Society: Part I – Power vs. Liberty,” Criminal Justice Ethics 4 (1985), pp. 50-72; online at <>; and “Pursuing Justice in a Free Society: Part II – Crime Prevention and the Legal Order,” Criminal Justice Ethics 5 (1986), pp. 30-53; online at:  <>.
[100.] Locke, Second Treatise of Government 2.13 (1689):  </titles/222#Locke_0057_229>.
[101.] For bibliographic references through 1992, see Tom W. Bell, “Polycentric Law,” Humane Studies Review 7.1 (Winter 1991/92); online at:  <> .  More recent sources include Peter Leeson, Anarchy Unbound: Why Self-Governance Works Better Than You Think (Cambridge: Cambridge University Press, 2014), and Edward Peter Stringham, Private Governance: Creating Order in Economic and Social Life (New York: Oxford University Press, 2015).
[102.] For elaboration of this critique of Locke, see my “Market Anarchism As Constitutionalism,” in Roderick T. Long and Tibor R. Machan, eds., Anarchism/Minarchism: Is a Government Part of a Free Country? (Aldershot: Ashgate, 2008), pp. 133-54.