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A Place for Positive Law

Here's a pretty old post from the blog archives of Geekery Today; it was written about 17 years ago, in 2007, on the World Wide Web.

For those of you who don’t know, L. and I will be out of town for the holidays. In fact, we are already out of town; but I’ve arranged to have some not-especially-time-sensitive posts go up while I’m away through devious WordPress scheduling trickery, so stay tuned. While we’re away, we’ll first be visiting my assorted relations in Texas, and then heading east to the Molinari Society session at the APA Eastern Division meeting in Baltimore. The session will be a symposium on the theme Anarchy: It’s Not Just a Good Idea, It’s the Law. Roderick will be presenting a paper on Spooner’s early theory of constitutional interpretation (most famously presented in The Unconstitutionality of Slavery), and the degree to which it can be reconciled with his later radical rejection of the Constitution and all forms of government-made law as having no legitimate authority over anyone. (Geoffrey Allan Plauché will be giving prepared comments in reply.) I’ll be presenting a new paper, A Place for Positive Law: A Contribution to Anarchist Legal Theory, which is also about Spooner, but from a different angle:

Peter Kropotkin famously defined anarchism as

… a principle or theory of life and conduct under which society is conceived without government—harmony in such a society being obtained, not by submission to law, or by obedience to any authority, but by free agreements concluded between the various groups, territorial and professional, freely constituted for the sake of production and consumption, as also for the satisfaction of the infinite variety of needs and aspirations of civilized beings.

If he was right about that, then anarchist legal theory would seem to be either a contradiction in terms, or an exercise in demonology. Anarchists want to abolish the State as such, and replace it with a society without government. And without a government, how would you have laws? Maybe so, but what I want to do today is not to storm the Law from the outside. Before the Law there stands a doorkeeper, and I note that he is mighty. My remarks will aim instead at an internal critique of a common-sense view of the law, beginning with some common premises that most statists share, and then moving towards the anarchistic conclusion that no government has sovereign authority to impose legal obligations on anyone. I will then consider a difficult problem that seems to face the anarchistic conclusion—the problem of reducing the natural law. I shall argue, though, that the solution that government seems to promise cannot withstand critical scrutiny; an anarchist solution to the problem will be difficult—one of the most difficult theoretical problems for anarchists to tackle—but the difficulty is necessary for a solution to the problem that is not simply arbitrary. The place for me to begin, then, is with the concept of law.

John Hasnas will be commenting. You can read the whole thing online. Comments, questions, applause, brickbats, etc. are welcome, either in private or in the comments section below.

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  1. Laura J.

    I found a minor grammatical oddity:

    “It is not enough for a statists to postulate a hypothetical government that makes some rulings worth enforcing on their own merits.”

  2. Laura J.

    “Theories of divine appeal to the injustice of disobeying the will of God Almighty, along with the auxiliary premise that God has willed some particular political regime.”

    I presume that this ought to read “divine right”?

  3. Laura J.

    From the footnotes:

    1. See also Spooner’s Letter to Thomas F. Bayard (1882a) and Natural Law; or, the Science of Justice (1882b) for close variations on the same challenge. I’ve picked out Spooner’s version of the challenge in the letter to Cleveland because it provides he most systematic exposition of the point.
  4. JOR

    Well, as long as we’re picking out typographical errors, this one jumped out at me:

    “It may be more difficult to appreciate Spooner’s discussion of laws that command injustice or forbid injustice – for example, laws against murder, theft, rape, etc.”

    I’m assuming that’s supposed to read, “laws that command justice or forbid injustice”

— 2009 —

  1. littlehorn

    Hi. I have a problem with this part: If there are cases where understanding or applying the principles of justice requires expertise, then all those hard cases should be turned over to experts for judgment. How can there be experts in natural justice, if such a thing is indeed simple to learn ?

    Also, I’ve translated it to French.

  2. Rad Geek


    Well, my point in that footnote is that theories of natural law have differed over how simple and obvious the requirements of natural law may or may not be. Spooner’s view is that the requirements of natural law are simple and are learned naturally by normal people in the course of human interaction; if so, there’s very little room for expert judgment. But not everyone agrees with Spooner; on some theories (e.g. Randy Barnett’s theory of legitimacy) there’s supposed to be an important role for appeals to expert judgment in disputes over justice. My point in the footnote is that, whichever view you take — whether you think that natural law is very simple to learn, as Spooner claims (and hence easily apprehended by any individual person), or more complex (and hence a subject on which most people ought to defer to experts) — neither view lends any support to the government’s claims of exclusive authority over the law.

  3. littlehorn

    Thanks for such a speedy response !

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