Marmor on the Duty to Obey the Law

April 16, 2013 § Leave a comment

According to Andrei Marmor, the fact that law is binding can be explained by the fact that it is a social convention. We all have a property-like right to alter our normative situation vis-à-vis others. We can also transfer this right to others, giving them authority to alter our normative situation on our behalf. We also all participate in a social convention called law. Social conventions have rules, which are binding on their participants. The conventional rules of law are not the first-order substantive legal rules. They are rather a set of second-order, or meta rules, that determine the sources of law. They determine the sources of law by transferring the authority right to public officials who are then authorized to alter the normative situations of citizens with regard to each other. This explains the duty to obey the law. In short, the conventional meta rules that are binding on all of us grant authority to certain public officials to make substantive laws for us.

There are two problems with this argument.

First, it begs the question. Marmor is supposed to explain how it is that people must obey a set of rules that they have not consented to. He explains this by using another set of rules that people have a duty to obey. He hasn’t answered the question. We still don’t know why people ever have an obligation to obey a set of rules they haven’t consented to.

Second, his theory is not positivist. Let’s assume that the meta rules really are binding. If this is the case, I cannot see any reason why there couldn’t also be binding conventional substantive legal rules. This would be a kind of old fashioned common law. Substantive normative rules that just sort of crop up as a social phenomenon without any intentional creation by a public official. (This is how people used to think of the law. Midieval times, Roman law, see Hayek). But if this is the case,  then there are laws that do not emanate from a legal source, which contradicts a central doctrine of legal positivism. Contrary to what he thinks, his theory is not a positivist theory of law.

The Problem with Legal Positivism

April 16, 2013 § Leave a comment

Here is a reductio ad absurdem for legal positivism.

For legal positivism, there are certain sources of law (e.g., kings, legislatures, judges). Whatever emanates from these sources and satisfies the required formalities is law.

Suppose we have a king who has the authority to make law. The king is a source of law. Whenever he puts his seal on a piece of paper, the content of that paper becomes law. The seal is a formality that the king has to satisfy to make law.

Suppose further that the king writes the following on a piece of paper: “John Smith must pay $100 to Jane Doe”. And then the king puts his seal on the paper. Is this a law? I don’t think so. It seems more like a command or order to me. At a very minimum laws must be general and abstract rules that do not name particular persons. To be a law, a thing must have certain characteristics or qualities. Otherwise, it’s just not a law. One of these characteristics is generality or abstractness.

Legal positivism, though, must say that this command to John Smith is a law. This seems to me to be a reductio of legal positivism.

Don’t get me wrong. I understand the legal positivists’ concern about saying, like natural law theorists, that a bad law is no law at all. This would have the equally absurd consequence that there are some “laws” out there right now that everyone in the legal community (judges, lawyers, legislators, teachers, etc) take to be valid laws, but are actually not. It is an absurd consequence of a legal theory if it is in principle impossible to know what the law is . I agree with the legal positivists that you want to be able to say that a law that allows slavery is morally reprehensible but it is still a law. This concern does not apply to my argument. The necessary conditions for law (such as generality) are so basic that I don’t think it would even cross the mind of legislator to attempt to pass such “laws” and no one in the legal community would mistake such things for real laws.

This is furthermore not Fuller’s argument. Laws do not need to  fulfill all of his criteria in order to be laws. I can concede that a retroactive law is still a law, just a bad one. Nevertheless, laws must at least be general in order to be laws. Perhaps they also have to fulfill some other necessary conditions, but it’s enough for my purposes that there is at least one necessary condition for a law to be a law that does not depend on its sources. This implies that legal positivism is wrong because legal positivism takes the sources to be necessary and sufficient conditions for law.

This is such a simple argument that I must be missing something. Please comment. Does anyone not share my intuition that a command such as “pay so and so $100” coming from the proper authority and fulfilling the necessary formalities is not a law?

The Strong Republican Argument Against Libertarianism

April 5, 2013 § Leave a comment

In another post I argue that Pettit’s argument against Libertarians is better than Vallier makes it out to be. Here I want to provide what I take to be the strongest and clearest republican argument against libertarianism.

  1. Freedom is nondomination. You are free only so long as you are independent from the power or control of others. It is not enough that no one is in fact interfering with you. The absence of interference has to be made secure through public enforcement.
  2. The purpose of the common law rules of property and contract is to prevent domination (i.e., the purpose of the common law is freedom). If you cannot rely on keeping what is yours, you are subject to the domination of someone more powerful than you who can take it away. In a contract, if a promisor doesn’t have to keep his promise, the promisee is subject to the domination of the promisor.
  3. However, if you allow the rules of property rights and contract to play out on their own without any additional public regulation, the result will be vast inequality. Over time, the markets will inevitably result in some people having far more than others. There is nothing in itself wrong about inequality from the republican point of view, but when inequality reaches a certain point, domination starts to arise. Employers dominate employees, companies dominate consumers, and the wealthy dominate other citizens by taking over the political institutions.
  4. There needs to be public regulation of the markets. We need employment law, consumer protection law, and electoral laws. And we need taxation to setup institutions to monitor the market to ensure that players abide by these rules. We also need redistributive taxation, not to ensure equality, but to prevent the domination that arises when certain citizens have so much that they can control the political actors.
  5. Since we need redistributive taxation, we will be violating the rules of property and contract. This is fine because the purpose of these common law rules was to prevent domination. When the state breaks these rules via the mechanism of the rule of law it does not dominate its citizens. Moreover, it is breaking the rules for the purpose of preventing domination.

The Republican Argument Against Libertarianism

April 5, 2013 § 1 Comment

In this post at Bleeding Heart Libertarians, Kevin Vallier responds to an article at Open Democracy in which Philip Pettit makes a republican case against libertarianism. According to Vallier, Pettit’s argument relies on the faulty assumption that all libertarians think of rights as natural rights. This misreads Pettit’s argument, which does not at all depend on such an assumption.

Vallier’s reading of Pettit’s argument goes something like this. Libertarians think of property rights as natural rights. Property rights are conventional. They are made by people. They therefore do not deserve the special priority that libertarians accord to them. If we made them, we can change them to suit our purposes. Vallier then lists a number of libertarians who think of property rights as conventional rather than natural.

Whatever the merits of such an argument, it is not Pettit’s argument. Pettit argues instead as follows. Freedom is nondomination. That is freedom is independence from the power or control of others. To be free, it is not enough that no one interferes with you as an actual fact, you need to be protected against the possibility of interference. This means that rights (whether they are natural or conventional) do not make you free unless they are publicly enforced. Republicans therefore see the private sphere of freedom as constituted by the state’s enforcement of the law with force. The private sphere does not come into existence until there is public enforcement protecting that sphere. Libertarians by contrast see freedom as noninterference. As a consequence, they can see the private sphere as existing before there is state protection. Public enforcement does not constitute the private sphere. Because these differences of views, libertarians will always take a hostile stance towards public regulation because they will see it as an infringement of an already existing private sphere. Republicans will take a friendlier view on public regulation because they will see it as the means of making a private sphere.

Pettit’s argument does not rely on the assumption that libertarians think of property rights as natural. Pettit does seem to assume this, but nothing in his argument relies on it. Pettit’s argument on relies on libertarians thinking of property rights as autonomous from public enforcement. If libertarians think of the private sphere of freedom as autonomous from and not constituted by public enforcement, then they will take the somewhat hostile stance towards public regulation that Pettit describes. It is clear from Vallier’s own description of how libertarians think about property rights as conventional that they do think of them as autonomous:

Let’s distinguish, as Hayek did, between law and legislation. Of course we need law to make property rights determinate, but who says that property law must be the product of an extensive nation-state?

Western property law evolved long before the contemporary nation-state and functions rather reliably in many contexts where political authority was extremely limited or non-existent.

The libertarians I know freely grant that property rights require some social construction but deny the Pettitian implication that social construction must be deliberate, stateconstruction.

The picture that Vallier is painting here of conventional property rights is as follows. There is some common law or customary property rights that exist prior to states, legislation, and state enforcement of rights. Libertarians assign special priority to these rights, so states cannot infringe them just because the majority wants to. The mistake Pettit makes is in thinking of all law as legislation, ignoring pre-state common law rules. If you think of all law as legislation and property rights as conventional, then you will naturally make the mistake of thinking of property rights as constituted by the state.

Again this is a misreading of Pettit’s argument. Nowhere does Pettit assume that all law is legislation. In fact, one of the examples of public rules that he gives are the rules of contract, which are common law rules. Moreover, he explicitly talks about the common law rules of tort, specifically the Learned Hand Rule. These are not legislative rules. Pettit can fully agree that conventional property rights exist prior to the emergence of states as the result of the common law or custom and still say that the private sphere is constituted by public enforcement. Even if before the rise of the state property rights were more or less obeyed so that there was a relatively low level of interference with people and their things, this still would not constitute a private sphere of freedom because there is nothing stopping anyone from interfering with you if they wanted to. You would have no freedom because you would have no security with the state backing up your rights with force. It’s in this sense that the state constitutes the private sphere of freedom, not in the sense of creating the rules that determine what belongs to whom.

Republican Free Speech

April 2, 2013 § Leave a comment

Free speech debates assume a liberal conception of freedom. The problem with the liberal conception of freedom is that it often results in an irreconcilable conflict of rights. A republican concept of freedom dissolves this conflict.

Liberal freedom is freedom from interference. A law that regulates expression compromises liberal freedom because it interferes with your ability to say what you want.

A liberal freedom of speech will therefore frequently result in a standoff between two important rights or values. Take obscenity regulations as an example. Feminists argue that pornography infringes the equality rights of women because it either is or causes the subordination of women by men. A law prohibiting some form of pornography would compromise liberal freedom. It would also, however, promote the equality of women. So we have a standoff between liberty and equality.

Republican freedom is friendlier to law than liberal freedom. Republican freedom is freedom from domination rather than freedom from interference. If the people control the law making so that the laws represent the common interest, then the law will not dominate. It is a matter of some debate what it means for a people to control the law making. Suffice it to say that it is something along the lines of a democratic government with a constitutional setup including such things as the rule of law, bills of rights, separation of powers, and so on. A law passed by such a government would not compromise anyone’s freedom. In fact, the purpose of laws in a republican constitution is the creation of freedom by removing the possibility of private domination.

Republican freedom dissolves the standoff between liberty and other rights and values because laws regulating free expression do not compromise anyone’s freedom. A law restricting certain kinds of pornography does not compromise anyone’s freedom. It does however prevent the subordination of women. There is therefore no standoff between important rights or values. The only right at stake is the freedom of women.

Republican free speech is better than liberal free speech because it removes the irreconcilable conflicts between liberty and other rights and values.

In the following video, Larry Lessig makes a republican inspired argument for regulating the political speech of corporations. His reasons are not the same as the ones I give above. He seems more motivated by the rhetorical concern of what will be more likely to persuade US judges.

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