During December 27-30, 2007 I attended the annual eastern division meeting of the American Philosophical Society. There I offered comments on Roderick’s paper, “Inside and Outside Spooner’s Natural Law Jurisprudence,” presented as part of the Molinari Society Symposium. I have been remiss in procrastinating on typing up and posting my comments. So now, fully a month later, here they are.
I understand the purpose of Roderick’s paper to be to reconcile two seemingly contradictory positions or theories on the relation between liberal legal norms and positive/customary law apparently held by Lysander Spooner before and after the Civil War, respectively.
For those who have themselves been remiss in reading Spooner – shame on you! ;o) – Spooner’s arguments against slavery, militarism, gender inequality, plutocratic privilege and the monopoly state, and his defense of free markets as against the corporate-capitalist wage system, are primarily based on legal reasoning.
Roderick points out that in Spooner’s prewar writings he appears to critique and interpret positive laws from norms arising within it. In contrast, in his postwar writings, he seems to reject positive law entirely from an external critique grounded in natural law. Roderick points out that both positions considered separately, and on their face, might seem absurd. Roderick argues persuasively instead that both approaches are actually manifestations of a single and attractive natural law theory. The differences between them arise merely from a shift in emphasis.
The cause of the shift is unknown, and there may be more than one, but one can speculate that disgust with both sides over the war was a major contributing factor. Positive law, as embodied by the Constitution, had either failed to prevent the grave abuses of the past seventy years, including the war, or it had in fact authorized them. Either way, these facts were a clear indictment.
Roderick further points out that even in his prewar writings Spooner held natural law to be an external constraint on positive law, but he often preferred to interpret positive law documents on their own merits. Moreover, Spooner could invoke natural law on positive law grounds in the form of libertarian legal norms applied more consistently than is usually the case.
Roderick argues intriguingly that the foundation of Spooner’s natural law theory seems to be that some degree of reliance on libertarian principles is necessary in order to have a workable social order. So the greater the reliance the better the social order functions, and the less the worse. The distinction between Spooner’s “immanent” and “external” approach blurs with the understanding that the nature and content of natural law emerges from the requirements of law as such. In other words, as Roderick formulates the argument: “legal institutions cannot function without these natural law principles, so these natural law principles are to be regarded as part of law as such” (p. 31).
There is an issue on which I do not think Roderick is entirely successful, however, and that is in reconciling Spooner’s pre- and post-war positions on the status of positive law. Roderick says that the difference is not so great as it might appear; however, the difference being not so great does not eliminate the difference entirely. Prewar Spooner accepted some role for adding specificity to natural law and thereby creating additional obligations. Postwar Spooner held that positive law adds nothing to natural law. Long explains that the new positive law obligations can just be seen as applications of prior natural law obligations, and this is true as a matter of reducibility to the ultimate source of obligation. However, this is no justification for doing away with positive law entirely. Positive law does add specificity to, and other obligations not present in, natural law alone, even though we are only obligated to obey the positive law because of a more fundamental natural law obligation.
A case in point being our customary moral and legal obligation in America to drive on the right side of the road. Natural law does not specify which side of the road we ought to drive on. It does specify that we ought not to recklessly endanger the lives of others. Given that driving on just any part of a road we like will endanger our own lives and the lives of others, it makes sense that sticking to one side or the other will serve to minimize this risk. Which side we drive on is morally arbitrary before it is picked, but once a particular side becomes customary then we have a moral and legal obligation to drive on that side. So we have here two obligations, the one not to recklessly endanger the lives of others and the other to drive on the right side of the road, the one general and the other specific, with the latter being dependent upon the former for its moral and legal force; but the latter was not present in the natural law from the beginning and only arose as a matter of custom to fulfill a particular need. One might further distinguish between these two obligations as the former being a general principle while the latter is a particular or specific rule.
I have a few other minor quibbles with Roderick’s otherwise excellent paper. Regarding the first, a reader not familiar with Spooner may read the first few sections of Roderick’s paper and assume there is something of a controversy over how to interpret Spooner on these two seemingly incompatible approaches. However, Roderick cites no examples of such misinterpretations of Spooner. Then, when such a reader gets farther into the paper he might wonder what all the hubbub from the first few sections was about, i.e., why or even whether there is even any controversy at all, so easily and elegantly does Roderick resolve the apparent quandary. Indeed, the careful reader familiar with a number of Spooner’s major pre- and post-war writings, but not having a comprehensive knowledge of Spooner’s writings and of writings on Spooner, might well wonder the same thing. I myself am one of these carefully reading Spooner-philes not familiar with all of Spooner’s writings or all writings on Spooner. I wonder if there are any published examples of misinterpretations of Spooner related to the subject of this paper. If there are, I think some of them should be mentioned. If there are not, well, the paper still performs a valuable service in clearly, concisely and elegantly explicating the theory of natural law underlying Spooner’s two approaches. I have no disagreements with Roderick’s presentation and interpretation of Spooner, the sole exception being that which I discussed in the two previous paragraphs.
The second minor quibble pertains to something I would have liked to see in the paper, and that is perhaps a brief sketch of how Spooner’s theory of natural law could be grounded in a eudaimonist virtue ethics, in human nature. This would be useful, in particular, for those not familiar with how it might be done. I’m not sure if this would make the paper too long, or take it too far afield from its primary purpose, but I offer it as a suggestion nevertheless.
For a direct link to Roderick’s paper, click here. Charles Johnson’s paper “A Place for Positive Law: A Contribution to Anarchist Legal Theory,” presented on the same panel, is also a recommended read and a nice complement to Roderick’s paper.