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.

I’ll keep this review brief like the last. It’s a monster movie thriller, set in New York City, filmed in a Blair-Witch-home-movie style. We catch glimpses of the monsters once in a while. Mostly we are bombarded by images and sounds of their handiwork. The movie starts off with a going-away party thrown for some yuppie by a bunch of his yuppie friends. Then the attack hits. Chaos ensues. We feel the ground shake, see explosions. Then out on the streets we see the Statue of Liberty’s head fly through the air and slam to a rolling stop down the street. And there’s a love story tying the events of the movie together and driving the main character on. The character I found the most interesting and likable, though, was the main character’s friend (his brother’s girlfriend), Lily Ford, played by a lovely young woman named Jessica Lucas who appeared to me to be of Indian descent or maybe part black. The character was stronger (mentally) and more thoughtful than the main character’s love interest.

Warning! Be careful: If you get headaches and nauseous easily, you might want to avoid this movie. The hand-held camera technique, combined with all the running around, screams and explosions, and falling down, has been known to cause this (and even, I’ve heard, vomiting). It certainly gave my wife a headache and made her nauseous.

There are ample things to criticize in such a movie – obvious ones – but I’ll skip over them. It was good entertainment, and an interesting and risky camera-style approach to monster movies. But it’s too jarring and shallow for me to watch it again I think. The New York Times is typically clueless and hypersensitive about the movie, of course, and gets some facts wrong to boot.

Now – Star Trek XI: The teaser trailer was just that – a tease. You’ll learn next to nothing by watching it. In fact, you’ll get far more info from checking out the IMDB page on the movie coming out in Christmas of this year. Apparently, it will be revisiting the original series crew with an early career adventure. The cast is interesting, to say the least, and I’m none too sure if I’m happy with it. Time will tell. Possible positive notes: the director is J.J. Abrams, who produced Cloverfield, and the screen play is by the same guys who wrote the Transformers screen play (see my review here).

[Warning: Minor, vague spoiler in last sentence of 3rd paragraph.]

I’m finally getting around to reviewing a movie I saw for the first time on dvd a couple of weeks ago. I’ll keep this brief.

Children of Men is an interesting dystopian film set in a near-future fascist Britain. The country has traded freedom for “security,” has closed its borders to immigrants and systematically rounds them up into concentration camps and deports or exterminates them. It is a world beset by terrorism, of the Islamic fundamentalist variety and others.

The premise of the movie, however, is such a stretch that it makes it hard for one to maintain adequate suspension of disbelief. Suddenly and inexplicably over a very short span of time (a few years maybe?) the entire female sex of the human race becomes infertile. Then, just as suddenly and inexplicably, a group of resistance fighters discovers a pregnant woman. Much of the movie is their attempt to smuggle her out of the country.

Though the premise is rather far-fetched, the movie makes interesting use of it for social analysis. With no possibility of children, the extinction of the human race is not far off. Hope for the future seems lost. What effect will this loss of hope have on individuals and on society as a whole? The movie does a good job of dramatizing this on both levels.

There is nothing especially libertarian about the movie, although its depiction of fascism serves as a note of warning. Even the resistance group, or at least certain members of it, can be rather brutal and extreme. The movie has a distinctly British/European sensibility, or so I thought. And though very dark, it does end with a weak and vague ray of hope. The hope, however, is a rather collectivist hope for humanity as a species. There is not much for individuals currently living during the time of the movie to look forward to, but at least the human race just might survive a little longer, provided we can get our acts together.

I did enjoy the movie, and the main actors turned out good performances. Clive Owen. Julianne Moore. I was happy to see Chiwetel Ejiofor, who did such a wonderful job as the chilling government assassin in Serenity, as one of the resistance fighters; and he turned out a fine performance here as well.

Given the caveats above, however, I was not especially moved by the movie, nor did I fall in love with it. Watching one of the documentaries included on the dvd kind of soured the movie for me actually. It is here that we get to see more clearly than in the movie the collectivist and environmentalist agenda that underlies and drives it. One “expert” featured in the documentary caught my attention in particular: former libertarian-turned-green-conservative, John Gray. No, I don’t think John Gray’s come back from the Dark Side yet.

[Updated version at Prometheus Unbound and The Libertarian Standard.]

…because according to this quote cited by Gregory Benford in his happy-birthday letter in Locus Magazine (January 2008), he claims that “there are some general laws governing scientific extrapolation, as there are not (pace Marx) in the case of politics and economics.” Well, far be it from me to disagree that Marx was wrong about a lot of things, but Clarke is wrong here. Sir Clarke, you may be 90 years old now, and happy birthday by the way, but it’s never too late to acquire a firm grasp of sound economic theory.

Benford does report some remarks by Clarke I do agree with, however. For example: “for the one fact about the Future of which we can be certain is that it will be utterly fantastic.” Sounds more American than British to me.

And here’s another: “exact knowledge is the friend, not the enemy, of imagination and fantasy.”

Finally, here’s one that evokes, for me at least, the evils and waste of statism: “All this effort, all this death, when we could be building the staging area for a seaborne space elevator.”

Update: In his May 2008 memorial letter for Clarke, Benford adds two more quotes that I like:

“There is hopeful symbolism in the fact that flags do not wave in a vacuum.”

“New ideas pass through three periods: It can’t be done; it probably can be done, but it’s not worth doing; I knew it was a good ideal all along!”

…against ignorant critics.

“Why attack ‘Compass’ but not C.S. Lewis?” by Jonathan D’Ambrosio (rogerebert.com Letters)

My own two cents: How many of you who denounced and/or boycotted the movie have actually read the book? How can you honestly criticize that which you have not read or seen?

Items from the January 2008 issue of Locus Magazine. (I hope they don’t mind.) The first is just for fun, the rest are libertarian related. My comments are occasionally interjected in [] within an entry or after the blockquoted entry.

Dating, the Final Frontier

Fans of science fiction now have a new place to look for love: online dating site TrekPassions.com. Despite the name, it’s not devoted exclusively to Trekkies, but also to “others who share your passion for Sci Fi. Meet people who read Isaac Azimov, Ben Bova, Robert A. Heinlein, Douglas Adams, Arthur C. Clarke & more. Grok!?” The free social networking site resembles popular services like MySpace or Facebook, but with an SFnal slant, offering message boards and chat rooms. “Whether you are just looking for like-minded friends, someone fun to attend a Sci Fi convention with, or maybe something more, Trek Passions is here for you.” To boldly go… for more information, visit <www.trekpassions.com>.

The Attributor

A new company, Attributor, has created software that can track content on the Web, allowing publishers to discover text that is published online illegally. In a software test in July, Attributor found 2,806 sites contained parts of the book *Harry Potter and the Deathly Hallows*. CEO Jim Brock understands the desire of publishers to remove pirated content, but also sees the software as a tool to expand marketing and sales. Once pirated content is found, Attributor can send an e-mail to the offending site, offering several options: continue to run the material but link to the publisher’s site, come to an agreement with the publisher regarding splitting revenue, and/or demand the content be stricken from the site.

Judge Rules Reading Private

Recently unsealed court records reveal that US Magistrate Stephen Crocker of Wisconsin refused a request from federal prosecutors to issue a subpoena to Amazon.com. Prosecutors wanted to compel the online bookselling giant to reveal the identity of thousands of used book buyers as part of their case against Madison WI public official Robert D’Angelo, who was accused of running an online business from his office without reporting the income [Oh my! Trying to hide personal property from government thieves!] . The judge ruled that the First Amendment protects the right to keep reading habits private. Crocker wrote, “Well founded or not, rumors of an Orwellian federal criminal investigation into the reading habits of Amazon’s customers could frighten countless potential customers into canceling planned online book purchases, now and perhaps forever… The subpoena is troubling because it permits the government to peek into the reading habits of specific individuals without their knowledge or permission… It is an unsettling and un-American scenario to envision federal agents nosing through the reading lists of law-abiding citizens while hunting for evidence against somebody else.” Crocker arranged a compromise whereby Amazon would send a letter to 24,000 customers asking them to voluntarily contact prosecutors if they so desired.

PMA Battles Galley Sales

PMA, the independent book publisher’s association, is asking its members to boycott online retailers that allow sales of galleys and advance reading copies. Practicing what it preaches, PMA has discontinued its arrangement with used book powerhouse AbeBooks.com, which provided PMA members with a discount in the initial fees to sell book through the site. AbeBooks lists hundreds of thousands of galleys and ARCs for sale. PMA’s president, Terry Nathan, says the call to action isn’t directed against AbeBooks in particular, but against all such online booksellers. An AbeBooks spokesman says they have no plans to change their policies to prevent selling advance copies. The practice of selling ARCs is unlikely to end. Once a publisher sends a book to a reviewer, it’s the reviewer’s property, so it’s not illegal to sell them, despite what publishers might wish.

At least PMA is attempting a voluntary solution and not trying to enlist the coercive power of the State.

Potter News

J.K. Rowling has given permission to fans who wish to write their own Harry Potter fiction for publication online. Rowling’s agent said was “flattered people wanted to write their own stories… Her concern would be to make sure that it remains a non-commercial activity to ensure fans are not exploited [that’s either paternalistic or bullshit, or paternalistic bullshit] and it is not being published in the strict sense of traditional print publishing.” He also said writers must not create obscene stories, and that any such stories be credited to their real authors, and not to Rowling [no IP needed for this, it would simply be fraud]. The announcement is largely symbolic – there are thousands of Potter fanfics, x-rated and otherwise, on the Internet already – but it sends a welcome message to fans.

I’m not sure how welcome it is. It is largely an empty pronouncement “ratifying” common practice by powerless IP enforcers. This isn’t a hand-out to fans. It’s just meant to protect Rowling’s image and the authority of the IP system.

Recently my obscure little blog was noticed by a Locus Magazine reviewer. Now I see one of my recent posts was noticed by SFSignal.com.