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The Nature of Law

Law is to be understood as a normative discipline which identifies certain actions as just or unjust. That is to say, law is a subset of ethics which identifies which party ought have possession in a given conflict.

18 minutes

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Lesson 1

If ethics is a normative discipline that identifies and classifies certain sets of actions as good or evil, right or wrong, then tort or criminal law is a subset of ethics identifying certain actions as appropriate for using violence against them. The law says that action $X$ should be illegal, and therefore should be combated by the violence of the law. The law is a set of “ought” or normative propositions.

—Murray Rothbard1

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Law as a Subset of Ethics

To proceed with an explication of Austrian legal theory, we must understand what the nature of law is. First, law is a normative standard, that is to say that law is evaluative—legal theory identifies a group of criminals and a group of non-criminals with reference to a norm. However, there are normative questions that law does not cover–such as the question of where to plant ones crops, or by what standard should art be judged–that is to say, there may be certain norms, certain guides to action, which are not covered by law, so law cannot be exhaustive of evaluative philosophy.

Second, we know that law deals with justice, that is to say, law prohibits that which is unjust, and permits that which is just. What is meant by saying that $X$ is just, is that $X$ can be argumentatively justified. So law is a normative standard which guides men to just over unjust actions.

Third, argumentative justification is a human action, requiring the use of scarce means—lets unpack that. Action is defined as purposeful behaviour, it is the implementation of some scarce means towards some end—consider the example of John eating a ham sandwich to satiate his hunger. His end is the removal of the hunger, and his means to achieve this end is the ham sandwich. Of note here is that the means a man employs is necessarily scarce, which means that his use of it prevents others from being able to use it. Therefore in argumentatively justifying anything a man has to concern himself with scarcity.

Fourth, because of scarcity there is a possibility for conflicts. Conflicts are defined as contradictory actions, so if Crusoe and Friday are on an island and Crusoe is trying to use a stick to spearfish at the same time that Friday is trying to use it to stoke his fire we have a conflict. The stick is scarce, so its use by one man prevents the other man from using it, so only one action–spear fishing or the stoking of the fire–is able to take place, that is to say that one action excludes the other.

Fifth, because the possibility for conflict exists and cannot be ignored in argumentative justification, any legal theory must assign exclusive property rights so as to determine the just winner in a given conflict. That is to say, law identifies which set of people are engaged in just direction (non-criminals) and which set are engaged in unjust direction (criminals). In other words, law couldn’t assign that a given direction of some means is both just and unjust. Here a property right in $\alpha$ held by $A$ means that $A$ is the one who has the right to direct the use of $\alpha$.

Sixth, a position on the just winner in a conflict, which is to say a position on law, is a position on ethics. Ethics is the area of philosophy which deals in general with guides to mans action—i.e. what man ought do. Specifically, law is a subset of ethics which deals with who should have possession of what, or more specifically who should be the one directing the possession of what, we can therefore define law as ethics applied to the issue of conflicts. This is specifically a subset of inter-personal ethics, contrasted with autistic ethics which deals with how the man alone should act. So ethics is made of autistic and inter-personal ethics, and law is a subset of the latter dealing not in general with how men should interact, but with the subset of interactions that are defined as conflicts. Consider what it would mean to say that law is not in fact a subset of ethics — $A$ claims that he cannot justify his direction of the use of $\alpha$, but also that he should nevertheless be its director. What is meant by $A$ claiming that he should direct $\alpha$? This claim by $A$ is an attempt to justify $A$’s direction, which $A$ claims that he cannot do, therefore $A$ is in contradiction, we shall see shortly that contradictions are falsehoods, therefore meaning that it cannot be the case that $A$ should be the director where said direction is unjust. So, law must be a subset of ethics—there does not exist any legal claim which is not also a moral claim.

Objective Law and its Critics

As we have seen, law is strictly derivable from the nature of argumentation as a human action, employing scarce physical means, therefore to assert that there are multiple different legal codes is to assert that there are multiple different logics, which is called polylogism. Legal-polylogism, then, is the claim that different men may be able to adopt different logics in their argumentative justification of a system of property rights.

The general problem with legal-polylogism is that it implies contradiction, because for there to be different legal codes, $A,\cdots,Z$, $A$ must be incompatible with every other legal code, $B,\cdots,Z$, in at least one aspect, or else they would not be different, but the same, and we would be back to singular law. Imagine that $A$ and $B$ are incompatible on an action $\alpha$, $A$ claims it to be just and $B$ claims it to be unjust. The legal-polylogist asserts that both $A$ and $B$ are correct, that $\alpha$ can both be justified and it cannot be justified—a contradiction. The problem with that is that contradictions are false, which we can see from the nature of argumentation. Imagine Sally and Eric are in an argument over the truth of the proposition $p$. Eric claims that $p$ is the case, and Sally claims that $p$ is not the case—meaning that Eric asserts $p$ and Sally asserts $\neg p$. For Sallys case to be considered an attempted refutation of Eric, rather than simply speaking gibberish or telling a joke, she must pre-suppose that $p$ and $\neg p$ cannot both be correct—that is to say, in disputing anything, you pre-suppose the law of non-contradiction, $\neg(p\wedge\neg p)$.

The Stanford Encyclopædia of Philosophy defines legal positivism as the thesis that the existence and content of law depends on social facts and not its merits.2 In other words, a legal positivist claims that law is not a subset of ethics, and thus there could potentially be such a thing as a virtuous crime to a legal positivist. The article elaborates:

The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.).

Law to the legal positivist, then, is a description of the specific arrangement of possessions that actually obtain, rather than a theory describing the just arrangement of possessions. Let’s break that down, the legal positivist is making the claim that law has nothing to do with justice, rather, the law is determined by raw might, that is if $A$ is able to physically defeat $B$ in a conflict and thus perform an action $\alpha$, the positivist goes only as far to point and say, “look, $A$ won the conflict, therefore the law on this conflict is that $A$ won.” But, this is a complete non-theory; ok, $A$ won, so what? How on Earth they think they get to cordon off an area of philosophy and take the label “law” for what can be summed up in the sentence, “whoever wins a given conflict has won that conflict,” is beyond me. The legal positivist as such can’t even elucidate a theory predicting when people will choose to engage in conflict and who is likely to win—those would be the domains of economics and military theory respectively.

The problems with the positivist thesis do not stop here, even if a positivist were to reject the separation of law and justice, claiming that might makes right, their theory is still in ruin. Because the might makes right theory of law is a form of legal polylogism—it is the claim that the logic of which actions are justifiable can change depending on whether you are able to successfully carry out that action and muscle away anybody who gets in the way. As we saw above, legal polylogism in general is false, therefore this form of legal positivism is false also.

Any notion of a “source of rights” is indicative of positivism and more fundamentally of the fallacy of primacy of consciousness. Rights simply are, they don’t come from some consciousness whether divine or social or individual. It is not arbitrary thoughts or decrees that are the source of rights, but the logic of justification and conflict.

Objective Law as a Science of Human Action

So we have seen that the nature of law implies that there must be universal law—that is, any form of legal polylogism is necessarily false, and further to argue or dispute anything would pre-suppose the existence of a single, universal law. We can say that this universal law is therefore true law, as it is the normative foundation of argumentation, and argumentation is a practical pre-condition for ascertaining the truth or validity of anything. Imagine attempting to dispute that this law is true, first you would have to accept its validity as that validity is implied by the act of argumentation, so you would therefore be explicitly proclaiming it to be false whilst implicitly pre-supposing it to be true, which is a contradiction. A contradiction, not between propositions, but between a proposition and the very act of proposing it. But there is no such thing as a free-floating proposition which does not come from an actor proposing it, therefore there is an objective, natural law.

It is this natural law which shall be elucidated in this course, we understand that its nature is that it is specifically a study of human action, the general science of human action is called praxeology, so law is a sub-science of praxeology. Thus it will be of use to briefly go over some basic praxeology here to make comprehension of the rest of the course easier. First, human action is purposeful behaviour, it is distinct from mere behaviour in that the former involves some intentional aiming at a goal, where the latter does not. So the operation of a mans digestive system or the beating of his heart can be understood as mere mechanistic behaviour as the man does not intend to digest or to beat his heart, and on the other hand his choosing to eat food or shock himself with a defibrillator are purposeful, so these are not mere behaviours but are rather actions.

It is this notion of choice which is crucial to understanding something as an action—action involves a deliberate attempt to change the world to one that man finds preferable to the alternative where he does not engage in said action. It is this choice of what man prefers over the alternative that is the characteristic mark of an action. Therefore for action to be possible in the first place, (1) a man must experience some state of uneasiness, something that he doesn’t like, (2) an imagined state of the world without this uneasiness and (3) the belief that a given action will work to achieve this imagined state without the uneasiness.

When a man acts the result he wishes to achieve can be called his end, man always acts to remove uneasiness and the end is the imagined state without said uneasiness. For man to achieve the end desired he must employ certain means, metaphysical entities are understood as a means when a human plans to employ or is employing it for the attainment of some end. As has been shown, for a man to engage in an action $X$ as opposed to $\neg X$ implies that the man prefers to engage in $X$ as opposed to $\neg X$. What this preference means is that the man thinks that he should do $X$ rather than the alternative for whatever reason.

In the context of legal analysis, one important praxeological doctrine is the distinction between action and mere behavior. The difference between action and behavior boils down to intent. Action is an individual’s intentional intervention in the physical world, via certain selected means, with the purpose of attaining a state of affairs that is preferable to the conditions that would prevail in the absence of the action. Mere behavior, by contrast, is a person’s physical movements that are not undertaken intentionally and that do not manifest any purpose, plan, or design.3

Legislation vs Discovery

In learning philosophy it is often of great use to the student to study the history of philosophy such that an understanding of what ideas have been had and where they came from can be attained. Thus a brief overview of the history of (legal) philosophy seems appropriate to include here. Kinsella provides such a brief overview:4

In modern times the two dominant legal systems are the common law and the civil law. Based on the body of English case law that developed gradually over the centuries, the common law spread to English colonies and commonwealths like America, Canada, and Australia. Modern civil law systems are based on Roman law, which, like the common law, developed many of its important legal principles in the accumulated decisions of jurists in thousands of cases. Virtually all of Europe and many other jurisdictions, including Louisiana, Puerto Rico, and Quebec, have a civil-law system.

In the common law and Roman law, there eventually evolved very sophisticated bodies of legal principles, concepts, methodology, and precedents. Because the classical common law and Roman law developed the large bulk of their legal principles through the decision and discussion of cases, they serve as rough examples of decentralized systems of “judge-found” law, as do largely private customary law systems like the Law Merchant.

So broadly speaking there are two types of legal systems; (1) those based upon “judge-found” law, and (2) those where the legal principles are decreed by legislation. Roman law and English common-law are examples of the former, where the legal principles are obtained by judges attempting to do justice in a number of individual cases, which is why such systems are described as case-law systems. Modern civil law, on the other hand, is the prime example of a legislated system, where principles are embodied in a “Civil Code,” derived from the arbitrary decree of the legislative branch. Under a legislative system the judges are not attempting to do justice in some particular dispute, rather they make reference to the legislative fiat on this matter, so appealing to a judge that a given law is unjust is not going to work where it would work in a case-law system.

The distinction between “judge-found” law and law as decreed by legislative fiat is an important one—in a de-centralised case-law system the judges are at least setting out to do justice. This is in stark distinction to a fiat-law system, where the so-called “laws” are not rational but are rather arbitrary commandments issued top-down by the legislature. Because these commandments are arbitrary there is nothing objective about the laws in such a system, and because the laws are non-objective but rather based on arbitrary–subjective–whim, such a system is per se incompatible with justice and freedom, “even statutes that seem to embody libertarian principles simultaneously subvert those principles.”5 Because in such a legislative system a victim of objective crime cannot appeal to the objective principles of justice, judges can only accidentally make the right call, and they have no way of determining the correct compensation for the victim. In fact, most often compensating the victim is completely ignored, instead the state will charge the victim money in the form of taxes to punish the criminal by some one-size-fits-all punishment scheme, usually imprisonment.

Bruno Leoni has pointed out further, that fiat law systems will tend towards more legal uncertainty.6 This is because where law is determined by arbitrary fiat, rather than objective principles of justice, it can change at any moment—this has the effect of making it challenging to even begin to follow the law in the first place. Consider the many thousands of pages of legislation that are committed to the books,7 professional lawyers whose job it is to know the law could not hope to keep up with this, let alone random citizens. There is also no means of preventing contradictions from occurring between statutes, potentially making it literally impossible to follow the law even if you know about every word of it. This is not so with a found-law system, where there has to be coherence between different objective principles.

So to sum up; the job of the rational jurist is to explicate–discover–objective standards of law, the role of the judge is to attempt to apply this objective body of law in a given case—the rational judge attempts to do justice rather than apply or create (posit) arbitrary rules based on whim. This is an important insight, those in the David Friedman camp, called polycentrists, view an anarcho-capitalist legal order as one of multi-legislation–multi-centralised law–rather than de-centralised judge-found law. The free-market judge is not a mini-legislature coming up with arbitrary decrees, he is and must be attempting to apply objective legal principles. We can–from the armchair–explicate such an objective body of law, what we cannot do is actually elaborate every possible case that might come up—this is the role of the judge, to attempt to apply abstract and objective principles to concrete cases.

Related Reading

Footnotes

1 Murray N. Rothbard, “Law, Property Rights, and Air Pollution,” in idem. The Logic of Action Two, p. 122, https://cdn.mises.org/Law,%20Property%20Rights,%20and%20Air%20Pollution_2.pdf

2 Green, Leslie and Thomas Adams, “Legal Positivism”, The Stanford Encyclopedia of Philosophy (Winter 2019 Edition), Edward N. Zalta (ed.), https://plato.stanford.edu/archives/win2019/entries/legal-positivism/ (archived).

3 N. Stephan Kinsella, “Praxeology and Legal Analysis: Action vs Behaviour” in idem. Causation and Aggression.

4 N. Stephan Kinsella, “Civil Law and Common Law,” in idem. Legislation and the Discovery of Law in a Free Society.

5 N. Stephan Kinsella, Legislation and the Discovery of Law in a Free Society.

6 See Bruno Leoni, Freedom and the Law; see also N. Stephan Kinsella, “Certainty,” in idem. Legislation and the Discovery of Law in a Free Society.

7 https://legalknowledgebase.com/how-many-laws-does-the-united-states-have