A Place for Positive Law A Contribution to Anarchist Legal Theory

This essay is a draft in progress of forthcoming work by Charles Johnson. Replies and comments (or private correspondence) on matters of style, content, and argument are welcome, nay, solicited. This draft of the essay will be presented on 29 December 2007 at the annual symposium of the Molinari Society, at the annual American Philosophical Association Eastern Division meeting in Baltimore, Maryland.

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.

Legal Authority and the Concept of Law

Common sense distinguishes laws from mere orders. Laws involve orders: they command, or forbid, or permit. But not every order amounts to a law. Some orders—a sergeant's orders to her soldiers, or a cop's order that you pull over—are too narrow or too particular to be counted as laws. But let us set that issue to one side: while such orders are not usually counted as laws, exactly, they are usually considered to have legal force— if you defy them, you can be legally punished for it. The more important distinction, for my purposes, is the distinction commonly drawn between arbitrary orders, and orders issued by a legitimate authority. Suppose that you and I are at lunch, and I order you to pick up the bill. In spite of my order, you are not obliged to pay. And it would hardly matter if I reformulated my order in general terms—say, Any lunch guest of mine must pay for my meal—or wrote it down on a napkin for posterity, or wrote THIS IS A LAW across the top of the napkin, just to make it clear. The problem is not with the formal construction of the law, but rather that I haven't the authority to impose the cost of my meals on you without your permission. One of the conceptual requirements on law, then, is that a law must be validly issued by a legitimate authority. Without that authority, my orders are idle wind; you're free to pick up the bill if you want to, or refuse to pick it up if you'd rather.

The question, then, is what constitutes legitimate authority to impose legal obligations. The common claim is that I haven't got the authority to impose non-consensual obligations on you, but a legitimately constituted government does, where legitimately constituted is spelled out in terms of some constitutional theory or another. Historically, most anarchistic arguments have focused on criticizing the specific details of one or more of those constitutional theories. But I would like to draw attention to the internal logic of the statist claim, setting specific constitutional theories temporarily off to one side. In order to understand that internal logic, it is important to recognize that the notions of authority and obligation employed there are normative, not merely positive. Statists do not merely claim that governments have the power to make their citizens surrender on their orders: the Mafia can do that in some neighborhoods, and so could I, if I brought a gun to our lunch. Statists claim that governments exercise not merely power but legitimate authority over their citizens, and enjoy a right to compel their citizens to obey.1] Authority, in this political sense, is correlative with deference. If Norton has authority over Twain on some issue, then Twain is obliged to defer to Norton's decisions about it. But it is important to make a distinction here. Robert Paul Wolff points out that

An authoritative command must also be distinguished from a persuasive argument. When I am commanded to do something, I may choose to comply even though I am not being threatened, because I am brought to believe that it is something which I ought to do. If that is the case, then I am not, strictly speaking, obeying a command, but rather acknowledging the force or rightness of a prescription. ... But the person himself [sic] has no authority—or, to be more precise, my complying with his command does not constitute an acknowledgment on my part of any such authority. (1970/1998, 6)

Reason is no respecter of persons, but authority is by nature personal. If Twain is obliged to defer to Norton because of Norton's authority over him, then Twain's obligation doesn't come from the nature of what Norton decided, but rather from the fact that Norton decided it.[2]

In order to avoid a potential misunderstanding, one further distinction needs to be made, which Wolff himself neglected. There are cases where you should defer to an authority because of some special expertise that the authority has. Suppose that Norton is an avid birder, while Twain cannot tell a jackdaw from a magpie. In light of Norton's knowledge and Twain's ignorance, Twain should defer to Norton's judgment on identifying jackdaws. When Norton indicates a bird and says, That is a jackdaw, Twain should consider that a jackdaw, because Norton said it was, even if Twain has no reason other than Norton's personal say-so. But this sort of epistemic authority is distinct from legal authority, and is not really what Wolff seems to have in mind when he discusses the relationship between authority and deference. The reason that lawyers, for example, bring their cases before the Supreme Court is not just that the Nine have some special expertise on the requirements of the law. Maybe they do, but even then, their putative authority over questions of law involves something else. Others are supposed to defer to their judgment because the justices personally hold specific political offices, and the status of those offices is constitutive of the binding force of the judgment. No matter how expert a mere lawyer might be, her opinion on a case still amounts only to a brief, not a ruling, unless and until the judge signs on. It's not that the issue lies within the Supreme Court's expertise, but rather that it lies within their prerogative. When it comes to questions of legal right, the authority that governments claim over private citizens is not just a matter of expert testimony; it is a matter of personal authorization.

Statists claim that governments enjoy this form of authority over a defined territory and a number of citizens: that governments can make laws that are binding and enforceable for anyone subject to the government, and that they can use force to compel obedience.[3] But statists must claim more than just that; they must claim a peculiar form of authority for governments over and above other forms. Under principles of justice, I have the authority to order you out of my house, and the right to shove you out the door, as a trespasser, if you won't go quietly. Statists claim a form of authority above and beyond that for legitimate governments: they claim that governments enjoy supreme authority over the question of legally enforceable claims within their territory. While I have a right to order you off my property, a government claims the right to make and enforce decisive, final, and exclusive orders on questions of legal right—including the right to review, and possibly to overturn or punish, my demands on you. If, for example, there is a dispute over whether it is my property, or whether you have a right to stay there, governments claims the right to decisively settle the disputes, to enforce the settlement over anyone's objections, and deny any party outside the government the right to supersede the government's final say on the settlement. Some governments – the totalitarian ones – assert supreme authority over every aspect of life within their borders; under a limited government, on the other hand, the government only asserts authority over a defined range of issues, often enumerated in a written constitution. But whether a government is limited or unlimited, minimal or maximal, at some point every regime must lay a claim to its citizens exclusive allegiance—they must love, honor and obey, forsaking all others, or else they deny the government the prerogative of sovereignty. And a government without sovereign legal authority is no government at all.

These considerations impose some constraints on the sort of account that a statist can give on behalf of the government's law-making. If the legitimacy of government law is going to be established, then the government's authority over private citizens has to be justified in terms of the special positions that government agents occupy in a society. It is not enough for a statists to postulate a hypothetical government that makes some rulings worth enforcing on their own merits. Of course, if a judgment is worth enforcing on its own merits, then it is perfectly legitimate to enforce it, but the legitimacy comes from the content of the judgment, and has nothing to do with its source. Similarly, it is not enough for a statist to show that if you organize government officials into such-and-such a constitutional order, the institution you've organized will systematically tend towards making correct rulings on matters of legal right. While the source of the ruling may justify a (defeasible) presumption for enforcing the ruling, and may even justify generally adhering to the legal institution that made it, the way that it justifies has nothing to do with government authority. It does not establish that the institution's authorization confers any special legitimacy on either the enforcement or the adherence, above and beyond what private citizens could manage on their own initiative, individually or as members of cooperative defense associations, given enough wisdom, study, and application. Statists need a theory that connects the legitimacy of government legal authority with the personal positions that government agents occupy, and the special sovereign status of the government they represent. Until they produce one, they have not yet justified the special prerogatives that government claims over private citizens—which is to say, they have not yet justified any government at all.

Why There Is A Natural Law

Let's take a step back and consider two of the questions that arose in explicating the concept of legal authority: the question of who has legitimate authority to legislate over whom, and the question of what kinds of laws they have the legitimate authority to pass. To claim that something is a law is to claim that it was enacted by a legitimate legislative authority. Statists identify legitimate legislative authority with a legitimate sovereign government. But then what makes a legitimate government, as opposed to merely an organized illegitimate power? And what obliges any individual person to defer to such a government, once constituted? In the United States, statists are likely to refer the questioner back to the United States Constitution and the powers granted therein; Congress has the power to legislate, whereas you and I do not, because the Constitution grants them and not us the power to legislate in Article I. In the United Kingdom, they may be more likely to refer the questioner to an unwritten constitution that has emerged out of ancient tradition. But neither approach actually answers the question; they only reinstate it at one degree of historical separation. If the legitimate authority of Congress's written laws derives from the powers granted to Congress in a written Constitution, then from what does the Constitution derive its authority? If the legitimate authority of Parliament derives the received traditions of the English nation, what gave the founders of those traditions authority to act in the way they acted then, and what gives the maintainers of those traditions the authority to continue received traditions into the present day? If the statist hopes to avoid an infinite regress, she must eventually appeal to one of two claims:

  1. Legitimate legislative authority ultimately derives from independent principles of justice.
  2. Legitimate legislative authority does not derive from independent principles; it exists, where it exists, as a matter of brute fact.

For a statist to make the second appeal is simply to give up the justificatory game; it is supposed that certain established governments (or, perhaps, certain established frameworks for government) just are undeniably legitimate, and the difference between these governments' laws and arbitrary orders neither needs nor admits of any further explanation. Such a maneuver is possible, but this kind of bootstrapped legitimacy is hardly going to be satisfying to an anarchist seeking a justificatory explanation of legal authority. Perhaps more to the point, it is also likely to be unsatisfying for most statists. Every statist claims that some claimants to government authority have a legitimate claim, whereas others do not; depending on their proclivities they may favor popular sovereignty over monarchy, or traditional monarchy over republican government, or one dynasty of monarchs over another set of pretenders, or whatever you like. So long as they attempt to justify the legitimacy of one form of government over alternative forms of government through some sort of reasoned argument from first principles, they must also be willing to try to offer the same sort of argument in order to justify their favored form of government over the alternative of no government. Thus the very possibility of constitutional theory requires the first kind of appeal, which attempts to derive legitimate legislative authority from principles independent of, and logically prior to, the content of any particular law, code, declaration, compact, or treaty.

Thus, for example, theories of popular sovereignty establish legal authority by appealing, tacitly or explicitly, to a claim that, at least in political matters, it is unjust to defy the expressed will of the majority of citizens in a country. Conservative theories appeal to a claim that ancient political traditions enjoy at least a prima facie presumption that they should be continued rather than disrupted. 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. Classical liberal theories appeal to the justice of complying with a tacit social contract, within the limited sphere of issues – usually defense and the adjudication of disputes over interpersonal justice – for which the contract has been adopted. And so on. Anyone who wishes to advance a positive theory of legal authority must, by that very fact, accept that claims of legal authority are grounded in, and contingent upon, a system of obligations and permissions established by prior principles of justice. Following tradition, we might refer to these independent principles, whatever they may be, as the natural law.[4]

Thus understood, any particular conception of the natural law will have two important roles to play in political justification. In its permissive role, the natural law provides the basis for all legitimately binding laws, by providing for the justice of imposing whatever requirements the law may impose. In its restrictive role, the natural law serves to dissolve the claims of laws passed without legitimate authority. Thus, for example, if liberal social contract theory offers the correct understanding of natural law, the natural law obligation to respect both the delegations and the reservations of authority established by the terms of the social contract, underwrites the binding authority of legislation validly enacted by a prince or a republican legislature, while undermining, as illegitimate, tyrannical edicts that renege on the terms of the contract.

In what follows, I would like to focus my attention on what is entailed by the concept of natural law in its restrictive role. Most theories of political legitimacy have exercised natural law in its restrictive role over procedural questions: who can rightfully make laws, under what circumstances, and upon whom those laws can rightfully be imposed, and by what procedures and under what circumstances. But I would like to consider the extent to which common understandings of legal authority allow for natural law to place substantive restrictions on the content of laws that can legitimately be passed. Any non-totalitarian theory of legal authority must acknowledge at least some substantive limits on what even the duly appointed legislators can write into the law. Thus, for example, classical liberal theories hold that many so-called laws that might be passed by an ambitious prince or legislature would not, in fact, be within the authority of the prince or the legislature to pass; laws that infringe on the rights of life, liberty, or property, which liberal government was supposedly instituted to protect, exceed the authority delegated to governors by the social contract; because natural law confers binding authority only on those laws that lie within the scope of the social contract, citizens can rightly defy tyrannical laws, and a persistent pattern of tyrannical law-making may even form the basis for rebellion or revolution against the established government. Similarly, since the Nuremberg trials it has commonly been held that certain violations of human rights rise to the level of crimes against humanity, which no government anywhere has the right to commit; no matter how legitimate a legislature's procedures may be, procedural legitimacy does not confer any legitimate authority to pass laws that would create Auschwitz or the Einsatzgruppen. Any government that would attempt to pass a law in violation of such fundamental human rights has, by that very fact, abdicated its authority, and has committed precisely the kind of act that licenses individual defiance of the law or a revolutionary uprising.

Such restrictions express aspects of a general principle: that would-be law-makers are subject to requirements of interpersonal justice towards their would-be subjects no less than those subjects are subject to those requirements in their everyday transactions. Since the government's own claim to legal authority depends upon an appeal to prior principles of justice, it cannot violate the ordinary requirements of justice in its legislation without vitiating its own claim to authority by that very fact. Any order that exceeds the limits imposed on legislators by the natural law, necessarily steps outside of the very norms that establish legislative authority in the first place. Unfortunately, it is all too common to blunt the radicalism implicit in this common insight by misapplying the common distinction between natural law and positive law. When the legislature passes an act such as the Nuremberg laws, which independent considerations of justice condemn, it is often claimed that the act is a bad law, which is part of the positive law, but condemned by the natural law. But this grants too much to tyrannical governments. It would not be correct to even describe the order as a part of positive law, for it is no law at all. To the extent that natural law restricts the substance of the laws that can be passed, any legislative act that exceeds the substantive limits that natural justice imposes upon the legislature's authority cannot succeed in becoming law. The so-called law is a dead letter, without any color of authority, just as the so-called laws enacted by an usurper would be. The orders of an usurper may be worth following for reasons that have nothing to do with the usurper's claims of authority, but they carry no more legal authority than the orders that I might scribble down on my napkin at dinner.

Why Natural Law Is The Only Law

In light of this result, the question of what substantive restrictions natural law might impose upon the authority of legislators becomes especially pressing. If natural law strikes down the authority of any law that steps outside of the proper sphere of legislative authority, then citizens are not bound in conscience to obey illegitimate laws, and no agent of the government has any right to enforce such a so-called law. Thus, the more restrictive that natural law is, the narrower the scope within which a government can rightfully legislate; the less restrictive it is, the more latitude a government legislature will have. But I shall argue that a three-fold challenge, posed most clearly in the later works of Lysander Spooner, establishes that the requirements of natural law are so comprehensive, and the limits imposed by natural law are so narrow, that they shrink the sphere of government authority to a vanishing point. There is, in fact, nothing that governments can do to make or unmake any requirement of law. Thus, Spooner argues, in his Letter to Grover Cleveland, that all legislation is either criminal, tyrannical, or idle:[5]

Let me then remind you that justice is an immutable, natural principle; and not anything that can be made, unmade, or altered by any human power. It is also a subject of science, and is to be learned, like mathematics, or any other science. It does not derive its authority from the commands, will, pleasure, or discretion of any possible combination of men, whether calling themselves a government, or by any other name. ... Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them, – that is, all the laws of their own making, – have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men's duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. And nobody is bound to take the least notice of them, unless it be to trample them under foot, as usurpations. If they command men [sic] to do justice, they add nothing to men's obligation to do it, or to any man's right to enforce it. They are therefore mere idle wind, such as would be commands to consider the day as day, and the night as night. If they command or license any man to do injustice, they are criminal on their face. If they command any man to do anything which justice does not require him to do, they are simple, naked usurpations and tyrannies. If they forbid any man to do anything, which justice could permit him to do, they are criminal invasions of his natural and rightful liberty. In whatever light, therefore, they are viewed, they are utterly destitute of everything like authority or obligation. They are all necessarily either the impudent, fraudulent, and criminal usurpations of tyrants, robbers, and murderers, or the senseless work of ignorant or thoughtless men, who do not know, or certainly do not realize, what they are doing. (Spooner 1886, ¶¶ 4–7)

Spooner identifies natural law with interpersonal standards of justice. For Spooner, that means individual rights of life, liberty, and property, understood roughly as these rights have been understood by classical liberals and contemporary libertarians. But the particular content that Spooner assigns to the science of justice need not concern us here. Whatever interpersonal justice may be, it is something that everyone is bound in conscience to obey independently of the demands of any positive law, and it is something which everyone has a right to demand independently of any positive law. (I take this to be part of the concept of justice.) But to the extent that natural law marks off the spheres in which private citizens can act independently of any government legislation, there is that much less that the legislature can legitimately specify in positive law without treading on the substantive requirements imposed by considerations of justice. To the extent that the rights and duties of individual citizens are determined by norms independent of, and prior to, the authority of the government, to that extent government cannot legitimately exercise any special prerogative to define privileges or requirements through legislation. It has no authority that cannot be exercised just as well by any private citizen who either demonstrates the justice of those rights and duty through argument, or testifies to them on the basis of expertise.[6]

Spooner's argument that governments have no legitimate authority to command violations of interpersonal justice may be understood as a radicalized version of the Nuremberg principles. Rather than picking out some point at which injustices become so egregious that laws can no longer command them, he simply argues that laws can never command any injustice at all. The reason for this radicalization may be seen as an application of Socratic principles to legal obligation and the virtue of justice. For a law L to be legitimately binding on a subject S, it must be the case (among other things) that S is bound in conscience to obey the requirements of L. But if L requires injustice, then S cannot be bound in conscience to obey L; virtue cannot require obedience when obedience would necessarily involve violating the requirements of a part of virtue. So if L commands S to do anything that would violate extra-legal principles of interpersonal justice, L cannot truly bind S to obey; the very norms of justice that must be invoked to justify a claim of legal authority undermine L's claim to legal authority. L, being criminal on its face, cannot have any binding authority over anyone.

We may turn, then, to Spooner's argument that legislators have no legitimate authority to forbid actions that natural justice would permit. It may be claimed that it is not tyrannical for a sovereign law-maker to impose new requirements above and beyond those imposed by natural justice by virtue of the consent of the governed. Liberal theorists draw up the analogy of a social contract, suggesting that private citizens—who could freely form, or withdraw from, any cooperative defense association in the state of nature—agree (for various reasons) to bind themselves to a single, common sovereign. The agreement is conditional on the government's willingness and ability to protect certain privileges and immunities; but so long as the government does not become so invasive or so incompetent that the contract is effectively nullified, it retains the sovereign authority to override or suppress any private efforts to withdraw from its authority, or to carry out the adjudication of individual rights privately, in competition with government law. Enforcement merely holds citizens to the terms of an agreed-upon contract. Since no actually existing government has ever produced an explicit contract to that effect, let alone limited its jurisdiction to those who explicitly signed on to the terms, it is usually claimed that something citizens have once done, or are continually doing, constitutes tacit consent to the legislature's sovereign authority—just as sitting down in a restaurant and saying I'd like the soup of the day constitutes a tacit agreement to pay for the soup after you've eaten it.

Thus, it is commonly suggested that active participation in government programs—such as voting in democratic elections, or paying taxes, or relying on the government legal system, or accepting government benefits—expresses a tacit agreement to the legislature's terms. Sometimes it is even suggested that passive participation, such as maintaining residence or conducting business in the known territory of the government, amounts to tacit consent. But neither suggestion can be taken seriously. It's true that you can passively consent to conditions, under the right circumstances. People who go to the cinema tacitly accept an obligation to turn off their cell phones during the feature: if they don't accept the rules that management has made, then they should simply leave. But the cinema's authority to dictate terms here depends on its owners' proprietary authority over their own land and their own facility; cinema management has no right to go around demanding (for example) that I turn off my cell phones while watching movies in my own home. Similarly, the government has the right to legislate special terms for living or doing business within a territory—i.e., to require obedience to laws that go beyond what is already required by independent considerations of justice—only to the extent that it already has legitimate authority over that territory. But if claims of tacit consent presuppose the legislature's sovereign authority over other people's homes and businesses, tacit consent cannot then be used to justify claims of legislative sovereignty without crassly begging the question.

Active forms of participation may seem more promising, since they involve direct participation in government programs. But the contractarian cannot safely infer consent from any of these forms of consent, either, unless she is also willing to identify some meaningful way for individual people to refuse their consent, or to withdraw it once given. It may be true that government laws can require a citizen to live up to obligations that she consensually took on herself, and that certain actions may constitute a tacit agreement to take on the obligations even if she never explicitly says so. But consent for an open-ended, ongoing political process must be sustained in order to justify the on-going obligation. Anyone who wishes to withdraw from government authority, ex hypothesi, no longer gives her consent. And the concrete act of participation can only express consent if there is some other action by which a citizen could have expressed refusal.[7] Legislators do not take No for an answer: they claim the right to exercise sovereign authority over private citizens whether or not any particular citizen has voted, whether or not she has paid taxes, whether or not she has accepted any government benefits, and whether or not she has ever availed herself of the court system. If the contractarian's claim of tacit consent amounts to the claim that citizens are bound to live up to an indefinite, irrevocable obligation to obey government laws, which no citizen could have meaningfully refused to take on, anyway, then she may as well call the basis of her position what it is—unilateral command—rather than trying to pass it off as some form of consent.[8]

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. It is, after all, true that governments are perfectly justified in enforcing those laws. But insofar as these laws do command injustice, or forbid injustice, it must be recognized that the obligation to follow those laws, and the government's right to enforce them, derive entirely from the content of the laws and not at all from their source. The government is justified in enforcing those laws not because they were made by the government's legislators, but rather because anybody would be justified in forcibly forbidding murder whether or not a group of lawmakers had signed off on a document stating Do no murder. The government is, at best, making declarations that recognize pre-existing obligations, not making laws that impose obligations.[9] And those declarations can be objectively assessed by anyone, with or without official approval from some body styling itself the government.

Thus, a robust theory of interpersonal justice narrows the scope of legislative authority until the legislature finally vanishes entirely. If law can be used to identify any binding and enforceable general principles of conduct, then the independent principles of natural justice already determine the content of the law before the legislature ever passes a bill. If law is used more narrowly, to mean binding legislation passed by a legitimate constituted authority, then there is no law at all, because if legitimate political authority is circumscribed by the requirements of justice, and justice demands that no-one be forced to do anything above and beyond respecting the individual rights of others, then any demands the law might make are already preempted by the demands made by natural justice. Of course, an institution could call itself the government, and it could debate and approve the publication of a series of pamphlets, declaring that murder is a crime most foul, theft can legitimately be punished, etc. But this would hardly be promulgating law. Anything that a government may legitimately do must derive from objective and impersonal considerations of justice, not from some political prerogative invested in the so-called legislature. Indeed, private citizens must be as free to enforce the requirements of justice on members of the so-called legislature as the so-called legislature is enforce them upon private citizens. With no special prerogative to establish either rights or enforceable duties beyond what natural justice grants to every individual already, the claim of sovereignty by any government must involve either usurpation, or else idle pretense.

A Place for Positive Law Within The Natural Law

However, there is still, at this point, a final straw at which a statist can grasp, even after Spooner's challenge has been taken fully into account. It has to do with a lacuna in Spooner's account of the possible relationship between a piece of legislation and the background principles of justice. In the argument considered above, Spooner considered three possible cases: (1) The legislation may demand something that contradicts what respect for justice requires; then the legislation is criminal. (2) The legislation may demand something that exceeds what justice requires; then the legislation is tyrannical. (3) The legislation may demand something identical to what justice requires; then the legislation is idle. Thus no legislature has legitimate authority to make any laws that shall be either more, less, or other than that natural law, which it can neither make, unmake, nor alter – and cause them to be enforced upon the people of the United States, or any of them, against their will (Spooner 1882a ¶ 3). His argument presumes that natural law decisively settles every question of enforceable obligations, leaving no room for legislators to exercise legitimate prerogative. And this is certainly true for most provisions of both the criminal law and the civil law: prohibitions on murder, robbery, theft, rape, negligence, fraud, etc. are all demanded by principles of justice whether or not a legislature has put those obligations into law, and prohibitions against speaking freely, fulfilling just contracts, aiding fugitive slaves, etc. are all forbidden by principles of justice even if a legislature has written those obligations into law.

But Spooner's three-fold argument overlooks an important possibility: there may be cases where apriori principles of natural justice do not fully specify how to apply individual rights in the case at hand. For example, it may be that justice requires that cars going opposite directions on a highway should drive on opposite sides—so that drivers will not needlessly endanger each other's lives. But natural justice surely has nothing in particular to say about whether motorists should drive on the left or drive on the right. It requires that some rule of the road should be adopted, and that once adopted, the rule should be obeyed by each individual motorist. But the question of which to adopt is a matter that needs to be settled by some means other than appeals to natural justice. Medieval legal writers described these sorts of cases as reducing the natural law (in the sense of making it more specific): the idea is to spell out the details for cases where the principles of natural justice underdetermine the correct application of individual rights. Thus, the statist may think that she has found a way to eke out a place for positive law-making in spite of Spooner's challenge: since there has to be some specification of how to apply rights in these cases, but more than one specification is compatible with the requirements of justice, a statist might think that you need a government to take on the prerogative of specifying which one to adopt. It's a dirty job, but someone's got to do it.

Sovereignty here means the right to serve as the sole, or at least final, authority on setting out auxiliiary principles for applying individual rights to specific cases where the requirements of self-ownership are vague or contingent. If you need some one answer, but which answer you need is left underdetermined by the content of individual rights, then why not invest some institution with the prerogative of determining it? Although I think that the problem of reducing the natural law is one of the hardest problems for anarchist theory to resolve, I do not think that the statist is actually in a stronger position than the anarchist. The difficulty that the statist faces can be brought out by another challenge, also from the works of Lysander Spooner. This second challenge is expressed most clearly in No Treason no. 1, when Spooner argues:

The question still remains, how comes such a thing as a nation to exist? How do millions of men [sic], scattered over an extensive territory – each gifted by nature with individual freedom; required by the law of nature to call no man, or body of men, his masters; authorized by that law to seek his own happiness in his own way, to do what he will with himself and his property, so long as he does not trespass upon the equal liberty of others; authorized also, by that law, to defend his own rights, and redress his own wrongs; and to go to the assistance and defence of any of his fellow men who may be suffering any kind of injustice – how do millions of such men come to be a nation, in the first place? How is it that each of them comes to be stripped of his natural, God-given rights, and to be incorporated, compressed, compacted, and consolidated into a mass with other men, whom he never saw; with whom he has no contract; and towards many of whom he has no sentiments but fear, hatred, or contempt? How does he become subjected to the control of men like himself, who, by nature, had no authority over him; but who command him to do this, and forbid him to do that, as if they were his sovereigns, and he their subject; and as if their wills and their interests were the only standards of his duties and his rights; and who compel him to submission under peril of confiscation, imprisonment, and death?

Clearly all this is the work of force, or fraud, or both.

... We are, therefore, driven to the acknowledgment that nations and governments, if they can rightfully exist at all, can exist only by consent. (Section III, ¶¶ 1–6)

Spooner's aim in No Treason is, famously, to demonstrate that citizens are only obliged to recognize the sovereign authority when, and only for as long as, they genuinely, individually consent to recognize its authority. But what I want to draw attention to here is the underlying reasons that Spooner suggests for the requirement of consent. What Spooner calls attention to in this passage is the notion of a political jurisdiction and asks to know what it is that binds a group of otherwise unrelated people together into a nation or a state over which a government can legislate. By what right does some gang calling itself the government, no matter how strictly limited, gain authority over a bunch of people who never had anything to do with them? If there is some question of different ways in which rights could be applied, then what sort of process and what sorts of relationship justify the special claim that a would-be government would make to establish their judgment in preference to all the others? What makes them special, and what have I got to do with them?

Spooner suggests that genuine, individual consent can explain their authority over a jurisdiction. Suppose that Twain and Kearney have a dispute over how long a plot of land must be left unused before it can be treated as abandoned and reclaimed. If Twain and Kearney agree amongst themselves to turn the question over to Norton and defer to his judgment, then it is clear how Norton has jurisdiction over the case: Twain and Kearney agreed to bind themselves to his judgment. But suppose that Twain and Kearney never agreed to turn the question over to Norton. Perhaps they have never even had anything to do with Norton at all. If Norton should insist that his judgment should still be deferred to, because he is the Emperor, then the burden is on Norton to explain what it was that binds Twain and Kearney to him in such a way that his judgment is more authoritative than anyone else's arbitrary fiat. If the boundary between between Kearney's and Twain's claims is vague and needs to be made more precise, then how does Norton, specifically, get the right to butt in and enforce his specification, except by consent of the parties to the dispute?

But if consent is the standard, then the consent must be genuine. Again, it must be possible to refuse consent, or to withdraw it later once given. That does not mean that Twain can later renege and ignore Norton's decision, if he consented to let Norton decide the case. It does mean that Twain can later decline to let Norton decide any more cases for him. Thus consent cannot justify any government body claiming permanent and irrevocable sovereignty. If a law's jurisdiction depends on the consent of those who have put themselves under it, then each of those those people must be individually free to take herself out of the jurisdiction and create or align herself with a new jurisdiction. The government can lay no stable claim on sovereign political authority if it depends entirely on consent. But without consent, it's hard to see what distinguishes the government's assertion of special authority to decide the case from mere arbitrary fiat.

Consider the issue of constructive abandonment. Under any system of property rights, there must be some limit to how long property can be left alone without attempts to maintain it or exercise control over its use before that property can be considered as abandoned. But while apriori principles of justice may very well require that some rule for constructive abandonment be adopted, and while they may impose some definite constraints on the rules that may be adopted – for example, thirty minutes is too short a time to count as abandonment, and one thousand years is too long – it is doubtful that natural justice, by itself, determines whether squatters should consider the property abandoned after four years, or five years, or six. Such fine-grained judgments will necessarily depend on individual declarations, interpersonal agreements, and, to a large extent, on established conventions within the community. If a community has come to a consensus that four years of neglect rather than five is good enough to consider a property abandoned, then a would-be law-maker has no business arbitrarily invading the liberty of citizens by overriding the settled convention. If the community has not reached a consensus on the length of time, but the parties to the dispute have agreed to submit it to some third party whom they trust more than the would-be law-maker, then the law-maker has no authority to arbitrarily butt in and enforce its own decision over that of the terms agreed upon by the arbiter and the parties to the dispute. If the community has not reached a consensus on the length of time, and the parties to the dispute have not made any steps towards arbitrating the dispute, then it is hard to see where a would-be law-maker has any business forcing them into arbitration, let alone forcing herself upon them as the arbiter.

Under dire enough circumstances – if, for example, the dispute is not only unresolved but careening towards a violent feud – there may be some basis for claiming that the parties to the dispute could rightfully be forced to the bargaining table by an impartial third party. I am not confident that this is true, but I am not confident that it is false, either. What I am confident of is that, if third parties ever have the right to force arbitration, then the right is possessed by everyone, and has nothing to do with the special prerogatives of a government to arbitrate. For a would-be legislator to claim an exclusive or superior authority to intervene within an arbitrarily asserted jurisdiction might not usurp the natural authority that justice confers on the disputants. But if it did not, then it would usurp the natural authority of other potential arbiters, who would have just as much of a right to intervene as the self-styled government.

There is, then, a place for positive law in a just society. But the place is quite different from the place it has traditionally been given by statist theories of law. Because the authority of any law whatever depends on the independent requirements of natural justice, positive law cannot exceed or violate the requirements of natural law; any government which attempts to pass such laws can have, at most, the power, not the authority, to force compliance, and all government laws that are not included within the scope of natural justice may be ignored, evaded, defied, or resisted at will, because such laws, so-called, are in fact no laws at all. The role of positive law can be, at most, to provide auxiliary principles for precisely applying vague or underdetermined requirements of natural law to specific cases. But this role provides no place for sovereign government authority; the statist solution falls back on nothing better than arbitrary fiat, but if that's all the government has, then it has no better claim to authority than any private citizen, or association of private citizens, could exercise on their own. Thus positive law demands anarchy for its binding force; Liberty is the mother, not the daughter, of Law. □

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  1. I have used legitimate as a modifier on authority in order to illustrate an important point. But in so doing, I also run a serious risk. If I speak of legitimate authority, that might seem to suggest that I'm not distinguishing authority from mere power, but rather distinguishing two different kinds of authority—the legitimate kind and the illegitimate kind. Then it would seem that the issue between statists and anarchists is not whether governments have the authority they claim, but rather whether the authority they have is legitimate authority or illegitimate authority. But this is a serious mistake, which I think leads to other mistakes; I will return to some of them near the end of this essay. For now, it will be enough to note that, as I am using the terms legitimacy and authority, all genuine authority is legitimate authority. Illegitimate authority is not a special kind of authority which is illegitimate, any more than counterfeit money is a special kind of money which is counterfeit. Illegitimate authority is, rather, mere power, fraudulently portrayed as rightful authority.

  2. One weakness of Wolff's discussion is that it neglects the element of compulsion. If Norton has authority over Twain, then Twain is obliged to defer to Norton, but some obligations are enforceable and others are not. Governments don't just assert that citizens are bound in conscience to obey government rulings (as Catholics, for example, are obliged in conscience to defer to papal decrees). One of the defining features of governmental authority is that obedience is not only demanded, but compelled, in the last resort through the threat or the use of physical force. I think this ambiguity leads to some avoidable weaknesses in Wolff's critique of government authority, but nothing turns on it here: when I say that authority entails an obligation to defer, I mean an enforceable obligation and not just an obligation of conscience.

  3. It should be clear that this is a necessary but not a sufficient condition for counting as the government of a given State. Anybody might claim the right to issue enforceable legal orders, but only some of the claimants are part of the government. (I gather that there are still Bourbon pretenders who claim the right to rule France; but whatever their aspirations, they are not currently the government of France.) But for any institution to count as the government, it must at least make the claim, or act in a way that manifests the claim: an institution that did not even claim the right to make enforceable legal orders might very well issue political position papers; it might give advice on how to live; but it would not be making laws.

  4. For the purposes of this essay, the concept of natural law can remain a fairly thin one, understood simply as identical with whatever set of pre-legal norms justifies legitimate claims of legal authority and undermines illegitimate claims of legal authority. What these norms are is something to be determined through ethical inquiry, not the scientific inspection of nature. The term natural here is meant only to contrast with artificial, meaning that the natural law, whatever it may be, is something prior to and independent of the work of any particular legislator. Thus it should not be confused with the kind of natural law that keeps the planets orbiting along conic sections, or with various crude attempts to identify certain sexual practices or economic arrangements as contrary to nature and therefore morally depraved. For the purposes of this essay, the theory of natural law also need not have any connection with a robust theory of teleology, whether Aristotelian or Thomistic. Any ethical theory that allows for objective norms of justice will be consistent with the notion of natural law as used here.

  5. 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.

  6. Spooner 1882b argues that the principles of justice are usually a very plain and simple matter, easily understood by common minds (Section IV ¶ 1), and that Men [sic] living in contact with each other, and having intercourse together, cannot avoid learning natural law, to a very great extent (Section IV ¶ 2). If so, then the commands of natural justice could all be understood as conclusions of arguments, without the need to appeal to the authority of experts. While I think that this is true of most if not all cases, nothing turns on it for the purposes of the challenge to legislative authority. 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. But it would be fallacious to infer from that that there must be some expert to whom all hard cases are turned over for judgment. In any case, the basis for the authority of the judgment would be acknowledged wisdom and judgment, not personal political position.

  7. If refusing the advances of government were so easy, anarchists would have no objection to it: if anyone can withdraw from the authority of the government simply by not voting, or not paying taxes, or by refusing government benefits, then the government has simply converted itself into a voluntary defense association. Since the government now allows anyone to withdraw from its authority, provided that they no longer avail themselves of the government's services, it has ceased to be a sovereign government.

  8. For a fuller discussion of these points, see Spooner 1867–1870, and the first chapter of Barnett 2004.

  9. If the government passed a resolution stating that the square of the hypotenuse in a right triangle is always equal to the square of the other two sides, then the resolution would say something true, and something that everyone is obliged to believe. But it would hardly justify the claim that we need a properly geometrical government to serve as the final arbiter of the properties of right triangles.