I think it’s time I revived my old “Libertarian Bookworm” series. The index of previous entries is here. Given my other commitments, I can’t make it weekly, as the previous Bookworm was, but I will try to make it as regular as possible.
It was only this year that I finally read H.L.A. Hart’s classic The Concept of Law, which as Lawrence Solum noted some years ago, is on the short list of contenders for the title of greatest work of legal theory in the 20th century. I think it would well deserve such a title. Hart’s book really is a masterpiece of precision, patience, logic, and realism, and it is easy to see why it is such a favorite among legal academics. More importantly, I agree strongly with his thesis: that the simplistic account of law that goes by the ridiculous euphemism “realism” is absolutely inadequate, and that natural law theory does carry weight, if we will not overload it with supernaturalism and appeals to elaborate mystical structures. Many alleged natural law writers base their arguments on such things, and of course that renders their systems subjective, or runs the risk of doing just what the Pragmatist critics claimed: of misinterpreting what is really just conventional as eternal and natural. But there are certain universal factors in human life—things like “limited resources”—which are dictated by nature, and these give rise to universal rules of conduct that exist in societies, not as a matter of mere convention. Hart writes: “Such universally recognized principles of conduct which have a basis in elementary truths concerning human beings, their natural environment, and aims, may be considered the minimum content of Natural Law, in contrast with the more grandiose and more challengeable constructions which have often been proffered under that name.”
For an Objectivist like myself, this seems elementary, because Hart’s naturalism fits very well with the Objectivist view of natural law: that it is rooted not in any mystical order of the universe, but in the teleology which human nature itself reveals. The positivist argues that morality and law are based solely on convention, and are wholly subjective, and that any attempt to base rules on human nature is flawed because evolution and other modern sciences have demonstrated that human nature is malleable. The pseudo-natural law theorist, on the other hand, argues that human nature is not malleable, it is eternal, part of an unchanging universal order—and this is one reason he tends to shy away from, or even become an outright critic of, evolution. But there is “a third category of statements: those the truth of which is contingent on human beings and the world they live in retaining the salient characteristics which they have.” Natural law politics can, therefore, rest on an account of human nature, even if that nature is the product of a long-term process of evolution that is still going on. Hart fits very well with writers like Harry Binswanger (The Biological Basis of Teleological Concepts) or Larry Arnhart (Darwinian Natural Right).
This book is very rich, and there is an enormous amount of thought-provoking insight in it, but there are two other elements I enjoyed very much. First is Hart’s discussion of the element of generality in law—a point on which Hayek was also eloquent. Law, to be law—instead of mere force—must be general; that is, it must be addressed to society at large, and not to a particular person under a particular circumstance. This argument was a staple of substantive due process, and still is in those areas where substantive due process is still taken seriously: government should not act to deprive us of life, liberty, or property, merely because our opponents have exercised more political influence than we have. The second and related point inspired by Hart is that our commitment to procedural fairness is based on our substantive commitment to fairness. If we decide that a good legal system is one that treats people fairly, then we devise procedural methods of implementing that commitment. And that is why procedural due process is a subset of substantive due process. The content of the rules we devise matters if we are committed to fairness. A rule that says “every Tuesday we will condemn an innocent person” could be applied with absolute precision and be in that sense “fair,” but it would not really be “fair” in that it would not provide equal justice—which was the commitment that led us to value precision in the first place.
Any legal system that sets out to be “fair” or “equal” commits itself to substantive rules as well as procedural ones, because procedural rules are substantive rules. And that means that we cannot avoid the deep questions or shuffle them off to the electorate, as positivists would like to do. Moreover, it means we cannot avoid inquiring into the substance of laws as well as their formal validity. There’s no difference between our rejection of the rule “every Tuesday we will condemn an innocent person” and our rejection of the rule that government can take Susette Kelo’s house away and give it to whatever interest group has persuaded the legislature to do its bidding. In both cases, the substantive rule is not fair, even if it is applied with precision. That is why I say procedural due process is a subset of substantive due process and makes no sense without it.
That point is not addressed by Hart, but is merely inspired by this extremely fruitful and interesting (and short and readable) book. I highly recommend it.
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