Getting it wrong

Ever since I’ve read about the anarchist legal theorist, Lysander Spooner, I have developed an interest in jurisprudence, and natural law in particular. As I wrote the other day, I was looking forward to discussions with S about that, and I did manage to have a few chats with her, but we kept getting confused about what each of us were saying, or so it seemed. I’d asked her about what she were told on the topic of natural law, while she studied. She couldn’t really dig up such old notes, but she did find an old handbook that provides a summary of most theories of law, and it has been quite a challenge reading through it and not banging my head on the wall all the time. There are times when I feel like taking a huge marker and simply writing a huge ‘WTF?’ across a page. I want to give two examples that I just encountered. The first one comes from Dworkin, whom we are told occupies a middle-road position between positivism and natural-law:

Dworkin distinguishes between rules and principles in the following manner.

In the process of adjudication, principles apply or operate differently from rules. Where a rule applies, it does so in an ‘all or nothing’ fashion, reauiring that the case be decided or the dispute resolved in accordance with it. Where a principle applies, however, it does not do so in a conclusive fashion. It provides a reason for the case to be decided in a certain way, but does not require that the decision be necessarily in accordance with it. This is because it is possible for principles to conflict, and in such situations they have to be weighed and balanced against each other, before the decision is made to apply the one or the other.

Because of their propensity to conflict, principles have weight, a quality or dimension which allows them to be compared, balanced, and for choices to be made between them. Rules do not have weight in this sense. The validity or invalidity of rules is not debatable. Either a rule is valid or it is not. Either a rule applies to a particular case or it does not. There is no question of balancing rules one against the other.

Because they do not have the dimension of weight, rules cannot conflict and remain both valid. Principles can, however, both be valid and legally binding even if they conflict.

Now, I don’t know what you’re thinking. Here’s what I’m thinking: whatever is the difference between a rule and a principle? Why do rules and principles even belong to different categories ? Also, if two principles conflict, doesn’t that mean one of them is false, ie. is not a principle at all ? And if one is false, and therefore not a principle, how can both be valid and binding ? Sadly, I’m a natural law type and to me a principle/rule is binding, because of its nature and validity as a principle/rule. Below is a quote by Spooner that provides a nice contrast with the above ‘distinction’. Emphasis mine.

If, then, law really be what this definition would make it, merely “a rule of civil conduct prescribed by the supreme power of a state ” ‑‑ it would follow, as a necessary consequence, that law is synonymous merely with will and force, wherever they are combined and in successful operation, for the present moment.

Under this definition, law offers no permanent guaranty for the safety, liberty, rights or happiness of any one. It licenses all possible crime, violence and wrong, both by governments and individuals. The definition was obviously invented by, and is suited merely to gloss over the purposes of, arbitrary power. We are therefore compelled to reject it, and to seek another, that shall make law less capricious, less uncertain, less arbitrary, more just, more safe to the rights of all, more permanent. And if we seek another, where shall we find it, unless we adopt the one first given, viz., that law is the rule, principle, obligation or requirement of natural justice?

Adopt this definition, and law becomes simple, intelligible, scientific; always consistent with itself; always harmonizing with morals, reason and truth. Reject this definition, and law is no longer a science: but a chaos of crude, conflicting and arbitrary edicts, unknown perchance to either morals, justice, reason or truth, and fleeting and capricious as the impulses of will, interest and power.

It is quite clear then, that two principles, under natural law, cannot be conflicting; and it is precisely because positivism includes ‘conflicting and arbitrary’ edicts and commands in the category of rules/principles that some balancing is required between them. Let’s continue down Weirdness Rd. The handbook later on quotes J.S. Mill and states such falsehoods that it’s incredible the paper didn’t acquire a conscience to burn itself out, out of shame. Again, emphasis mine.

The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others…

For Mill, the individual should have liberty in regard to actions which do not affect the rights of others. Such rights are determined by reference to justice. Justice defines that sphere of conduct where society has an overriding interest and the individual takes second place.


In regard to the harm principle, a problem is posed by the question of identifying exactly what is meant by ‘harm’. Does this mean:
* physical tangible harm?
* physical harm and certain moral – that is, where there is a public dimension to a private act – harm?
* physical and moral harm?
* In the context of the harm principle, Mill’s reference to ‘harm to others’ may best be understood in the sense of ‘harm to the interests of others’.

The liberty which people in society have in the pursuit of their own good in their own way must be limited by the need to protect the interests of others, for if it is not so limited then those whose interests are injured will be unhappy, thus reducing the general level of satisfaction in society. In society, some interests are left to the individual to decide on how best they may be protected or advanced. However, there are other interests which society will protect, either through express legal provision, or by way of tacit understancing in the form of public opinion. Such interests then constitute rights. Justice requires the protection of these rights and in this regard it is what justifies the limitation of the freedom or liberty of individuals.

If your head didn’t explode by now, then join the club of survivors. What started as a simple statement that defense against coercion justifies coercion against the aggressor, ended with a theory of law that basically licenced the state to do anything it pleased. How did it happen so fast ? Well, in the first place, we are told that society sometimes has an overriding interest in my conduct. The whole society ? Where does that stop ?

Second, we are told that the word ‘harm’ is not clear enough. Apparently some people don’t know what an aggression is. For instance, we are told, there might be certain actions that do not physically harm anyone, and actions that you do in private, yet because they’re… immoral (huh?) they’re…public. What ? Is this book for real ? I know it’s late and all but…

After saying that some things you do in the privacy of your own home, and which do not involve physical harm on anyone, can still have a public dimension – because it’s immoral – and therefore, are still liable to be controlled, we are treated to an additionnal mutilation. Actually, when Mill says you can’t harm someone else, and coercion can be used to stop you, you can also include harming someone else’s interests. First it was ‘Do not touch me’ then it began ‘Do not make me lose money.’ Or something like that. I have to guess, because interest is such a vague word, and we love vagueness when we talk about law.

So, on account of protecting the interests of others, and of protecting morality, or something, the state leaves individuals free to advance their interests in certain areas, but not in others. Basically, then, the state just does whatever the fuck it wants, and says it’s for your own good. Please do notice how ludicrous this all is. Poor S had to endure bullshit like this for years.

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