I agree with most of what Walter Williams says here, so let me churlishly focus on the bit I disagree with:
You might say, “Williams, while there are gray areas in the Constitution, the U.S. Supreme Court would never brazenly rule against clear constitutional prohibitions!” That’s nonsense. The first clause of Article 1, Section 10 mandates that “No State shall … pass any … Law impairing the Obligation of Contracts.” During the Great Depression, the U.S. Supreme Court upheld a Minnesota law that restricted the ability of banks to foreclose on overdue mortgages, thereby impairing contracts made between lender and borrower. To prevent this kind of contract impairment – routinely done under the Articles of Confederation – was precisely why the Framers added the clause.
I agree, of course, that the Supreme Court has little compunction about overriding “clear constitutional prohibitions.” But I don’t think the example Williams has chosen proves his case. To uphold the obligation of a contract does not mean to uphold whatever the contract says; otherwise contracts to sell oneself into slavery, or contracts to assassinate another person, would be legitimately enforceable. Thus contracting to do X is not by itself sufficient to incur an enforceable obligation to do X.
And as Lysander Spooner argues:
“The obligation of contracts,” here spoken of, is, of necessity, the natural obligation; for that is the only real or true obligation that any contracts can have.
The court’s decision in Home Building & Loan Association v. Blaisdell thus counts as violating the constitutional prohibition on impairing the obligation of contracts only if those contracts were legitimately enforceable under natural law. Now maybe they were and maybe they weren’t; that moral question is not my current concern. My point is simply that one cannot determine whether the court violated the constitution in this case without addressing that moral question; it’s not something that one can simply read off the words.
Many opponents of wage-labor say the standard wage-contract constitutes rental of one’s self, subject to the same critique as complete sale. I say discussion of illegitimate-in-content contracts is merely an attempt to have one’s personal preferences override a decision made by others.
I’ve implicitly spoken on lifetime indentured servitude, now to contract killing: the contract itself can be upheld while the act still prohibited. The client is guilty of solicitation of a crime, the agent is guilty of selling criminal services in addition to violating his contract.
Okay, you’ve said it, but do you have an argument for it? Or a refutation of the arguments on the other side? (Not talking about wage labour specifically.)
My own view of contracts (see here and here) depends on the case, made by Rothbard and Barnett, that contract enforcement is not a primary but has to be derivative from transfer of property titles (which rules out specific performance in service contracts).
What does upholding the contract consist in?
Off the top of my head, “upholding” something like a murder contract would mean enforcing its nonperformance clauses if any.
I believe that “Obligation” is ambiguous (“legal” obligation on the one hand and “moral” obligation on the other). If according to law there is an obligation to X, then then there is a legal obligation to X (forgive me for not more carefully articulating the use of obligation-statements). In this case, X can include virtually anything. Natural law theory is implausible as an account of the existence conditions of law.
I meant morally enforceable obligation.
Well, it was the dominant account of the existence conditions of law for most of western history, so I don’t think it can be dismissed in a sentence.
FWIW, I defend the traditional approach here.
“Well, it was the dominant account of the existence conditions of law for most of western history…”
Yes, but the classical-Christian civilization that made that possible has collapsed. (I have even seen so-called philosophers defending the murder of unborn humans!) There is now no consensus on what constitutes “natural law,” and thus no foundation for basing actual law upon such a (currently non-existent) footing.
There never was a consensus on the content of natural law. But of course there isn’t now, nor was there then, a consensus on what the positive law should be either. So appealing to disagreement over natural law as an argument against the natural law approach is a red herring.
The only legal theory that doesn’t smuggle in moral premises would be something like complete legal nihilism (call it “Jungle Law”). And under such a theory, “legal obligation” is just a label that is applied after the fact to whatever is successfully enforced by anyone with the power to get their way and get away with it, so it’s really not particularly interesting. Any interesting form of “legal obligation” depends on some ideas about what moral obligations people have.
This is silly and completely ignores basically everything Hart had to say on the topic. Perhaps you don’t agree. Perhaps you subscribe to some natural law theory or alternative account of legal positivism. But to say Hartian theories of legal obligation “is just a label that is applied after the fact” is to completely misunderstand the project.
Roderick, I will take a look at your piece. Without reading it, I am surprised to hear you say you subscribe to “traditional” natural law approach to the existence conditions of laws. I would understand more contemporary approach similar to Finnis or Mark Murphy (or perhaps Fuller), but a traditional approach that links existence/legal validity to evaluative cconcerns (e.g., Augustine, Radbruch) is a surprising view for an anarchist. It seems to me that there is a social practice, law, that is characterized by its institutionalized system of standards/norms/imperatives, etc. “Legal obligation” is simply a contextualized statement to this system denoting when certain behavior is subject to the system’s standards. This is what law actually is.
I think there’s a fairly natural fit between anarchism and legal naturalism, given the latter’s historical role in challenging existing state authority. And many of its proponents (Spooner, Andrews, Lane) have been anarchists.
To the previous link I should add this.
“I would understand more contemporary approach similar to Finnis or Mark Murphy (or perhaps Fuller), but a traditional approach that links existence/legal validity to evaluative concerns (e.g., Augustine, Radbruch) is a surprising view for an anarchist.”
fwiw, putting Finnis and Murphy together on this question suggests that you haven’t read Murphy very carefully. Finnis’ position is that unjust laws are perfectly valid laws and that sayings like lex iniusta non est lex are just ways of speaking that play on the ambiguities of the word “law.” Murphy’s view is that law is a properly understood as a natural kind concept and that an unjust law is analogous to a duck that can’t swim or to a fake diamond. Neither claims that an unjust law simply doesn’t exist, but Murphy insists that unjust laws are defective precisely as laws, whereas Finnis is happy to say that they’re legally valid as far as legal validity goes. Murphy’s view is, arguably, just a clearer restatement of the traditional view: unjust laws are defective as laws because the aim and purpose of law is to give us decisive reasons for action, and an unjust law can’t do that.
“putting Finnis and Murphy together on this question suggests that you haven’t read Murphy very carefully.”
I did not mean to suggest that they share a theory of natural law (I also included Fuller), only to suggest that there is a difference between the contemporary approach and the popular conception of classical natural law theory (many current natural law thinkers of course reject the popular interpretation of the classical natural lawyers).
“unjust laws are defective as laws because the aim and purpose of law is to give us decisive reasons for action, and an unjust law can’t do that.”
This is why I do not see the connection between anarchism and natural law theory as a theory of the nature of law (as opposed to a normative theory of law). If one takes seriously the idea that law is a social practice that exists and has existed throughout history, it is difficult for me to understand how anarchists can have this idealistic view of the nature of law. At least according to my views on anarchism, law qua law has never succeeded in providing reasons for action.
Rodderick writes “My point is simply that one cannot determine whether the court violated the constitution in this case without addressing that moral question; it’s not something that one can simply read off the words.” This seems to suggest that the Constitution as a law is somehow morally binding, somehow provides reasons for action. I do not see it that way and it seems to be at odds with anarchist thought. (I must confess that I have yet to read Rodderick’s writing on natural law, so I apologize for any confusions I may have.) Now, I agree that, in order to figure out the law on a certain constitutional issue, one cannot simply read off the words. But I disagree that one must figure out what is morally binding to figure out what the law is in a particular instance.
One thing that should be made clear. There are two separate issues in all cases that involve the interpretation and application of “the law” (1) what is the law in this case? and (2) what should a judge do? Now, legally, the judge is often required to “apply the law.” Morally, however, judges ought not to “apply the law” in many cases. This is my view at least, as derived from a positivistic legal theory.
I don’t see how on earth it suggests that. If Hitler says “kill all the virtuous people,” we can’t figure out which people his command is asking us to kill unless we investigate which people are the virtuous people. So, yeah, we would have to do moral theory to understand how to apply Hitler’s command. But in saying that I’m not remotely implying Hitler’s commands are morally binding.
“If Hitler says “kill all the virtuous people,” we can’t figure out which people his command is asking us to kill unless we investigate which people are the virtuous people.”
There are numerous issues involved regarding the interpretation of texts (e.g., is the content of the command “virtuous people” or “virtuous people according to Hitler” or “virtuous people as determined by social practice” or “virtuous people [wink wink = Jews]”) as well as the inclusive/exclusive debate regarding the conceptual status of moral terms in statutes. Also, if there is a practice among legal officials by which evaluative terms like “virtuous” or “obligation” are interpreted not by engaging in moral deliberation but by some other method (such as by asking “what would please zie leader?”), then moral deliberation is not necessary for determining the law.
But what I would like to bring up is this: suppose that this command was issued 150 years ago. In the time between the command and now, a practice among legal officials developed in which “virtuous people” came to mean “left-handed red headed males,” and this was how police officers, judges, prison officials, etc. enforced the command. On the positivist account, the law prescribing the killing of “virtuous people” now means the killing of left-handed red headed males. If you are a lawyer and a client asks you “what is the law around here regarding the status of left-handed red headed males?” and you answered that according to the law, everything is fine, then you have not provided competent legal advice. I think this is my complaint regarding the status of “Obligation of Contracts” as it is found in the constitution.
[These issues are separate from some of my earlier comments, which were directed at the sense of statements asserting “legal obligation.” This is a separate issue that was irrelevant to the content of your original post.]
I wasn’t describing legal positivism, but a form of legal nihilism (which unlike legal positivism, refrains from smuggling in moral premises).
“unlike legal positivism, refrains from smuggling in moral premises.”
How does legal positivism “smuggle in” moral premises? There are many legal posivists, Hart included, that specifically reject any connection between legal statements and moral statements (see his Essays on Bentham, esp. “Legal Duty and Obligation” and “Commands and Authoritative Reason”). And those legal positivists who disagree with Hart on this point (e.g., Joseph Raz) are quite clear that one can speak of “legal obligation” without thereby morally endorsing the laws or the legal system.
If you leave all moral premises at the door, there are no more “legal obligations” besides what people successfully enforce on one another. An unenforced “legal obligation” makes as much sense as a “legal loophole” or “the spirit of the law”. In real life, of course, people make codes and statutes etc. for a variety of reasons (it usually involves moral beliefs, so arguing against laws and the likes on moral grounds is perfectly cogent, especially once you’ve abandoned any moral attachment to written laws for their own sake), and it usually involves the expectation that it ought to be (and generally will be) successfully enforced. But motivations and expectations aside, there is only the law of the jungle.
Hume:
Well, I know that they say that, but saying that you reject any connection between legal obligation and moral obligation is not the same thing as actually giving an account of legal obligation without “smuggling in” moral principles. The point of calling it “smuggling,” after all, is to say that the importation is concealed rather than explicitly acknowledged, and it’s not uncommon, you know, for a philosopher’s arguments to tacitly rely on premises which the philosopher would not explicitly acknowledge, or would even, if asked, try to deny.
Hence my question, “how does legal positivism smuggle in moral premises?”. Simply asserting that this is so completely ignores all of the arguments to the contrary. So a theory that asserts legal obligation exists e.g., only in case of a command of sovereign (by definition backed by threats) seems devoid of any moral premises to me. Now, one can quibble with much of Austin, but I do not think he is guilty of smuggling in moral premises.
Second, I will not defend here the possibility of making statements of legal obligation that nevertheless does not thereby express moral approval of the law. I do not think arguments to the contrary are even remotely plausible. An anarchist who rejects the legal system can nevertheless state without contradiction “you have a legal obligation to obtain a license before owning/operating a barber shop.”
““you have a legal obligation to obtain a license before owning/operating a barber shop.””
But within that framework all that the sentence means, is than some group of people that by whatever method has obtained impunity) will harm or threaten to harm you (infact has already implicitly threatened you) if you don’t secure thier approval and permission before cutting someone elses hair in return for money.
If such is your position then you should find a way to say it without the word “obligation”, a word which signifies something to be done, a word which is strongly linked with moral denotations.