NATURAL LAW, OR THE SCIENCE OF JUSTICE, by Lysander Spooner, New York: Libertarian Forum, 1974. 4 pp., $.10.
Respect for tradition can take the morbid form of the personally passive nostalgia buff, or it can be motivated by the high enthusiasm of a search for a morally inspiring sight of the actions and words of those who have lived before us. In most cases it is the last that makes the libertarian seek out the histories and tracts of past fighters for freedom: he wants moral fuel for today's fight. One of the most outstanding of such heroes in American history not connected with the American Revolution is Lysander Spooner. By now every libertarian is familiar with his trenchant criticism of the non-voluntary use of the U.S. Constitution as a social contract, in his book No Treason. Now Libertarian Forum has reprinted a long-dormant pamphlet, "Natural Law, Or The Science Of Justice," which was intended to be part of a longer work on that subject. It is a valuable work for libertarians, because it argues from the basis of natural law. But often the lesson to be learned from those who did not succeed in establishing liberty before us is just where they went wrong. For those of us who agree that reason and morality, better ideas, determine the course of history, it is important to see where the ideas of our predecessors went wrong, and thus were unconvincing. So it is with Spooner's tract on natural law and justice.
We are all familiar with the failure of the various theological arguments from analogy. One of them argues that since we observe laws in nature there must be a lawmaker. The reply is that this confuses two different facts and two uses of the term "law." Laws of nature are descriptions of the actions of entities in a specified context in nature. Human-made laws are prescriptions for human actions in a social context. The confusion is between descriptive and prescriptive laws. The error is the attempt to collapse the first category into the second, making it merely another example of the second, and calling God the prescriber of nature's actions. The distinction between these two kinds of law has a basis in fact. The first applies to entities which act automatically in terms of their nature and in response to their environment, entities which have no choice and which cannot be hurt. The second kind of law pertains to beings which can choose their actions, can be hurt, and can be persuaded to proper social behavior by sanctions on some of their actions.
Lysander Spooner makes the same mistake in the reverse direction. Several times he argues that justice is a natural law and needs no human legislation appended to it. He thereby attempts to collapse the human-made into the metaphysical (or, nature-made), hoping to blot the man-made justice out of existence.
But the behavior in people that would result in justice ("do harm to no man") does not occur automatically, as actions in nature (with inanimate matter) do. Humans choose, and whether by choice or accident, they can and do hurt other humans. Whatever automatic "justice" one wants to talk about in nature, justice among people is often upset and has to be restored. That is the proper subject of legislation (human-made law).
Lysander Spooner compounds this conceptual error by adding a second to it. He argues that either justice is a natural law (in which case legislation is a useless redundancy), or it is an arbitrary human imposition of the will of some people over others with no natural basis in fact.
This argument is an example in the category of special pleading called "the verbal either-or." The verbal either-or is a false dichotomy used to describe a situation which turns out to have more alternatives in reality than the ones included in the description. Karl Marx invented one which is responsible for the opposite answers of Liberals and Conservatives to the question: shall government favor the economic interests of labor or business? This ignores the libertarian alternative that government shall have no economic powers with which to favor anyone's interests.
The anarchist R.A. Childs, Jr. invented a verbal either-or, arguing that when a limited government is faced with the operation of privately-hired defense agencies within its jurisdiction, it can either leave them be and lose its claim to monopoly status over the legal use of force within its jurisdiction, or it can lose its claim to voluntarism by forcibly eliminating its competitors. This ignores the nature of a proper government's "monopoly:" it holds jurisdiction only over lands whose owners have subscribed to it as the final arbiter over the use of force and over disputes between themselves. Mr. Childs misses the fact that a proper government can allow defense agencies to operate without losing its monopoly status simply by treating their personnel as it does all other individuals: they may act as they choose until they use force against anyone who did not consent to their actions. Defensive action can be used by anyone, but the users will be held responsible to the law which has jurisdiction there.
A third historic verbal either-or was invented by Plato in his body-soul dichotomy. Today religionists claim that the soul (human consciousness) is the real "person," while reductionists argue that man is an animal (body and behavior, minus mind) much like a machine. This ignores the fact that the human person is an integration of matter and consciousness, and that it is the integration of those two that makes one the living and intelligent being that one is.
It is a shame to see Spooner, whose reputation is in the tradition of natural rights philosophers, fall victim to an error of logic with its own destructive tradition. The alternative that he overlooks in his nerve-straining effort to argue on a fundamental, basic-facts-first level is that justice cannot occur regularly among choosing beings unless they choose to construct some mutually acceptable procedure for implementing it. The evidence for the need of justice does lie in (human) nature, but because that nature includes the capacity for choice, justice will not occur automatically. To more regularly control that which exists as a potential in nature, people construct tools. The legislation that enables justice to be practiced among people in a social context is such a tool.
In fact, the need for this tool is due to limitations in the scope of nature's reaction to human actions. In nature, a person who takes an action reaps the results of its natural consequences. This is natural justice. But in a social context, the actions a person takes may fall on someone else. And, the course of nature ends once the consequences have fallen, even if they fell on someone different from the person who acted. If the receiver of the consequences did not agree to this, that is not justice. Nature has exhausted its own possibilities for justice at this point. A separate series of actions (restitution and punishment, perhaps) must be initiated by a being intelligent enough to guide them to the restoration of justice. This is human-made justice. And unless people are to be punished for actions they did not know were crimes, legislation is one form the guidance of intelligence will take.
Lysander Spooner gives us a valuable lesson in how not to argue the case for liberty from natural law. Natural law is an argument libertarianism needs. If there is a factual basis in (human) nature for justice, then there is validity in those institutions people make to achieve it. But the logical connection between the metaphysical (natural) and the human-made cannot be established by collapsing examples of one into the opposite category. Nor can the human-made be validated by obliterating it with false dichotomies.
By all means read the tract and enjoy, then work all the harder for the philosophical rigor libertarianism really needs.
Paul Beaird has a B.A. in English from California State University in Los Angeles. He is a past chairman of the Alaska Libertarian Party and is national director of Citizens for Quality in Medicine.
This article originally appeared in print under the headline "Natural Law, or the Science of Justice".