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A call to embrace jural dualism
Abstract
This article explores concepts under a rubric termed ‘jural’, the meaning of which is differentiated from ‘legal’. Within the conceptualisation of the modern nation state, there are two categories of jural relationships. In the first, both parties have equal jural standing (equal–equal), as between neighbours. In the second jural relationship (superior–inferior), one party has standing as a special jural player, essentially the governor. The jural superior wields the coercive powers of government. Human beings, we argue, are predisposed to folding this jural superior back into the equal–equal relationship, thus notionally collapsing two relationships back to one, or collapsing from jural dualism into jural monism. Two varieties of the tendency stand out, namely collectivist thinking that sees government as a set of rules and arrangements arrived at voluntarily, and Rothbardian libertarianism that sees government as a criminal organisation and proposes its elimination. But, beyond those two varieties, we see traces and tinctures of the tendency towards jural monism. We call for a conscious embrace of jural dualism.
In the first edition of Adam Smith's Wealth of Nations, published in London in 1776, the ‘by the same author’ list is presented in a very unusual place: directly opposite the table of contents. That placement suggests a continuity and unity in Smith's published works. A photograph provides a touchstone to discuss: (a) the Language essay, (b) the full title of The Theory of Moral Sentiments, and (c) Wealth of Nations under the ethical umbrella of Moral Sentiments.
On regular issues of policy reform—presupposing a stable integrated polity— Hume, Smith, and Burke were liberal in the original political meaning of “liberal.” Thus, on policy reform, although they accorded the status quo a certain presumption (as any reasonable person must), the more distinctive feature is that they maintained (even propounded, most plainly in Smith's case) a presumption of liberty in matters of policy reform. But we need another conceptualization that treats their attitudes about establishing, reforming, and securing the wider structure of political institutions, political procedure, and political culture and character—matters of polity reformation. On polity reformation, they showed sensibilities for which “conservative” is apt (though such conservatism was not otherwise purely neutral). Hume, Smith, and Burke were basically in agreement in the matters treated here. They are polity conservatives. The article develops the two conceptualizations—policy reform and polity reformation—, an understanding of “liberal” applicable to policy reform, and an understanding of “conservative” (namely, a heavy presumption of the status quo) that may be applied to policy reform and to polity reformation. If we code the three thinkers as PLPC (policy liberals and polity conservatives), we may put the matter this way: It would be meaningful but wrong to code them instead PCPC (policy conservatives and polity conservatives). I call their outlook conservative liberalism. I deal disproportionately with Burke, to tussle with two sets of imagined interlocutors, one on Burke as liberal, and the other on Burkean insight on polity reformation.
Folk economics is the intuitive economics of untrained people. It is concerned with distribution, and does not allow for or understand incentives. Folk economic notions evolved in our ancestors in circumstances where there was little in the way of specialization, division of labor, capital investment, or economic growth. It can explain the beliefs of naive individuals regarding matters such as international trade, labor economics, law and economics, and industrial organization. It is important that voters understand economic principles. Economists would do a better job of persuading others and of teaching if we paid explicit attention to folk economics. Because untrained individuals do not fully understand gains from trade, training in economics is likely to improve welfare by increasing the number of trading opportunities. There is evidence that this is in fact true.
Our understanding of the evolution of human behavior has grown enormously over the past few decades, and an increasing number of behavioral and social scientists are making use of evolutionary theory in their work to shed light on issues ranging from marriage and parenting to the study of mental illness. The success of this research program is threatened, however, by its lack of a serious role for the concept of culture. At the same time, cultural anthropology has taken great strides toward an interpretive and humanistic understanding of the role of culture in human affairs; but it is impoverished by its failure to appreciate the insights provided by evolutionary biology. In an effort to correct these twin problems, this book deals with such key issues as how culture is best defined, how it influences human behavior, and the limited but important role of cultural relativism, pointing the way toward a scientific study of human behavior that is at once evolutionary and cultural. (PsycINFO Database Record (c) 2012 APA, all rights reserved)
"Arguing that neither the sciences nor the humanities synthesizes a full account of property, the book offers a cross-disciplinary compromise that is sure to be controversial: Property is a universal and uniquely human custom. Integrating cognitive linguistics with philosophy of property and a fresh look at property disputes in the common law, the book makes the case that symbolic-thinking humans locate the meaning of property within a thing. That is, all human beings and only human beings have property in things, and at its core, property rests on custom, not rights. Such an alternative to conventional thinking contends that the origins of property lie not in food, mates, territory, or land, but in the very human act of creating, with symbolic thought, something new that did not previously exist."
America’s legal system harbors serious, widespread injustices. Many defendants are sent to prison for nonviolent offenses, including many victimless crimes. Convicts often serve draconian sentences in crowded prisons rife with abuse. Almost all defendants are convicted without trial because prosecutors threaten defendants with drastically higher sentences if they request a trial. Most Americans are terrified of encountering any kind of legal trouble, knowing that both civil and criminal courts are extremely slow, unreliable, and expensive to use. This book explores the largest injustices in the legal system and what can be done about them. Besides proposing institutional reforms, the author argues that prosecutors, judges, lawyers, and jury members ought to place justice before the law – for example, by refusing to enforce unjust laws or impose unjust sentences. Issues addressed include:
· The philosophical basis for judgments about rights and justice
· The problems of overcriminalization and mass incarceration
· Abuse of power by police and prosecutors
· The injustice of plea bargaining
· The appropriateness of jury nullification
· The authority of the law, or the lack thereof
Justice Before the Law is essential reading for everyone interested in legal ethics, the rule of law, and criminal justice. It is also ideal for students of legal philosophy.
This major contribution to the history of philosophy provides the most comprehensive guide to modern natural law theory available, sets out the full background to liberal ideas of rights and contractarianism, and offers an extensive study of the Scottish Enlightenment. The time span covered is considerable: from the natural law theories of Grotius and Suarez in the early seventeenth century to the American Revolution and the beginnings of utilitarianism. After a detailed survey of modern natural law theory, the book focuses on the Scottish Enlightenment and its European and American connections. Knud Haakonssen explains the relationship between natural law and civic humanist republicanism, and he shows the relevance of these ideas for the understanding of David Hume and Adam Smith. The result is a completely revised background to modern ideas of liberalism and communitarianism.
What is property, and why does our species happen to have it? The Property Species explores how Homo sapiens acquires, perceives, and knows the custom of property, and why it might be relevant for understanding how property works in the twenty-first century. Arguing from some hard-to-dispute facts that neither the natural sciences nor the humanities—nor the social sciences squarely in the middle—are synthesizing a full account of property, this book offers a cross-disciplinary compromise that is sure to be controversial: All human beings and only human beings have property in things, and at its core, property rests on custom, not rights. Such an alternative to conventional thinking contends that the origins of property lie not in food, mates, territory, or land, but in the very human act of creating, with symbolic thought, something new that did not previously exist. Integrating cognitive linguistics with the philosophy of property and a fresh look at property disputes in the common law, this book makes the case that symbolic-thinking humans locate the meaning of property within a thing. The provocative implications are that property—not property rights—is an inherent fundamental principle of economics, and that legal realists and the bundle-of-sticks metaphor are wrong about the facts regarding property. Written by an economist who marvels at the natural history of humankind, the book is essential reading for experts and any reader who has wondered why people claim things as “Mine!,” and what that means for our humanity.
This essay examines the development of the major themes in the natural law account of property, and of the conceptions of social life and moral action on which they rely, from Hugo Grotius to David Hume. In the opening two chapters, the two main variants of modern n a tu ra l law theory, those of Grotius and Pufendorf, are explained in some detail. Their understanding of natural law, as a science of morals grounded in human nature, is spelled out, and it is shown how this results in an understanding of property relations as a natural response to the changes in human circumstances wrought by increasing sophistication in human social life. It is a natural response because it reflects the requirements of human nature, such reflection being shown by the fact th a t it arises necessarily, through peaceful processes, from the recognition of the elemental moral realm of what is “one’s own” . In this sense property has a natural history; but it is also shown th a t, for these theories, the division between natural history and actual history is not sufficiently clearly drawn, an inadequacy which is well illustrated by problems in the account of the place of slavery in the account of property. But Pufendorf, at least, recognizes th a t the problem of slavery can be reduced if the principal incentive to voluntary enslavement, material necessity, can itself be overcome. In this way the problem of slavery can have an economic solution. By carefully examining the implications of the basic notion of “one’s own” , which, following English practice, he calls property in one’s person, Locke concludes both that slavery is always unacceptable (is unnatural) and th a t the origin of property in no way depends on consent. Rather, property is shown to be the inevitable consequence of human self-preserving action in a world given to us by God. Neither does material necessity provide a reason for enslavement: on the one hand, the right of charity of the poor against the surplus of the wealthy makes enslavement an avoidable option for the individual; and on the other, the productive power of improving labour is so great th a t, where a system of private property is established which secures the fruits of their industry to the industrious, necessity itself (and thereby slavery also) becomes avoidable for a whole society, by making even the worst off wealthier than the richest in a primitive economy. Thus the question of property undergoes a significant shift. The concern of Locke’s successors with political economy, and the manner in which this concern modifies their interest in slavery and necessity as serious problems for society shows the extent to which Locke’s conclusions win the day. The question of what it is to have a social theory which is grounded in human nature becomes very pressing, however, because of difficulties perceived to be generated by Lockean (and, more generally, all “self-love” ) theories of human motivation. Such theories were perceived as compromising the natural law stress on the naturalness of human social life. The issue hinges on the nature of obligation. Hutcheson (and, following him, Hume) defends an account of human motivation which allocates a central role to impartial benevolence, and which thereby offers an understanding of moral obligation independent of theological commitments. Hutcheson’s programme runs into difficulties in its account of property, however, stressing the necessity of strict rule-following while at the same time providing general principles which threaten it. Hume’s account of the source of our obligation to respect the rules of property (the cornerstone of justice) is explained as an attempt to overcome this tension, by adapting some Pufendorfian distinctions to account for different types of moral obligation, grounded in different aspects of human sociability. So, despite some well established assumptions to the contrary, Hume can be recognized to be an important contributor to the natural law tradition. Together, he and Hutcheson pave the way for the more complete critical natural history of Adam Smith.
The state is often ascribed a special sort of authority, one that obliges citizens to obey its commands and entitles the state to enforce those commands through threats of violence. This book argues that this notion is a moral illusion: no one has ever possessed that sort of authority.
Today's ownership of land derives from the lineage of past ownership, rooted in recognitions based on principles like those that make self-ownership natural. These liberal principles reject the idea that in a time long ago the king or 'the people' somehow established ownership of the entire area that now constitutes a country. Liberalism holds that either no substructure exists, or if one does, such substructure is unowned, like the stratosphere. Hence, there is no owner-host saying 'Conform to my rules or get off my substructure.' Although conflicts arise between competing sets of focal points, the Smithian view remains and stands firm. Decades before the abolition of the slave trade in the British Empire in 1807 and the abolition of slavery in 1833, Smith described slave traders as 'wretches who possess the virtues neither of the countries which they come from, nor of those which they go to, and whose levity, brutality, and baseness, so justly expose them to the contempt of the vanquished'.
In the famous dedication of his Discourse on the Origin of Inequality to the Republic of Geneva, Jean-Jacques Rousseau drew a vivid picture of his father sitting at his watchmaker's bench. "I see him still, living by the work of his hands, and feeding his soul on the sublimest truths. I see the works of Tacitus, Plutarch, and Grotius, lying before him in the midst of the tools of his trade. At his side stands his dear son, receiving, alas with too little profit, the tender instruction of the best of fathers..." Rousseau's reminiscence is testimony to the authority which Grotius's De Iure Belli ac Pacis had come to possess in the century since it was first published in 1625; in the eyes of both father and son, the book had the same standing as the great works of classical antiquity. Rousseau was to devote much of his life to a complicated and subtle repudiation of Grotius, but he never lost his sense of the book's importance, describing Grotius in Emile as "the master of all the savants" in political theory (though he added that, nevertheless, he "is but a child, and, what is worse, a dishonest child," and that "true political theory is yet to appear, and it is to be presumed that it never will")..
This Liberty Fund publication of Philosophiae Moralis Institutio Compendiaria is a parallel edition of the English and Latin versions of a book designed by Hutcheson for use in the classroom. General Editor Knud Haakonssen remarks that "Hutcheson's Institutio was written as a textbook for university students and it therefore covers a curriculum which has an institutional background in his own university, Glasgow. This was a curriculum crucially influenced by Hutcheson's predecessor Gershom Carmichael, and at its center was modern natural jurisprudence as systematized by Grotius, Pufendorf, and others. . . . The Institutio is the first major [published] attempt by Hutcheson to deal with natural law on his own terms. . . . It therefore encapsulates the axis of natural law and Scottish Enlightenment ideas, which so many other thinkers, including Adam Smith, worked with in their different ways. It is of great significance that this work issued from the class in which Smith sat as a student." Editor Luigi Turco comments that "the aim of the text was twofold: on one hand, to put forward an optimistic view of God, human nature, and the harmony of the universe; on the other hand, to provide students with the knowledge of natural and civil law required by the university curriculum. Hutcheson starts from Pufendorf's De officio hominis et civis (itself an abridgment of his De jure naturae et gentium)-the text that was most widely read within Protestant universities-but modifies its moral foundations."Francis Hutcheson was a crucial link between the continental European natural law tradition and the emerging Scottish Enlightenment. Hence, he is a pivotal figure in the Natural Law and Enlightenment Classics series. A contemporary of Lord Kames and George Turnbull, an acquaintance of David Hume, and the teacher of Adam Smith, Hutcheson was arguably the leading figure in making Scotland distinctive within the general European Enlightenment.Luigi Turco is Professor of Philosophy at the University of Bologna.Knud Haakonssen is Professor of Intellectual History and Director of the Centre for Intellectual History at the University of Sussex, England.
This paper argues that the founding fathers of the tradition of Scottish Enlightenment natural jurisprudence, Gersholm Carmichael (1672–1729) and Francis Hutcheson (1694–1746), articulated a view of rights that is pertinent to the contemporary dominance of the language of rights. Maintaining a metaphysical foundation for rights while drawing upon the early-modern Protestant natural law tradition, their conception of rights is more significantly indebted to the pre-modern scholastic natural law tradition than often realized. This is illustrated by exploring some of the background to their respective theories of rights, detailing the precise reasoning that Carmichael and Hutcheson brought to bear upon their conception of rights, and then exploring their application of their understanding of rights to the question of property.
In thinking and talking about rights, including property rights, it seems natural to put the argument in either moral or legal terms. From the former viewpoint, rights are part of a description of what actions are right or wrong. The fact that I have a right to do something is an argument, although not necessarily a sufficient argument, that someone who prevents me from doing it is acting wrongly.
Of the Division of LabourOf the Principle which Gives Occasion to the Division of LabourOf the Natural and Market Price of CommoditiesNote
Many modern writers have criticized the notion that property consists of a bundle of rights in some determinate thing as a weak conception that invites increased government control over private property, especially real estate. This article rejects that conception for the following reasons. First, the notion of property as a bundle of rights long antedates the Progressive era, when it lay at the center of both Roman and common law views of property. Second, the bundle-of-rights theory does not imply that private property has no determinate meaning. To the contrary, traditional systems of private property all had a coherent bundle of rights that included exclusive possession, use, development and disposition of property that belonged to the original owner who acquired by first possession. Thereafter, the division of property rights created by voluntary transactions, such as leases or mortgages, may have made it somewhat more difficult to identify "the owner," philosophically. But it had the far greater advantage of allowing for gains from trade. The use of this system, moreover, implies strong protection against state control, so long as it is understood that the state must pay for each stick in the bundle that it takes and is never allowed to say that it can take one or more sticks for free so long as the original owner keeps some residual sticks.
In October 2006, the Economic Policy Institute released a “Raise the Minimum Wage†statement signed by more than 650 individuals. Using an open-ended, non-anonymous questionnaire, we asked the signatories to explain their thinking on the issue. The questionnaire asked about the specific mechanisms at work, possible downsides, and whether the minimum wage violates liberty. Ninety-five participated. This article reports the responses. It also summarizes findings from minimum-wage surveys since 1976.
Dr. Hayek is world-famous for his valuable contributions to the field of economics as well as to the disciplines of philosophy and politics. This volume represents the second of Hayek's comprehensive three-part study of the relations between law and liberty. Here, Hayek expounds his conviction that he continued unexamined pursuit of "social justice" will contribute to the erosion of personal liberties and encourage the advent of totalitarianism.
This is the revised version of Peter Laslett's acclaimed edition of Two Treatises of Government, which is widely recognised as one of the classic pieces of recent scholarship in the history of ideas, read and used by students of political theory throughout the world. This 1988 edition revises Dr Laslett's second edition (1970) and includes an updated bibliography, a guide to further reading and a fully reset and revised introduction which surveys advances in Locke scholarship since publication of the second edition. In the introduction, Dr Laslett shows that the Two Treatises were not a rationalisation of the events of 1688 but rather a call for a revolution yet to come.
Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael
- G. Carmichael
Outlooks from a New Standpoint
- E. Bax
Moral Origins: The Evolution of Virtue, Altruism, and Shame
- C. Boehm
The Age of Empathy: Nature's Lessons for a Kinder Society
- F. Waal
The Science of Government in Connection with American Institutions
- J. Alden
The contending forces
- Hobhouse L.
Ethical Democracy: Essays in Social Dynamics
- J. MacDonald
Lectures on the Philosophy of Law, Designed Mainly as an Introduction to the Study of International Law
- W. Miller
The Ethics of Liberty
- M. Rothbard
For a New Liberty: The Libertarian Manifesto
- M. Rothbard