The Depoliticization of Law
Theoretical Inquiries in Law, Forthcoming
28 Pages Posted: 23 May 2007 Last revised: 14 Oct 2007
Libertarian philosophers of law often write as though law is morally legitimate only if grounded in individual consent. They assume that unless law springs from some act of agreement, some hypothetical or actual social contract by which individuals consent to be bound, it is nothing more than force. On this view, law is either a legitimate mechanism of social ordering that is consistent with respect for individual autonomy or an illegitimate mechanism of coercion by which some human beings are subjected to the will of others.
I believe this is a false dilemma. Law is rarely, if ever, grounded in consent. This does not imply, however, that law necessarily gives some individuals command over others. There is a third possibility. Law can arise through a process of unplanned evolution. It can be a product of human action, but not the execution of any human design. In such a case, those subject to law are indeed bound, but not by the will of any identifiable human beings. Although law is inherently coercive, it is not inherently a vehicle for domination. To the extent that the ideal of the rule of law consists in a vision of a society governed by laws but not men, this conception of law places the ideal within reach.
In this article, I argue for this third possibility; for a society governed by law that evolves from human interaction without the conscious guidance of any particular human intelligence. I begin, in Part II, by clarifying the terminology I intend to employ in making my case. In Part III, I identify and distinguish four types of law: politicized law, privatized law, depoliticized law, and consent-based law. In Part IV, I argue that neither politicized law nor privatized law is consistent with a society governed by the rule of law. Finally, In Part V, I argue that depoliticized law is consistent with the rule of law and that a legal system consisting in exclusively depoliticized law can function effectively in the contemporary environment. I close without venturing an opinion on the viability or desirability of a system of exclusively consent-based law, leaving that as an open question to be explored on another day.
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