I am grateful to Asher Honickman for his engaging and thought-provoking review of my book, Ecolawgic: The Logic of Ecosystems and the Rule of Law. I expected nothing less: Honickman was one of the sharpest and most engaging students in the property class that he mentions having taken with me in his first year of law school.
In this comment, I will focus on one of Honickman’s arguments that lies at the heart of the dispute not just between him and me but between two competing schools of thought, one which could be called “utilitarian conservative” and the other “principled libertarian”.
The libertarian position is that there is only one legitimate legal rule: no coercion. The basic proposition is that no one, including the state, may physically coerce a competent adult other than to prohibit that adult from coercing others, or to punish them for doing so. It has been described as a non-aggression principle, as the prohibition of force between people, as the absence of physical interference, or as I do in Ecolawgic, as the autonomy to transact in markets. (No doubt the rule’s meaning and breadth is subject to debate but that is not the question at issue here.)
Others do not agree. Utilitarian conservatives but also commentators from a wide spectrum of philosophical persuasions object that there is nothing uniquely legitimate, special, objective or innate about this rule as compared to all the other possible rules that might exist. That objection is to be expected, as the one thing these other persuasions share is a desire for laws that seek to achieve certain societal ends (although of course they disagree about what those ends should be).
In Ecolawgic, I attempt to posit the libertarian position by applying the logic of ecosystems and markets. I argue the proposition that the law should reflect what is good, moral, or desirable is a mirage because moral values and public policy goals are merely subjective preferences whose validity cannot be proven. Legal instrumentalism is thus nothing more than the imposition of subjective preferences using the coercive power of the state.
In his review, Honickman defends the project of legal instrumentalism. Admirably, he accepts the proposition that moral values and policy goals are subjective preferences. However, he does not agree that this makes instrumentalism illegitimate. “Yes,” he writes, “Professor Pardy is absolutely correct that legislative instrumentalism is replete with “preferences,” but this does not, in and of itself, invalidate the legitimacy of making law based on those preferences.”
Honickman objects that the “autonomy” or “no force” rule is just a preference too.
We can agree that [preferences for consent over coercion and commerce over violence] are all but universal, but that does not make them objectively true in a syllogistic sense. The vast majority of people may agree that a market governed by law is a better means of regulating individual conduct than coercive violence; but I suspect a warlord in a failed state would disagree and vote in favour of violence and intimidation.
He is correct. While markets operate according to their own immutable rules independent of state design and moral value, a law that prohibits violence is indeed a preference. Why then can it claim a status that all the other possible rules cannot?
The answer is not that the rule is objectively correct in any moral or utilitarian sense, but that it is the only rule that can be enforced with universal consent. Some will consent to the rule itself. Others may consent to the premise of a system under which the rule is created and enforced such that they are foreclosed from objecting to it.
Imagine that the following choice is put before every citizen: Do you wish to live in a society where might is right, or in a society where coercion is prohibited? Or, put in terms of ecosystems and markets, do you wish to fight or to trade? Some will pick one and some the other. (As Honickman observes, more are likely to choose the latter than the former, but that does not matter. It is not a vote.) Those who choose the rule prohibiting coercion voluntarily submit themselves to it and its corollaries. For these people, the rule is legitimate because they have chosen to live under it.
Those who reject the rule reject the proposition that coercion is categorically wrong. Might is right, coercion is acceptable and anything goes, they say. Consider Honickman’s warlord, for example, who prefers a world governed by force and intimidation. Imagine that under such circumstances the state creates and enforces a rule that prohibits the use of force. These people can make no complaint about the legitimacy of that rule because, after all, might is right. The warlord might well attempt to resist with force, but the state can wield its power to maintain the peace if it is able. The state thus acts in accordance with the choice these people have made: the rule is legitimate because the state has might and might is right.
Some of the people who reject the “no coercion” rule may say that they reject a categorical prohibition on the use of force, but believe that its use is appropriate to achieve certain select aims. They may cite a wide variety of social goals that would justify coercion, such as redistributing wealth, protecting people from the hazards of cycling by making them wear helmets, or prohibiting immoral or dangerous activities such as taking narcotics. They might suggest that the use of force in many other situations is, indeed, something that they do not agree with and would want to have prohibited.
However, no such middle ground is possible. These people would like to reserve the use of force to achieve their own subjective preferences. They wish to use state power to bend the will of their fellow citizens who do not agree. That is akin to declaring war on their neighbours. Although they would claim otherwise, their desire to use force selectively is to assert, like the warlord, that might is right. Therefore, they give the state their consent to legitimately create any law that it has the might to enforce.
Therefore, there is only one legitimate rule: no coercion. Nothing else has universal justification. All other rules impose arbitrary restrictions upon people who have not consented.
For a longer treatment on this theme, see my article forthcoming in the Dalhousie Law Journal, The Only Legitimate Rule; and the review of Ecolawgic by Professor Jason MacLean to which the article is responding.
I hope to address other issues raised by Honickman’s review in future posts, but first we will see if he has things to say in response.
Bruce Pardy is Professor of Law at Queen’s University. He has written extensively on a wide range of legal topics, taught at law schools in Canada, the United States and New Zealand, and practiced litigation at Borden Ladner Gervais LLP in Toronto. Recently he retired from the Ontario Environmental Review Tribunal where he sat for almost a decade as an adjudicator and mediator.