A Brief Review of “The Constitution of No Authority” by Lysander Spooner
Originally Posted at the Liberating Minds forum on Fri Mar 06, 2009
As much as I agree with Spooner’s analysis of the state’s basic nature, this quote does not really establish anything pertinent with respect to the question of ‘authority’. The coercive nature of the State (and its contrast with private contract law) are not really in dispute. His entire argument rest on citing a ‘natural’ right or rights.
Hume and Anthony de Jasay’s work on law and custom influenced my critique of Spooner, as did many natural law critiques such as L.A. Rollins’ The Myth of Natural Rights.
Summary of Spooner’s Argument
In No Treason (among other works) Spooner critiques governments for failing to have a contractual claim to its property-interference. For him, Men have a natural right (a claim) to be treated according to a contract law-tort system. As no one has contractually assumed an obligation to the State, the State has no claim against them. Property violation or threats by the state, for want of a contract establishing such a right for the State, must then be torts (forbidden acts). I will argue that he fails to demonstrate that States are not legitimate and also fails to establish a coherent position for his critiques. I will do so by examining what I understand to be the foundation of his anti-state position. I will primarily refer to No Treason: The Constitution of No Authority, as I believe it best summarizes his basic anti-state position. I have not found remedies for the problems I cite here in his major essays. I have chosen not to cite or quote Spooner as No Treason and most of his other works are widely available, brief and eminently readable, and since that would take more effort.
Principle Premises and Arguments of Spooner
1) The existence of rights.
2) The nature of such ‘rights’ as natural.
3) The identification of such rights as tort and contract law.
4) The supposition that tort/contract law applies to States.
In reply to his premises
1) Rights are the opposite side of duties. If one person has a right to something, someone else has an obligation to provide it to him. Yet, in contract law, rights and duties are only established by contract.
2) ‘Natural rights’ is a further deepening of the hole. As I have argued elsewhere, it is literally false to claim that humans have a ‘nature’, since they are all distinct entities with (at best) some commonalities. That he views these duties as ‘natural’ Spooner implies that such rights and duties are inherent, not a product of custom, intuition or statute but inherently binding. Thus Spooner is here making a claim that people have a duty to those they have never made any agreement with, and others consequentially have claims against such persons; and that a person can not choose to ‘opt out’ of such duties, bound eternally regardless of his own preferences, aims and agreements. This directly contradicts his central thesis, that men have no duty to others (and consequentially others have no rights against them) unless they voluntarily agree to them. Spooner at no point clarifies or defends his position on ‘rights’. As I consider Spooner quite obviously intelligent, and since he had a considerable knowledge of law, I find it hard to believed he was unaware of what a ‘right’ was. Yet he does not differentiate his use of ‘right’ from contract law, nor imply that any such difference exists. He does not defend the assertion that ‘rights’ – contractual or of some other variety – can be anything but contractual obligations, and does not explain why such rights are ‘natural’. He does not even explain what he means by ‘natural’. He does not establish why other possible rights – customary, statutory, religious or merely asserted – are not viable alternatives to ‘natural’ rights.
3) Spooner identifies rights (claims and obligations) with tort and contract law. This is problematic. Torts are, by definition, prohibited. What sense does it make to say that someone has an obligation not to do what is prohibited? This is either nonsensical or redundant. And to assert that one has a ‘right’ to have others obey contract law and others have a duty not to violate it is just as redundant and nonsensical. In contract law, a right is established by contract, and corresponding duties are taken up by another party. As I have pointed out, this is precisely what rights are. He essentially says that men have a contractual claim to contractually establish rights, and other men have a contractual duty to contractually assume duties. What does that even mean? Not only are these identifications nonsensical and repetitive, the rights which supposedly grant voluntary rights are called ‘natural’, IE involuntary and automatic. What sort of beast is a positive claim to only be bound by contractually assumed positive claims? Spooner does not establish why his ‘natural rights’ are contract and tort law. Given the historical differences in contract and tort law, why the Anglo-Germanic variety? Why not Roman, Babylonian, 5th century Chinese or Mosaic laws? Democratic ‘rights’? Why are natural rights akin to any specific legal tradition? Unfortunately, Spooner does not defend his selection of jurisprudence are ‘naturally’ rights nor instruct us on why or why not other possible legal traditions are rejected.
4) Although Spooner presents rights as virtually identical with the practice of contract and tort law, he nonetheless does not stay consistent here. Where? Precisely in his insistence that the same rules apply to everyone. For Spooner, contract and tort law apply equally to all individuals regardless of what other characteristics they have. But this is not so. Contract and tort law have always recognized the legitimacy of special institutions such as States and religious authorities. Unlimited state authority has not typically been defended by Anglo-Germanic common law, but the basic functions of the state (raising revenue, raising armies, assuming certain prerogatives in the conduct of civil society) are taken as a given. It has never been illegal to be the king, even when kings did not have a hand in legislative and court systems. Typically what is demanded is that certain forms and customs are followed when the State, Church or other entity of ‘Status’ engages its prerogative. Exemption from such prerogatives, properly conducted, is not recognized simply because no personal contract exists or because (conducted by others) they would be considered a tort.
Why does Spooner follow Anglo-Germanic common law so rigorously, using its procedures (signature, for example) as demonstrative arguments, yet deny the existence and propriety of status-based entities? He does not give reason for this departure from Common-Law. He does not even seem to acknowledge that it exists. But he must be aware of Status as a principle and practice in common law, for it is in fact the target of his criticism. But before he can use common law to argue against Status, he must explain why Status in common law is invalid.
If he is not basing his construction of natural rights directly on common (tort/contract) law, he does not indicate what source he is using. And if he does have something in mind other than Common Law, how is it that arguments identical to what would be deployed in the case of (partial) contract and tort law are still valid outside of actual common law? In other words, if his arguments are not based on common law but another principle why is it that these pseudo-common law standards are valid?
Spooner asserts that all men have a natural and automatic (non-contractual) right to be exempt from all rights not established by contract. Consequentially, someone else (whom?) must have a duty to exempt all men from rights not established by contract. This is self-contradictory.
He asserts that men have a right not to have forbidden things done to them (torts), consequentially other men must have a duty not to do forbidden things. This is simply redundant.
Deploying these ‘rights’ against the State, Spooner uses the principles of contract law to demonstrate that men have not formed a contract with the state and thus the state has no right against him, or he a duty towards it. But the existence of non-contractual natural rights itself contradicts contract law. If rights are created by contract then no such rights exist, and if such rights exist they must (to be consistent) demonstrate an exception in the case of ‘natural rights’.
In addition, despite his use of contract and tort law as arguments against the State, he ignores the tradition, practice and often formal principle of Status; IE the existence of entities with special prerogatives which exempt them from normal considerations of tort and contract law. He does not explain why this exemption is invalid, especially problematic since he is apparently commited to at least one exception (natural rights). His position entails that natural and automatic claims and obligations which exist regardless of contract, whose defense does not involve tortious action, yet whose violation does involve tortious action. But how is this any different than Status claims, specifically those of the State? The State affirms non-contractual obligations by others, and non-contractual claims for itself. Within its prerogatives defense of such non-contractual claims are not considered tortious, while violation against them is considered tortious.
Going on to use his reformulated contract-law which men have ‘natural right’ to he ‘proves’ that the State is illegitimate by pointing out its nonconformity with said law. Status/Prerogatives are denied for everyone but ghostly ‘natural rights’, and then Spooner claims he has ‘proven’ that State prerogatives do not exist, and consequentially States violate ‘natural rights’. This is simple begging the question.
Spooner fails to present a consistent argument, does not justify his premises and does not even acknowledge the apparent contradictions or dubiously meaningful statements. If he used the standard definitions he contradicts himself. If he uses alternative definitions, he does not share them with us. Neither does he reference any other philosopher who might provide such answers. In any case, Spooner’s No Treason fails in its central claim of State illegitimacy. This failure is a surprisingly amateur one for a man who possessed such erudition.
To treat Spooner’s legitimacy arguments (as well as those of Rothbard, Rand, Locke) as though they were obviously true shows a want of rigor in reasoning, as well as ignorance of the field of political philosophy, ethics, meta-ethics and jurisprudence. It’s no surprise that few people take their ethics and political philosophy seriously. Almost any philosopher perceived as sufficiently ‘libertarian’ will find adherents, whatever glaring faults their actual ideas may have. Worse than this, many libertarians will use mutually incompatible philosophical positions. This kind of self-undermining is what makes mainstream economics a laughingstock to libertarians, and it would be wise for people who promote some kind of libertarianism to avoid duplicating it.