Conservatives and some other stripes of political thinkers have placed great emphasis on the importance of norms in a society. It is not just the law that matters. It is the norms that operate in conjunction with the law. The same thing, of course, happens in other areas. Recently, the Golden State Warriors became NBA champions and by some measures they may have been the best team of all time. But I regard the team as having been formed in an illegitimate way, through the inappropriate actions of Kevin Durant, even though his actions were perfectly in accord with NBA rules. At…
This year would have been Bruno Leoni’s 101st birthday but for his tragically early death in 1967. Leoni was an Italian lawyer cum academic who was one of Europe’s leading classical liberal thinkers in the post-War era. Friend to the leading classical liberals of the age—counting Hayek, Buchanan, and Alchian as friends—Leoni was not only a pioneer of law and economics thinking but also an early adopter of public choice theory.
Ilya Somin has posted an essay at Volokh that narrows that gap between our views on the source of the moral obligation to obey the law—I certainly agree, for example, that there are exigent circumstances in which one might be not merely entitled but obliged to disobey—but our underlying disagreement persists: whether the calculation itself is an individual or a political one.
Here and at Volokh, Ilya Somin and Mike Rappaport have been conducting a fruitful exchange over the extent of individuals’ moral obligation to obey the law, but the debate should not obscure the deeper and important philosophical ground on which they apparently agree: a shared assumption that the duty arises from something like an individual utility function. Their dispute seems to pertain to whether the individual should deploy his or her moral calculus at the personal (Somin) or systemic (Rappaport) level. The tougher question is whether any society so conceived and so dedicated—namely, one in which individuals calculate their moral obligation to obey the law as atomized individuals—can long endure.
I've made several posts the past few weeks to Liberty Fund's upcoming Constitution Day Symposium on federalism. Regarding this important topic, our Online Library of Liberty has the deepest bench of online resources for further reading and study. Enjoy! So the current Liberty Law Talk is a discussion with Eric Mack on Friedrich Hayek's great trilogy Law, Legislation and Liberty. If you haven't yet waded into all three volumes, then this podcast is a great introduction. For our feature review essay this week, Richard Gamble evaluates John Lukacs' latest effort, History and the Human Condition. Gamble observes that Lukacs' work demands humility…
The number of contradictory positions associated with the words “liberal” and “liberalism” have led some to conclude that such expressions are now so unstable in their meaning that they lack sufficient descriptive power of any lasting significance. Of course, the same could be said of terms used to describe most modern political positions, including “conservatism” and “socialism.” Liberalism, however, seems particularly amorphous inasmuch as the phrase is associated with figures as apparently different in their starting points and conclusions such as Friedrich Hayek and John Rawls, but also David Hume and Immanuel Kant.
Or is it? In his new book Free Market Fairness, the political philosopher John Tomasi challenges and seeks to overcome some of the internal divisions among those who ascribe to the liberal nomenclature. Rather than attempting a synthesis of competing schools of liberal thought, Tomasi outlines what he is very careful to specify as a “hybrid” (87) political theory that draws upon classical liberalism and libertarianism on the one hand, and what he calls high or left liberalism on the other. Tomasi does not seek to somehow ground classical liberal institutions on the basis of left liberal moral imperatives, or vice-versa. Instead he argues for what he calls market democracy as a “justificatory hybrid . . . which combines insights from the classical and liberal traditions at the level of moral foundations” (95).