A Contractarian Approach to Law and Justice

Live and Let Live

William E. O'Brian Jr.

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000071610
• Edition: 1
• Topic: Economics
• Subtopic: Economic Theory
• Index: Economics

This book presents a distinctive version of a contractarian approach to law and justice. The work argues that law and justice are social norms that arise from a process of social evolution, and are binding only if and to the extent that they are mutually beneficial. It explicitly rejects accounts of law and justice that are based on morality, on the basis that morality itself is only legitimately founded on mutual advantage. But it also rejects most existing versions of contractarianism, which are based on ideas of hypothetical agreements by rational contractors, in favour of an approach that is based on actually existing social norms, but advocates critically examining these norms and discarding those that are not truly mutually beneficial.

The first half of the book develops the approach, while the second half explores some of its implications for law. It argues for a left-libertarian approach to property, an approach largely based on the common law of tort, contract and criminal law, and a rejection of most statutory law, which is based not on mutual advantage but rather on benefiting some at the expense of others. However, it ultimately recognises that there are those who want a more extensive state than this approach allows, and advocates a strong form of federalism to allow this, provided robust exit rights are provided.

The book combines political philosophy, economics and law into an approach that is broadly libertarian but distinctive in many respects. It will be of interest to scholars in all three of those disciplines.

1 Antecedents

Epicurus and other Greeks

The earliest appearance of a contractarian approach to justice that I will consider is in Plato’s Republic,¹ where Plato’s brother, Glaucon, summarises it as follows:

They say that to do wrong is naturally good, to be wronged is bad, but the suffering of injury so far exceeds in badness the good of inflicting it that when men have done wrong to each other and suffered it, and have had a taste of both, those who are unable to avoid the latter and practice the former decide that it is profitable to come to an agreement with each other neither to inflict injury nor to suffer it. As a result they begin to make laws and covenants, and the law’s command they call lawful and just. This, they say, is the origin and essence of justice; it stands between the best and the worst, the best being to do wrong without paying the penalty and the worst to be wronged without the power of revenge.

Most of the Republic consists of Plato’s attempt at demolishing this theory and instead constructing his own theory (using as usual Socrates as his mouthpiece). That attempt fails miserably, and Plato’s own theory is quasi-fascist and will appeal to very few modern readers.²

The main interesting argument against Glaucon’s theory involves the story of the Ring of Gyges, a ring that made its wearer invisible and thus able to get away with murder and other crimes. The argument is that someone who possessed this ring would have no reason to be just since he need not fear retribution. Of course, given that there is no such ring we might be willing to concede this objection, but there are other forms of impunity that are only too real, so we cannot dismiss it so lightly.

The more troubling variant of this objection is provided by a work roughly contemporaneous with Plato, Thucydides’ History of the Peloponnesian War. In Chapter XVII of this work he tells the story of an encounter between the Athenians and the Melians, inhabitants of an island that the Athenians wished to use in their war with Sparta. The Athenians attempt to convince the Melians to surrender on somewhat favourable terms by arguing that they face hopeless odds, while the Melians object that they are being treated unjustly. Thucydides presents a dialogue, probably fictional, between the two sides that is a classic example of realpolitik. Here are excerpts:³

1 I am referring to the translation by G.M.A. Grube (Plato 1974).

2 See Popper 1962.

3 Thucydides 1910, pp. 394–397.

Athenians: You know as well as we do that right, as the world goes, is only in question between equals in power; while the strong do what they can and the weak suffer what they must.

Melians: We speak as we are obliged, since you enjoin us to let right alone and talk only of interest—that you should not destroy what is our common protection, the privilege of being allowed in danger to invoke what is fair and right, and even to profit by arguments not strictly valid if they can be got to pass current. And you are as much interested in this as any, as your fall would be a signal for the heaviest vengeance, and an example for the world to meditate upon.

Athenians: Of the gods we believe, and of men we know, that by a necessary law of their nature they rule wherever they can. And it is not as if we were the first to make this law, or to act upon it when made; we found it existing before us, and shall leave it to exist forever after us; all we do is make use of it, knowing that you and everybody else, having the same power as we have, would do the same as we do. [Responding to the suggestion that the Spartans will aid the Melians, the Athenians say of the Spartans]: Of all the men we know they are the most conspicuous in considering what is agreeable honourable, and what is expedient just.

The Melians refused to bargain, and when the Athenians attacked they ultimately had to surrender, whereupon Thucydides records that the Athenians “put to death all the grown men they took, and sold the women and children for slaves.”

We will consider the merits of this issue in Chapter 4, but it captures nicely what turns out to be the main difficulty that still confronts a theory of justice based on mutual interest: how does it apply between the strong and the weak?

The greatest ancient philosopher who actually espoused the theory of justice as based on agreement for mutual advantage was Epicurus. Epicurus appears to have been a wonderful philosopher who anticipated much of what we now take to be the modern view in science: for example, he explicitly stated that the only things that exist are atoms and the void (i.e. space), and endorsed an essentially evolutionary explanation of the phenomena that we observe as resulting from random variation along with natural selection that predates Darwin by over two thousand years. Although he did not deny the existence of gods, he concluded that they had nothing to do with humanity and did not create the world, which instead arose by blind chance. This view makes the gods superfluous, and the early Christian fathers saw the atheistic implications of this view and largely suppressed his writings. This is highly unfortunate: he was almost certainly a much better philosopher than Plato, as well as an interesting human being, but we have little now to go on apart from the entry on him in Diogenes Laertius’ Lives of the Eminent Philosophers, which includes a few of his surviving works.

Much of what we now know of Epicurean philosophy is based on his Roman disciple Lucretius, whose epic poem De Rerum Natura, although also suppressed, was rediscovered in the Renaissance in time to help lead to the revival of what became modern science and in particular the rejection of Aristotle’s views about physics and causation.⁴ That poem presents an evolutionary account of the world, but more importantly of justice, the issue with which we are concerned here. Indeed, Matt Ridley’s recent, highly recommended book, The Evolution of Everything,⁵ which as its title suggests argues that essentially everything, including justice and morality, is the result of evolution, has a quote from this poem at the beginning of every chapter.

Fortunately a surviving work of Epicurus, his Principal Doctrines,⁶ includes a summary of his theory of justice, brief and cogent enough to quote in full:

31.	Natural justice is a covenant for mutual benefit, to not harm one another or be harmed.
32.	With regard to those animals that do not have the power of making a covenant to not harm one another or be harmed, there is neither justice nor injustice; similarly for those peoples who have neither the power nor the desire of making a covenant to not harm one another or be harmed.
33.	Justice does not exist in itself; instead, it is always a compact to not harm one another or be harmed, which is agreed upon by those who gather together at some time and place.
34.	Injustice is not bad in itself, but only because of the fear caused by a suspicion that you will not avoid those who are appointed to punish wrongdoing.
35.	It is impossible to be confident that you will escape detection when secretly doing something contrary to an agreement to not harm one another or be harmed, even if currently you do so countless times; for until your death you will be uncertain that you have escaped detection.
36.	In general, justice is the same for all: what is mutually advantageous among companions. But with respect to the particulars of a place or other causes, it does not follow that the same thing is just for all.
37.	Among things that are thought to be just, that which has been witnessed to bring mutual advantage among companions has the nature of justice, whether or not it is the same for everyone. But if someone legislates something whose results are not in accord with what brings mutual advantage among companions, then it does not have the nature of justice. And if what brings advantage according to justice changes, but for some time fits our basic grasp of justice, then for that time it is just, at least to the person who is not confused by empty prattle but instead looks to the facts.
38.	When circumstances have not changed and things that were thought to be just are shown to not be in accord with our basic grasp of justice, then those things were not just. But when circumstances do change and things that were just are no longer useful, then those things were just while they brought mutual advantage among companions sharing the same community; but when later they did not bring advantage, then they were not just.
39.	The person who has put together the best means for confidence about external threats is one who has become familiar with what is possible and at least not unfamiliar with what is not possible, but who has not mixed with things where even this could not be managed and who has driven away anything that is not advantageous.

There is no discussion in this brief passage of the problem of justice between non-equals, although Epicurus suggests that others not be treated as enemies. But there is no real argument as to why: perhaps it is the argument the Melians pressed unsuccessfully—that even if it was in the Athenians’ short-term interest to conquer the Melians, the rules of right and justice were in their long-term interest and should lead them to desist. In any event, Epicurus advocated a life devoted to simple pleasures, avoidance of pain, pursuit of friendship and avoidance of politics and public life generally; someone who followed his advice was unlikely to become a conqueror.⁷ He was especially critical of those who sought power, wealth or fame, all of which he believed to be “vain and empty.”⁸

4 For the story of this discovery see Greenblatt 2012.

5 Ridley 2016.

6 Epicurus 2008.

7 One US president, Thomas Jefferson, was a self-described Epicurean, and of course did not follow the advice to avoid public life.

8 Armstrong 1997.

Lucretius adds to this the argument that even the strong need justice to protect the weak because they have wives and children:⁹

Then also neighbours began to join friendship amongst themselves in their eagerness to do no hurt and suffer no violence,...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Introduction
• 1. Antecedents
• 2. Moral irrealism
• 3. A contractarian approach
• 4. The Sovereignty Principle
• 5. Sovereignty and freedom
• 6. The Principle of Cooperation
• 7. Private property
• 8. Private law
• 9. Democracy and statutory law
• 10. Federalism on Steroids
• 11. Conclusion
• Bibliography
• Index