Four Sets of Nonconflicting Rules: Reply to Andrew Humphries

This communication continues the exchange on “Four Sets of Nonconflicting Rules”: The preceding pieces are:

1.     Dan Klein                    “Four Sets of Nonconflicting Rules”

2.     Torben Spaak              Comment on “Four Sets”

3.     John Cairns                 Comment on “Four Sets”

4.     Andrew Humphries    Comment on “Four Sets”

5.     Dan Klein                     Reply to Torben and John

I thank, again, Torben, John, Andrew, and Zack for this exchange.

Torben and John are law professors and veteran legal scholars. Andrew, who is replied to here, earned in 2021 an economics PhD at George Mason University, where I served as chair on his dissertation committee. Andrew and I have wrestled with problems taken up in this exchange, tag-team but sometimes against one another. Indeed, this exchange affords us the opportunity to explore differences, as well as Andrew’s influence on me.

The first 40 percent of Andrew’s Comment provides background to the conversation, quoting textual bits from Adam Smith, notably on how to understand “natural jurisprudence.” That 40 percent sits well with me. In the rest, Andrew offers several thoughts, a couple of which I shall treat.

Let me speculate on how Andrew tends to see things: I wonder whether Andrew resists the idea that a government law can be good (or estimatively just) and be a violation of commutative justice (CJ); correspondingly, whether Andrew resists the idea of a government law being good and violating the liberty principle. Also, I wonder whether Andrew resists the idea of it being proper to be an inferior ruled by a superior.  I do not resist either of those things, so if Andrew does, that spells differences between us.

In his Comment, Andrew draws on Smith’s LJ to bring out the idea that government laws that specify duties of the subject to sovereign—duties other than the same CJ duties that those subjects owe to fellow jural equals, e.g., don’t steal the magistrate’s horse—can be made precise and accurate. Here Andrew cites LJ 311, 545, and 291–95 on certain laws of treason under certain governments. Let me make two preliminary points about the precision and accuracy of such government laws, and then a main point that will then grant precision and accuracy to such laws.

First, a passage at LJ 311 is worth reproducing more fully and remarking on:

The nature of this branch of public law [pertaining to the duties of a sovereign to its subjects]…is such that we can not pretend to such precision in it as in the private laws amongst subjects, or in the other part of publick law which comprehends the duties of subjects to their sovereigns. (LJ(A) 311)

Using the following notation:

E stands for jural equal

S stands for the jural superior

i stands for a jural inferior (or subject)

→ indicates a jural duty, of one being to another

we may note that Smith here uses “private laws” for E→E duties, and “publick law” for S→i duties and i→S duties. (As stated above, it is only jural duties that we speak of with the symbol →.) Smith says here that S→i duties cannot be made as precise as either E→E duties or i→S duties. My point here is simply to note that the passage does not imply that i→S duties are (or can be made to be) as precise as E→E duties. It says that S→i duties are less precise than i→S duties.

Second, we might here consider a distinction between two different types of objects for which precision and accuracy pertain. One object is the particular alleged offense—Did Mike mess with Dave’s stuff? (an E→E issue), Did Mike commit treason? (an i→S issue). The second object is the legal proceeding for adjudicating any such allegation. I wish to suggest that the passages that Andrew points to (at LJ 291–95) might be more about legal proceeding than about judging a particular alleged offense. Consider an LJ passage which comes a few pages earlier, on page 287:

New courts and new laws are…great evils. Every court is bound only by its own practice. It takes time and repeated practice to ascertain the precise meaning of a law or have precedents enough to determine the practice of a court. Its proceedings will be altogether loose and inaccurate. (LJ 287, italics added)

The practice of a court over time can establish procedure, generating impeccable proceedings—in keeping with forms, conventions, and rules, and leading up to a jury decision. But such procedural precision does not necessarily make the matter of Mike’s guilt precise and accurate to members of the jury. In TMS, when Smith speaks of rules being “precise and accurate” (327.1, 175.11), he speaks of rules pertaining to Mike’s action. Those rules are grammar-like, to Mike’s mind and to that of Mike’s well-informed spectator. However, here at LJ (287), when Smith speaks of “precise,” it is in the “meaning of a law,” “the practice of a court,” “Its proceedings.” And, regarding the pages Andrew cites, where Smith uses “very plain,” (LJ 291), “plainly tyrants” (292), “much more easily distinguished,” “very easily distinguished” (293), it may be argued that Smith has in mind legal proceeding more than the particular alleged offense. For example, if “corresponding with the enemy” (LJ 291) is, procedurally, or de jure, precise and sufficient grounds for treason, does that make everyone who corresponds with the enemy treasonous in the full sense of “treason”? Will jury members return a guilty plea for someone who corresponds with the enemy for reasons clearly unrelated to treason? 

But now I come to my main point: Say some (or even all) government laws specifying i→S duties were precise and accurate. Let us grant that certain laws against treason, against selling cocaine, against not paying your taxes, and so on were precise and accurate. That is, let us grant that they are grammar-like. Andrew suggests that being grammar-like makes them part of CJ. He suggests that grammar-likeness is sufficient for making them CJ.

For example, Andrew writes:

Smith thinks certain duties subjects owe to their jural superiors, such as statutes defining treason, can be made rather precise and accurate, as when he writes of the relative precision of the “part of publick law which comprehends the duties of subjects to their sovereigns” (LJ(A) 311; see also 291–295, 545). They can, (I think) therefore, be counted in commutative justice. (Humphries 2023, italics added)

And:

It seems to me that, therefore, such rules, insofar as they are generally taken up, would become included in CJ for all practical purposes, if not counted among the most sacred rights of justice. (Humphries 2023)

Thus, under i→S duties, Andrew finds more grammar-like rules, and expands the coverage of CJ to include them. I appreciate that within that expanded coverage Andrew distinguishes what he calls, as just quoted, “the most sacred rights of justice,” and he reiterates the importance of these don’t-mess-with duties at the end of his piece. Still, I object to the expansion.

It is true that in TMS Smith not only presents the rules of CJ as grammar-like but even gives the definite impression that CJ is the only social grammar.

But remember that TMS seemed to present itself as being principally about moral duties within the realm of relationships (jural and beyond) among jural equals—and not about moral duties pertaining to the superior-inferior jural relationship. (For example, the paragraph 81.8 is explicitly but a brief turn-out from an extended discussion of social duties among equals.) Smith reinforced that TMS was concerned principally with equal-equal moral duties in 1774, when, with Ed. 4, he expanded the title (boldface added):

The Theory of Moral Sentiments, or An Essay towards an Analysis of the Principles by which Men naturally judge concerning the Conduct and Character, first of their Neighbours, and afterwards of themselves

Smith did not add of their Governors/Rulers, nor of their Subjects.

Remember also that the TMS we know is Ed. 6 of 1790, and it was only then that some of the parts most pertaining to governors and politics (in particular, I.iii.3 and in Part VI) appeared. The point I am making here, about TMS’s equal-equal contextualization, pertains also to Andrew’s utilization of a bit of Smith text (“and in doing voluntarily whatever we can with propriety be forced to do,” from TMS 269.10): I think that Andrew missteps when he extends that bit of text to the superior-inferior jural relationship (see here 205–206).

CJ might be the only grammar of moral duties within the relationships between jural equals, but it is not the only grammar of our social world, for there is also the superior-inferior jural relationship. Within our world of jural dualism, Andrew is seeing other grammar-like i→S rules and including them in CJ. I think that is a mistake.

What is it that makes the rules of CJ the rules of CJ? It is that they oppose (and therefore secure against) messing with person, property, and promises due. Securing those staples is the essence of CJ. True, the rules about messing with person, property, and promises due evolved to be precise and accurate, but they are not CJ rules simply because they are precise and accurate. The essence of CJ is not precision and accuracy.

Where Smith says, in WN, of two laws: “Both laws were evident violations of natural liberty, and therefore unjust” (WN 530), he is not making a point about whether the laws were precise and accurate. He is making the point that the laws do something that would be deemed criminal and coercive if your neighbor tried it, namely restrict you, under threat of coercion, from certain business practices. The jural logic of one’s own is the following: A type of action in the superior-inferior jural relationship is an initiation of coercion if (and only if) such action in equal-equal jural relationships is an initiation of coercion. The action is an initiation of coercion irrespective of whether the rules for administering and enforcing that coercion can be made precise and accurate. That is, making it precise and accurate would not undo its coerciveness, and would not bring it into CJ.

That is why I say it seems like Andrew resists the idea that the initiation of coercion can be good. I encourage Andrew to see (at least) two levels of social grammar in the jural-dualist polity (e.g., USA, Scotland, Sweden), and not to try to subsume one of the grammars within the other. In my lead essay I present a diagram that shows not only the four sets of nonconflicting rules, but also three other sets of rules, one of which is called “Jural rules.” Of that set, Jon Diesel and I say:

‘Jural’ deals with the grammar-like rules of commutative justice and with the legal rules of government, which also aspire to be grammar-like… ‘Jural’ concerns the systems of rules that ought to aspire to serve as social grammars. (Diesel and Klein here 195)

I also speculated that Andrew resists the idea of it being proper to be an inferior ruled by a superior. He writes:

I don’t see the force of law arising from the will of a superior accompanied by rewards and punishments. Rather, the force of [DK: good?] law arises from understanding its goodness. We are to obey or be in accord with good, not out of fear or deference to a tyrannical superior who threatens us, but because good is good. To see and understand good is to want it, but to be ignorant of good or to turn away from good naturally causes suffering. Good sanctions good. (Humphries 2023)

But when I speak of the law of nature, of God, of conscience, the superior that I am suggesting is not a tyrannical one. And the sanctions of that superior are not threats but warnings and reminders: Remember, if you act knowingly against the good of the whole, I will disapprove.

And these superiors correspond (perfectly or otherwise) to good. To say that the force of good law arises from understanding its goodness and to say that that force arises from wanting to please a being corresponding to that goodness are, therefore, not so different. I think the “being” formulation has its benefits (see here).

Let me conclude by noting that as of a few years ago, Andrew espoused natural jurisprudence as a thing, a worthy thing, and I argued, to the contrary, that since no one set among the four sets of nonconflicting rules constituted, by itself, the subject matter of something the study of which was worth calling “natural jurisprudence,” there was no place for a “natural jurisprudence.”

But when I came around to writing about the four sets of nonconflicting rules, I found myself, and with some surprise, espousing natural jurisprudence. I have come to the view, conveyed in the lead essay, that natural jurisprudence is something to embrace, not as the study of one of the four sets, but of all of them in relation to one another.

Something like that had been Andrew’s attitude all along, I believe. Andrew brought me around to embracing natural jurisprudence.