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The just-released Summer 2005 issue of The Independent Review [2] (not yet available on-line) has a first-rate, critical review of Cass Sunstein [3]’s book The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever [4]. The review is by philosopher Max Hocutt.
Immediately following Hocutt’s review is a rebuttal by Sunstein.
Sunstein is most notable for his view – expressed not only in this book, but in many of his countless other writings – that people ultimately owe everything to sovereign power. Because law is necessary for order, freedom, and prosperity – and because (the argument proceeds) government is the source of law – government is the source of all the freedom and prosperity that we enjoy.
Sunstein argument suffers both factual and logical fatal flaws. It does, however, reflect a modern presumption that is widespread.
The first part of Sunstein’s argument is undeniably correct: law is indeed necessary for order, freedom, and prosperity. But he’s factually incorrect that government is the exclusive source of law. Indeed, I would argue that government is not even the chief source of law, nor a particularly good source of law.
Harold Berman [5]’s magisterial 1983 book, Law and Revolution [6], documents beyond reasonable doubt that the law of western societies is largely the product of medieval-era competitive struggles amongst different sources of law, many of which were wannabe sovereigns. Crown struggled with church and gentry; cities struggled with nation; merchants struggled with state. The product of these struggles was fractured sovereignty – which means no real sovereignty – no monopoly source of law. Over the centuries, this fractured sovereignty (although giving way somewhat to greater centralization of power in the 16th and 17th centuries) – this competitive struggle among different sources of law – produced a complex law that is the product of no sovereign. Instead, it is truly and very largely the product of spontaneous order. It is the result of human action but not of sovereign design. It evolved; it was not created.
This law is so deep, so nuanced, so flexible yet enduring, that it could not possibly have been designed by human consciousness. It is the product, not of a prince, but of a process.
And while the state today plays an unquestionably large role in helping to enforce this law, it also is the chief violator of this law. It fancies (as does Sunstein) that its sovereignty — its vast, legitimized power to imprison and kill people — gives it supernatural powers to declare willy-nilly what is and isn’t law.
In a phrase, it mistakes power for law.
I’ll write more about Sunstein’s critical misconception soon. In the meantime, here are some items worth exploring on the topic:
– Tom Palmer’s review [7] of Sunstein’s book
– Anthony de Jasay’s "Your Dog Owns Your House [8]"
– Bruce Benson’s "Where Does Law Come From?" [9] (See also Benson’s superb book, The Enterprise of Law [10])
– my own essay "The Grateful Pedestrian [11]"