Academic Philosophy

Hart, Dworkin, and Trump

Two federal appeals courts have now held that Trump’s Executive Order temporarily banning immigration from certain countries is unconstitutional. The 4th Circuit thought that the EO was discriminatory, while the 9th Circuit opined that the President had exceeded the congressional mandate (recall that immigration has always been the province of Congress, not the Executive, so the President’s authority in this field is delegated authority.) It is unclear what will happen if the case goes to the Supreme Court.

I was and continue to be of the opinion that:
1) The EO is wrong and counterproductive.
2) The legal precedents, however, support the constitutionality of the order (I also think these legal precedents are dangerous and should be overturned.)

In these pages I suggested that those who purported to rely on precedent to invalidate the order were just doing advocacy, and that the public would be better served if courts and commentators candidly admitted that they were making up new law, that is, trying to overturn the applicable precedents.

Today I’d like to suggest a new angle. Whether the EO order is constitutional depends on your theory of law. If you are a positivist, then you cannot honestly argue that the EO is unconstitutional, because precedent strongly indicates the opposite. Herbert Hart, a leading positivist, argued that  legal propositions derive in one way or another from the legal materials as created by lawmakers. Moral reasoning, while important, is separate from legal reasoning. Hart, therefore, would have said that the EO is lawful but immoral, and that perhaps immigrants who break the law and sanctuaries who receive them are upholding a moral obligation that prevails over their legal obligation.

But if you are not a positivist, then moral reasoning is part and parcel of the law. Ronald Dworkin famously defended such a view. As against Hart, he argued that legal materials (the Constitution, statutes, judicial precedent) should be read in their best possible light. This means consistency, of course, but it also means making the legal materials be the best they can be. And by “best” he meant “the best they can be under the most plausible moral-political theory that explains he Constitution.” Such theory would then be part and parcel of law, and not, as Hart thought, something separate from it.

So, if you are like me and object to this EO, you are in better shape if you are a Dworkinian rather than a Hartian. If the best available moral-political theory entails the immorality of the EO, then the EO is not just immoral: it is illegal as well. (Of course, some will say that the EO is perfectly moral. For them the problem I identified doesn’t arise.)

The reason why the Dworkinian approach is not prevalent is that most lawyers are anxious to appear as objective positivists, as applying and not inventing law. That leads them to dishonesty, to pretend they are applying and not inventing law when they are, in fact, doing exactly that. I regard this as evidence that some form of natural law theory (Dworkinian or not) is superior to positivism.

Book/Article Reviews

Conspire Me This: Is Nancy MacLean a Hired Gun for the Establishment?

Historian Nancy MacLean recently wrote a hit piece smearing James Buchanan and a number of other public choice theorists.

What’s Buchanan’s basic message? Simple: Government isn’t magic. In representative democracy, small, privileged special interests groups–such as the corporations–make deals with the government. The government then uses its power to distribute favors to the privileged at the expense of the everyone else. And it does so while telling the bald-face lie that “government is just the name we give to the things we choose to do together.” 

Buchanan won a Nobel Prize for fighting for the little person and for speaking truth to power.

Now the government sure wouldn’t want anyone making its dirty secret public, would it?

So, along comes Nancy MacLean. The government paid her over $50,000 to smear Buchanan and people like him. Rather than challenge his ideas, she accuses him of this and that. Yet, all the while, Nancy is quite literally a hired gun for the government seeking to rationalize its oppression and abuses.

Its a bad book, and you, might notice, not peer-reviewed. But keep in mind it is quite literally a piece of government-funded propaganda. There’s no more point in arguing with Nancy than there is arguing with one of Goebbels’s essays. Asking about its intellectual value is a category mistake.


UPDATE: Here, Russ Roberts catches Nancy “I lie for money, status, and power” MacLean straight up lying about Tyler Cowen. 




Supreme Court responds to Matal v. Tam, regarding “The Slants”

In 2011 a young musician and polymath, Simon Tam, got a suggestion from a lawyer friend. Simon’s band, “The Slants,” was blowing up quite a bit, and the lawyer friend was pointing out that they had not trademarked their name. The lawyer said that it shouldn’t be a big deal, a couple of hundred dollars and some paperwork.

Mr. Tam was pretty busy, but since the lawyer said he could take care of it Tam said to go for it. They had already been using the name for a while; in fact, their album “Slants! Slants! Revolution” in 2009 had taken for granted that the ironic use of the slur, based on the imagined shape of Asian eyes, was something they could own and take back. (I should note that, if you are older than 40 or younger than about 25, there was this thing called “Dance! Dance! Revolution” in arcades…oh, never mind.)

The group wasn’t really worried much about their trademark application; it all seemed pro forma. But one day (according to the version told here:  Meredith Bragg (Interviewer), “The Slants: The Band Who Must Not Be Named,” Reason, April, 2017, ) the lawyer friend called and said they had a problem. “They said your [band] is disparaging to persons of Asian descent….[meaning that] a substantial composite of the reference group has to find it disparaging.”  The reference given by the trademark office was that great legal authority Wikipedia, and a photo of Miley Cyrus pulling her eyebrows back and sticking her teeth out.

That was it. The trademark Nazis said, “No trademark for you!” To be fair, I can understand being offended by Miley Cyrus, but that’s hardly a problem for Mr. Tam’s band.  And offensive, “let’s own this!” band names have a long tradition in rock. Right off the top of your head, you can think of Courtney Love’s band, “Hole” (it was all women; OMG!); the “Butthole Surfers” (I don’t know if that’s offensive to surfers, but they still have a MySpace page, and that should offend anyone); and “The Dicks.” You might think that “The Dicks” would go on tour with “Hole,” but The Dicks did an album called “Dicks Live!  Hungry Butt,” so they might not really be on that team.

Yes, that was a really offensive paragraph. Rock music, punk music, hip hop if it’s real, all of it should be pretty upsetting and offensive. (I imagine that by this point my good friend Jacob Levy is clutching at his pearls and fanning himself with a copy of Spirit of Laws, muttering, “Wah, wah, ah NEVah!”)

Well, Mr. Tam and the other Slants went to court. They managed to take the issue all the way to the Supreme Court.  The case was heard in January.  And it was decided on Monday.

And the Court was quite properly offended by the decision of the trademark office.  Here’s the decision ( ), and here is Damon Root with some commentary. [ Damon Root, “In Major Free Speech Victory, SCOTUS Rules for ‘The Slants’ and Strikes Down Federal Trademark Restriction,” Reason, Jun. 19, 2017 11:18 am, ]

Now why doesn’t somebody do something about Miley Cyrus?

Academic Philosophy

CFP: Palgrave Studies in Classical Liberalism

Readers of this blog might be interested in a new series, published by Palgrave and edited by David Hardwick and Leslie Marsh: Palgrave Studies in Classical Liberalism.

Here’s a description from the publisher’s website:

This series offers a forum to writers concerned that the central presuppositions of the liberal tradition have been severely corroded, neglected, or misappropriated by overly rationalistic and constructivist approaches.

The hardest-won achievement of the liberal tradition has been the wrestling of epistemic independence from overwhelming concentrations of power, monopolies and capricious zealotries. The very precondition of knowledge is the exploitation of the epistemic virtues accorded by society’s situated and distributed manifold of spontaneous orders, the DNA of the modern civil condition.

With the confluence of interest in situated and distributed liberalism emanating from the Scottish tradition, Austrian and behavioral economics, non-Cartesian philosophy and moral psychology, the editors are soliciting proposals that speak to this multidisciplinary constituency. Sole or joint authorship submissions are welcome as are edited collections (conference proceedings excluded), broadly theoretical or topical in nature.

If you’re interested in submitting a proposal to the series, please email Leslie Marsh.