Van Dun on Lawyers and the Law

See also Van Dun on Argumentation Ethics and and Federal Judges Aren’t Real Judges, On “Unowned” State Property, Legal Positivism, Ownership vs. Possession,

From Mises blog, July 19 2008. archived comments below.

In Frank Van Dun‘s paper on argumentation ethics, [see “Argumentation Ethics and Liberty: A Concise Guide”] “Argumentation Ethics and the Philosophy of Freedom,” [see Van Dun on Argumentation Ethics; now “Argumentation Ethics and The Philosophy of Freedom”] there is a fascinating discussion about what law and courts and lawyers have become: not justice-seekers, but technical interpreters of artificial rules. Van Dun argues that equality before the law

was a great idea, but of course the powerful, the rulers and their clients, often enough intervened in court proceedings and made a mockery of the independence of the courts of law, replacing them with boards of officials whose main function was (and is) to see to it that their master’s voice is heeded by all. The judges were replaced with “magistrates.” The jurists, whose main concern is the knowledge and application of the principles of justice, were replaced with legists, whose main occupation is to know and apply their masters’ wishes as these are revealed in legal edicts and codes.[27]

Nevertheless, even in this day of rampant legal positivism, the ideals of justice still fashion the way in which those boards and magistrates present themselves to the public at large and to their masters. Unlike bureaucrats and diplomats, the magistrates posing as judges do not claim authority on account of their loyal subservience to their masters, but on account of their “independence” from them. Paying lip service to the ethics of dialogue and argumentation is vitally important for maintaining not only their position in society but also their status as possessors of a science of necessary things. While positivism rules the curriculum in the law schools, telling their students that only “the law” matters and that “the law” is nothing but the set of legal rules, edicts and decisions promulgated by the authorities that other rules in the same set designate as “legal,” the schools never tire of instilling in their students the sense that the implications of positivism do not apply to the magistrates and the advocates they are being trained to become. Like scientists, they should be aware that they are supposed to answer to a calling that transcends loyalty to any social or political regime. Like scientists, they should feel entitled to claim immunity from arbitrary interference, admittedly not as a general human right but as a professional privilege. And like scientists in the Age of Big Politicized Science, they should not have any qualms about serving and assisting the powers that be as long as the latter keep up the pretence of their “independence.”

Albeit in an increasingly emaciated and perverted form, the ethics of argumentation still has a hold on the imagination as the bulwark of civilized co-existence, no matter how obscure the distinction between a scientist and a government expert, or between a judge and a magistrate, has become in public discourse. However, its force is sapped when the point of argumentation in a court no longer is to reveal which actions are justifiable and which are not but merely to determine which party complied with some set of arbitrary politically imposed rules. Then argumentation gives way to a contest in which one “legal mind” tries to outwit his opponent in a game that turns primarily on one’s skills in combining officially recognized legal classifications of facts, legal rules, other legal data such as precedents, and currently fashionable notions into “a strong case.” Similarly, the ethics of argumentation and dialogue loses its grip on the intercourse of scientists if convincing the authorities of the social or political relevance of one’s research becomes a priority.

The argument from argumentation is not a mere academic artifact without any practical significance. It underlies the Western tradition of the philosophy of law and its impressive harvest of principles of substantive and procedural justice, which command respect even after more than a century of systematic “debunking” at the hands of scientistic positivists and others for whom man’s reason counts for nothing and his voice (“vote”) for everything.[28]

[27] For an etymological explication of the distinction between jurists (“ius”) and legists (“lex”), see “The Lawful and The Legal” referred to in note 18 [From note 18: For the argument that “freedom among likes” defines the condition of order (i.e. the law) of the human world, see FRB, and my “The Lawful and the Legal,” Journal des économistes et des études humaines, 1995, VI, 4, p.555–77].

[28] On the distinction between speech (logos, Latin ratio) and voice (phonè), see Aristotle, Politics, I, 2, 1253a9–15.

archived comments

Comments (6)

• Bruce Koerber
• This was the inevitable consequence of the moral relativity that emerged once the Protestant Reformation movement severed the link with Aristotelian thought and turned ‘justification’ on its head.Another way of understanding what moral relativity meant is to recognize that ‘justice’ became a man-made legislative act with no direct connection to the real source of justice which is God and His laws.

• Published: July 20, 2008 6:01 PM

• wuzacon
• As a lawyer, I agree. The current state of the law is a mockery of the law. No longer is the law knowable, even to lawyers practicing in the specialty or subspecialty. How can voluntary action take place when all transactions are observed ex-post under the minutiae of complex regulations or statutes?Not only that, but procedural rules block the common man from requesting assistance. Taking legal action is so overly expensive that it no longer serves most people. It is no wonder that people in the inner-cities live in a constant state of fear and violence.All in all, the law does not provide recourse because it has been separated from any concept of just principles. The law should be accessible, or at least not needlessly inaccessible, for all members of society; otherwise, it does more harm than good — all in the name of the public good.

• Published: July 20, 2008 7:49 PM

• Keith
• Quote from Bruce Koerber: “… the real source of justice which is God and His laws.”Well, there’s a scientifically defendable position.

• Published: July 21, 2008 6:45 AM

• Curt Howland
• Keith, “Well, there’s a scientifically defendable position.”Without getting into the “science” of the problem, the simple fact is that the “word of the gods” is variable. Which gods? When? What version of what book?This all comes down to yet another datapoint in favor of anarchy. The imposition by a coercive power of any one set of rules may start out OK, but it will always tend to favor the coercive agent.I’m very glad to see someone agree that “the law is unknowable”. It took a government to go from “demonstrate harm” to “a violation of title 15, chapter 1,100,382,118, paragraph 17, item 3.1415926535”.The question for me is not whether or not this empire will fall, but how many people will it take with it.

• Published: July 21, 2008 10:20 AM

• Bruce Koerber
• Dear Keith,I assume that since you read Austrian economics you are familiar with the methodology of subjectivism and so I propose to you that it is no longer possible for you to fall into the empiricist mantra of ‘unscientific.’I assume that you also are familiar with how relatively recent in human history subjectivism became recognized as a perfectly valid scientific methodology for the human sciences. Proof: Still most people in the world are completely ignorant of this fact.We must therefore regard subjectivism as being in its early stages of development. Surely you would agree that one of the characteristics of science is that it advances.Not to argue with you but I have found a way to
  scientifically defend the following position: “the real source of justice is God and His laws.” It falls within the scientific application of subjectivism.

  You are welcome to critique any of my books. The one that conclusively proves the above statement is “ETHICS of the Divine Economy” published in 2007.

   

• Published: July 21, 2008 2:23 PM

• newson
• bruce,
  i, for one, hope that mises.org gets around to reviewing your book. (not that i’ve read it, though).

• Published: July 22, 2008 10:31 AM