Justice as distinct from rule through law

The action-based jurisprudence approach considers the proper role of the legal realm to be the definition and promotion of justice, not of rule. Current and historical instances of rule through law, as contrasted with the rule of law (and not of men) therefore provide only rough reference points. If one’s positivistic conception of justice amounts to whatever existing-order agents do (or have been mostly doing for some time), or whatever existing legislation and administrative rules specify, or whatever existing judges decide (or have been mostly deciding for some time), it provides no criteria for evaluating legal findings and acts other than reading the writ, watching the news, and nodding one’s head.

Action-based jurisprudence identifies and applies universal principles to assess the justifiability of actions in terms of legal rights. These principles are universal in that they are derived from and pertain to necessary structural characteristics of action conducted in a social context. Some such action (or negligent omission) must be involved in any “legal” matter or it is not deemed such a matter.

This approach is also distinct from that of natural law/natural rights schools (though closer to them than to positivistic schools) in that it specifies rights more precisely. Rights are viewed as logical implications of action in a social context rather than as emerging from a more nebulous “human nature.” It differentiates legal from ethical realms, viewing them as sharply distinct in method, data types, roles, and epistemological foundations, in contrast with the view that the legal and the moral are merely differently specialized variants of the same type of thing (Graf 2011*, 13–19; 21–25).

This approach is also universal in that it does not admit status-based exceptions. It evaluates actions rather than actors. This is related to the principle that ideas and truth claims should be evaluated on content and evidence rather than on the identity or popularity of their promoters. When the argument-from-authority fallacy test is applied to legal-order practices, each and every agent, regardless of status or position, must take personal responsibility for his own acts.

In other words, “appeal to employment status” cannot justify exceptions to general legal principles. Knowingly false prosecutions ought to lead naturally to independent prosecutions of prosecutors, enforcement abuse ought to lead naturally to independent prosecutions of enforcers, and so on. Each judgment or enforcement step is a new action subject to the same types of evaluations and judgments as the alleged act being responded to. The neglect of such equality before legal principles promotes systematic abuses and injustices within a legal order because it artificially privileges legal-order agents over non-agents.

Moreover, anyone, regardless of position, status, or location can in principle employ action-based jurisprudence to evaluate the justifiability of actions taken by anyone else, likewise independent of position, status, or location. Doing so requires only an understanding of sound legal principles combined with sufficient contextual knowledge of the case under evaluation.

Knowledge of abstract legal-theory principles is accessible to anyone who learns them, in much the same sense as the principles of geometry. Though suitably useful degrees and certifications of knowledge and ability could aid as public recognition instruments, the principles themselves do not depend on any such certification or membership. When a card-carrying member of the Pythagorean Society applies the principles of geometry to a civil engineering problem, they are the same principles as a suitably informed non-member would apply.

Sound legal principles are firm and universally applicable. It is the practices of case interpretation and enforcement that call for flexibility and moral judgment about what, if anything, ought to be done in a given case. The principles themselves are not altered or rendered unreliable merely by virtue of their being applied to interpretive and moral tasks. Misguided pragmatism tries to alter principles to fit the desired solution. The long-term result is an all-too-familiar toxic brew of mangled principles and bad solutions.

Principles are also apolitical. No political action, movement, party, opinion, or “reality” alters the principles of justice themselves. The bottom-line minimum role of such principles is to enable any person anywhere at any time to independently ascertain what is or is not a justifiable act and why.

This may seem to be both a useful form of knowledge and also “impractical.” Yet in both the long run of history and the immediate gaze of moral conscience, such principles are among the most leveraged forms of knowledge. It is precisely this type of knowledge that is capable of producing multi-generation scale positive changes in society. It aids in informing immediate choices, such as ascertaining which legal practices to advocate and which to oppose. Implicit in this is the view that the just and the merely legal in a positivistic sense can and do differ.

Consider, for example, abolitionist opposition to the formerly “legal” practice of slavery. Abolition advocates applied first principles to identifying slavery as unjust even though legal systems permitted and actively supported it (including fugitive slave laws in force in so-called non-slave states). It did so regardless of worldly conventional wisdom of the time, which insisted that slavery had always existed and therefore always would and as a practical matter must—adding that there are certain “necessarily evils” that practical men of the world understand (and go along with). This is not only idle ancient history: the second Fugitive Slave Act was passed into law in the United States Congress so recently as 1850.

A central theme in action-based jurisprudence is differentiating legal theory, legal practice, and ethics based on field boundaries, functions, and methods. The legal specifies the subject of property rights and the circumstances under which force can be justified in response to their violation. Legal theory is therefore narrow in scope. Broader questions of “right and wrong” fall under the scope and methods of both ethics and legal practice.

Confusing these domains has been central to the corruption of each (Graf 2011, Part IV). The logical endpoint of such mingling is the unbridled extension of the legal order into all questions of moral preference and right and wrong in general, also known as totalitarianism. Enforcing a version of “moral” or “correct” behavior, whether religious or secular, through legal means displaces legitimate legal justice with a twisted enforced moralism.

Conversely, the exercise of legitimate moral judgment is discouraged or banned, and the failure to employ such judgment excused, particularly for state agents themselves. Excusing state agents from personal responsibility for acts conducted in an official capacity promotes and enables mass immoral action by such agents. “Just doing my job,” “just following orders,” and “just enforcing the law” reflect an ideology that attempts to displace with positive law what is properly within the sphere of personal ethical responsibility.

Replacing law with ethics and replacing ethics with law both fail utterly as constructive strategies. Such mixing destroys useful functions of both law and ethics and promotes the many variants of police states watching over morally denuded populations.

Legal questions must be met with legal approaches and ethical ones with ethical approaches. Clear differentiation and healthy division of labor between law and ethics are part of the bedrock of civilization and are neglected at such civilization’s peril.

*Graf, Konrad. 2011. “Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice,” Libertarian Papers 3, 19.