A Facebook memory from September 2017. I neglected to mention that I got the title and general inspiration from Russell Means’s 1992 lecture, “Welcome to the Reservation.” Unfortunately, both messages have aged well. Here’s The Intercept piece that provided the occasion for the post.
We’ve been doing some philosophy of law in the PoT reading group lately, and a recent piece came up by Cass Sunstein on “The Rule of Law.” The abstract claims that “this [Sunstein’s] account of the rule of law conflicts with those offered by (among many others) Friedrich Hayek and Morton Horwitz, who conflate the idea with other, quite different ideas and practices.” This statement caught my attention because Sunstein’s account of the rule of law seems very sensible. It is in fact quite similar to the account given by our current reading group book author Lon Fuller (that’s how Sunstein’s piece came up), which also seems sensible. At the same time, I am a strong admirer of Hayek. So, if the sensible Sunstein/Fuller account of the rule of law conflicts with Hayek’s, what’s the conflict? What “different ideas and practices” does Hayek “conflate” the rule of law with? Essentially none, it turns out. Sunstein’s, Fuller’s, and Hayek’s conceptions of the rule of law are largely the same. Sunstein misunderstands Hayek’s argument that the rule of law requires economic freedom. At least, so I will argue in what follows.
Continue readingHaving finished with Gerald Gaus’s The Tyranny of the Ideal, our MTSP Philosophy Discussion Group is now back to reading philosophy of law, working our way through Lon Fuller’s The Morality of Law (1964/1969). Fuller’s book is Roderick Long’s choice, part of a sequence of books on philosophy of law we’re reading at his suggestion, starting with H.L.A. Hart, passing through Fuller, eventually en route to the work of Ronald Dworkin.
Having just read the first chapter of Fuller (and for the first time), I have to say that I find Fuller a refreshingly clear and engaging writer, much easier to read than, say, Gaus, Scanlon, or Hart. But clear as Fuller is, I don’t find his arguments in this first chapter sound. In this post, I want to offer a quick-and-dirty (but still, I think, effective) criticism of just one point he makes in the chapter, namely, his supposed distinction between “the morality of duty” and the “morality of aspiration.” Continue reading
Policy of Truth 