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The Depoliticization of Law

The Depoliticization of Law

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Theoretical Inquiries in Law 
Volume
 9,
 Number 
 2
 July
 2008
 Article
 9
L
EGAL
 P
LURALISM
, P
RIVATIZATION OF
 L
AW AND
M
ULTICULTURALISM
The Depoliticization of Law
John Hasnas
,Copyright c
2008 The Berkeley Electronic Press. All rights reserved.
 
The Depoliticization of Law
 John Hasnas
*
 Advocates of the privatization of law often assume that unless lawsprings from some act of agreement, some express or implicit socialcontract by which individuals consent to be bound, it is nothingmore than force. In this Article, I argue that this is a false dilemma. Although law is rarely grounded in consent, this does not imply that law necessarily gives some individuals command over others. Lawcan arise through a process of evolution. When this is the case, thosesubject to law are indeed bound, but not by the will of any particular human beings. Although this depoliticized law is inherently coercive, it is not inherently a vehicle for domination. This Article argues that sucha system of depoliticized law is consistent with the ideal of the ruleof law, and, in fact, is free market law, when that phrase is properlyunderstood.
I
NTRODUCTION
L
ibertarian philosophers of law often write as though law is morallylegitimate only if grounded in individual consent. They assume that unlesslaw springs from some act of agreement, some express or implicit socialcontract by which individuals consent to be bound, it is nothing more thanforce. According to this view, law is either a legitimate mechanism of social ordering that is consistent with respect for individual autonomy or
* Associate Professor, Georgetown University, J.D. & Ph.D. in Philosophy, DukeUniversity, LL.M. in Legal Education, Temple University. The author is greatlyindebted to Menachem Mautner, Talia Fisher, Assaf Likhovski and the staff of the Cegla Center for the opportunity to present this Article at the conference onLegal Pluralism, Privatization of Law and Multiculturalism, and for their help inits production. The author also wishes to thank Ann C. Tunstall of SciLucent, LLCfor her insightful comments on a draft of this Article, and Annette and Ava Hasnasfor giving him a first-hand understanding of how things can be a product of humanaction but not of human design.
Produced by The Berkeley Electronic Press, 2008
 
530
 Theoretical Inquiries in Law
 [Vol. 9:529
an illegitimate mechanism of coercion by which some human beings aresubjected to the will of others.I believe this is a false dilemma. Law is rarely, if ever, grounded inconsent. This does not mean, however, that law necessarily gives someindividuals command over others. There is a third possibility. Law can arisethrough a process of evolution. It can be a product of "human action, but notthe execution of any human design."
1
Insuch a case, those subject to lawareindeed bound, but not by the will of any particular human beings. Althoughlawisinherentlycoercive,itisnotinherentlyavehiclefordomination.Totheextentthattheidealoftheruleoflawconsistsofavisionofasocietygovernedby "laws but notmen," this conception of lawplacesthe idealwithinreach.In this Article, I argue for this third possibility; for a society governedby law that evolves from human interaction without the conscious guidanceof any particular human intelligence. I begin, in Part I, by clarifying theterminology I intend to employ in making my case. In Part II, I identifyand distinguish three types of law: politicized law, depoliticized law, andconsent-based law. In Part III, I argue that politicized law is not consistentwithasocietygovernedbytheruleoflaw.InPartIV,Iarguethatdepoliticizedlaw is consistent with the rule of law, and, in the only meaningful senseof the phrase, should be understood as free-market law. Finally, in PartV, I close with some speculation concerning the viability of a system of consent-based law.
I. P
RELIMINARY
M
ATTERS
Before presenting my arguments, I would like to clarify the way I intend touse several terms. Because I will sometimes be employing terms in waysthat differ from their conventional usages, I want to ensure that I do notthereby engender confusion or misunderstanding.
A. Political
The term "political" may be used in many ways, and is fraught withambiguity. In this Article, I intend to use the term to refer to anything thatis concerned with the effort to gain control of the machinery of the stateor that is the consciously created output of that machinery. Everything elsewill be considered non-political.
1
 A
DAM
 F
ERGUSON
, A
N
 E
SSAY ON THE
 H
ISTORY OF
 C
IVIL
 S
OCIETY
 pt. 3, § 2 (1767).
http://www.bepress.com/til/default/vol9/iss2/art9

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