Justifying law: An explanation of the deep structure of American law

Charles Darwin argued that human beings are what happen whenphysical laws act upon a planet with the characteristics that earthhad five billion years ago. Similarly, I have argued that theprimacy of individual will is what eventually happens when asociety allocates and limits coercion based upon rights. From timeto time particular visions of the good or the right dominate publicbehavior, but they are eventually enframed by rights — the authoritative claim of each person to respect. I have argued that the propositional structure of American law—the laws themselves — can be seen to be a logically consistentsystem of propositions stemming from the axiom that the will ofeach person is worthy of respect. This is an explanatory, not anormative, proposition. The axiom was not put there by anyoneand the law derived from it, any more than the human brian wasput there and the theory of relativity derived from it. The axiomcame to be embodied in k because of a fact — the single universalcharacteristic of human beings that is relevant to the question ofarranging coercion is individual will — and a process — the right ofeach person to demand a justification for coercion used upon him. Since will is universal to human beings, this would suggest thatany rights-based legal system would evince a general structuresimilar to our own. Particularities of national culture, naturalresources, population density, and so on would produce a verydifferent liberty frontier from the one facing this country andhence, different laws. But the general structure of law — the relationship between principle and policy decision, the role of thebasic rights, and so on — should be similar. This similarity shouldprovide a common basis for cooperation between states, transcending particularities of economic structure, political structure and ideology. We have seen that a very broad range ofeconomic and political institutions may be justified. The essential difference between states lies not in the different ways that theyarrange institutions but in the different ways that they justifythem. Those that justify them to people as persons are similar.Those that justify them by conformity to a design are different. The theory set out here is not a design. It is an explanation. Onevirtue of explanations is that they draw forth other explanations.More importantly, they offer perspective — they tell us what weare “up to.” As the social relations which law must rationalizebecome ever more complex, perspective becomes ever more necessary. The simple laws have already been written. The connectionbetween the doctrine of consideration and the first principle isobvious. The connection between the “hard look” doctrine ofreviewing administrative agencies and the second principle isnowhere near so obvious (though it is a lovely example of thejudicial process enframing the realm of uncertainty). The morecomplex and artificial the institution, the poorer the guidance ofintuition and the more necessary are conscious guides to decision. Justification comes easy to printers. Most of them don't knowwhy a page of print that has straight margines left and right is“justified.” They don't need to know, for the idea has immediateintuitive appeal; it is easy to accept and to remember, and, onceremembered, it is an effective guide to behavior. It is easy to seethat this line of print is not justified and to do somethingabout it. It is not so easy to tell whether the “hard look” doctrine orthe enforcement of a surrogate motherhood contract sits fairly on itspage. Justification of law requires an understanding of thecriterion against which it is being done. There is an intuitive core— a “sense” — to any act of judgment, but that core can be illuminated and developed by an understanding of the framework withinwhich it operates.