insideandoutsidespoonersnaturallawjurisprudence.doc

Inside and Outside Spooner’s Natural Law Jurisprudence Roderick T. Long Auburn University longrob@ Lysander Spooner (1808-1887), whose bicentenary we mark this year, was the foremost legal theorist of 19th century American radical liberalism – that fusion of classical liberalism and individualist anarchism that laid the foundations of the modern libertarian movement, for which Spooner remains a revered and frequently (albeit selectively) quoted figure. Like his fellow American radicals Josiah Warren, Stephen Pearl Andrews, Ezra Heywood, Angela Heywood, Lillian Harman, Benjamin Tucker, Sarah Holmes, Voltairine de Cleyre, Dyer Lum, and Victor Yarros (or, in England, Thomas Hodgskin and Herbert Spencer), Spooner favoured the establishment a society in which all human relations would be strictly voluntary; advocated the abolition of slavery, militarism, gender inequality, plutocratic privilege, and the monopoly state; and drew a firm distinction between the free market and the corporate-capitalist wage system, supporting the former but opposing the latter. Unlike most of these colleagues, however, Spooner based his arguments less on ethics, economics, or sociology than on strictly legal reasoning. Rather than assailing the prevailing laws as injurious assaults on liberty and equality, Spooner attempted to show that such assaults on liberty and equality were in fact illegal. But Spooner might seem to have defended two distinct and incompatible theories of the relation between his libertarian legal norms and positive law. In his earlier writings, prior to the 1861-65 U.S. Civil War, such as The Unconstitutionality of Slavery (1846), libertarian legal norms appear to emerge from considerations immanent within the positive law; but in his later, postwar writings, such as Natural Law, or the Science of Justice (1882), such norms appear instead to function as an external constraint on the legitimacy, and indeed the legality, of positive statutes. I shall argue, dr