Legal History, its Methodology, and its Philosophical Implications: Part II

PART II of III
The Illusion of an Analytical and Normative Divide in History and Law

In Part I of this series, I claimed that law is a normative enterprise.  Of course, I realize that this may a controversial claim, depending on my intended sense of normativity.  Many theorists have dedicated their academic careers to distinguishing law from other rule-based categories such as morality.  They claim that law need not be normative in any pre-determined sense.  I admit that the term is loaded and presents an immediate ambiguity that needs to be resolved.  What do I mean, precisely, by claiming that law is “normative”?

I do not mean normative in the experiential sense, i.e., that law demands compliance with respect to individual human behavior.  I do believe this to be true, but I am more concerned with the question of whether the content of law needs to be pre-determined, at least in a provisional sense.  As I see it, law is like any other subset of rules.  It is normative because it is necessarily concerned with how its content ought to be designed (or, on a Hayekian view, how it should be permitted to spontaneously emerge) and how it ought to be enforced.  There are objective standards for what constitutes a good law versus a bad one.  Personally, I believe these standards to be based in morality, but they can premised on any number of things, as I hope to demonstrate.

H.L.A. Hart
(1907-1992)

H.L.A. Hart, the preeminent analytical legal philosopher of the 20th century, argued in his magnum opus, The Concept of Law, that jurisprudence, as was practiced by Blackstone in the Anglo-American tradition and the Scholastics on the Continent, could be distinguished from law qua analytical jurisprudential science.  Legal theory, for Hart, could only concern itself with a descriptive account of what special social rules — or laws — governed any given political society.  It is not the job of the legal theorist, on Hart’s view, to concern himself with whether the observed rules in that political society are “true” in a metaphysical sense.

But therein lies the problem with positivism and even more extreme non-Hartian theories such as American legal realism.  They all fail to successfully divorce law from the “thick” sense of normativity that I seek to identify.  Let me explain.  It is true, for example, that Hart is able to separate law and morality in an immediate sense; it may be the case that the content of a legal system is not dependent on the content of its public morality: the laws of country X need not be, as a matter of necessity, judged by the moral code of the majority of X’s inhabitants (or perhaps even the morality of a minority!).  On the Hartian account, law becomes something more indeterminate.  As the Realist might claim, it becomes simply the result of the political pragmatism of government actors: legislators, judges, etc.

Yet, even the positivist cannot escape the second aspect of normativity that inheres in the law.  While legal validity may no longer be premised on morality, it is instead judged “good” according to social fact, whether that “fact” be pedigree, or the consensual compliance of a majority of legal officials, or any other number of alternative bases.  For law to be a distinct category of political phenomenon, it must be standardized, it must conform to something.  For the natural lawyer, the positive law possess legality, or obliges its subjects, only when conforming to a moralized conception of justice; for the Hartian, it must emerge in compliance with the union of secondary and primary rules, and according to a rule of recognition; and for the “hard” positivist, it must have been the product of a legitimate legislative process, etc.

The illusion of a divide between the analytical and the normative abounds in the law. The foremost example in our own legal system is the concept of “due process” in the United States Constitution.  For many conservatives and legal positivists, “due process” of law is purely procedural, or “analytical”: it represents a set of factual conditions that are either met or are not met.  On the other hand, especially for more progressively-minded persons, “due process” has a substantive content that is independent of procedure.  On this latter view, it should not be enough, for example, that a state government exhaust the proper political channels for overriding a constitutional right, since there are certain realms of human action that should, at the theoretical level, simply be outside the reach of government.  Throwing “process” as a legitimating device, at certain laws will never be able to legally justify their (potentially) illegitimate force.

Ultimately, I think that the distinction between process and substance is much ado about nothing.  Without a theoretical understanding of the demands of process — a substantive theory, that is — it would be impossible to adjudicate challenges under the Fifth and Fourteenth Amendments.  And without some objective procedural standards, it would be difficult to determine when the substantive demands of the law have, or have not, been met.  The two go together.

I see many similarities between this aspect of law’s normativity and the other humane sciences, including history.  Can history be an “objective,” or “unbiased” science of description?  Or does it require a deeper, philosophically-informed substance or content?  In other words, to what extent can (or do) historical propositions represent something more than unloaded factual claims as to what has transpired, objectively-speaking, in the past?

Georg W. F. Hegel
(1770-1830)

I do not mean to claim that history is an impossible field; that we cannot accurately understand the events of the past in some “neutral” form.  At the same time, all history contains a number of subjective elements.  Historical actors will each have their own experiences of reality, and will relate them in different ways.  Historians themselves, based on their own experiences and their own methodologies, will interpret history in divers ways and with diverse results.  Critical methods, revisionism, and alternative histories, such the narrative approach, help to develop this complexity of “doing” history and better understanding the past.

What I am claiming is that “history” cannot be divorced from the historian — its content, like the rules comprising a legal system, are derived according to certain principles that animate the historian.  While this might strike some as hopeless relativism, I do not mean to deny, again, the existence of historical reality — that certain events have transpired in certain ways — or to express unabashed skepticism as to the possibility of disinterested historical methodology accessing that reality.  Rather, I believe it is exceedingly difficulty to achieve an objective, unbiased account of such events.  There is as much room for the historian who tries to approach the past from the difficult position of the unbiased observer, as there is room for the historian who seeks to use history in an instrumental way for some other end.  As Hegel once remarked: Weltgeschichte ist das Weltgericht.  We should not be afraid to embrace history as our judge, as we understand it to be, and to use it in achieving moral (and legal) progress.

Part III will be published within the next week or two.

Legal History, its Methodology, and its Philosophical Implications: Part I - Introduction

Last semester, I took a fascinating class entitled “Historical Perspectives on Law, Constitutionalism, and Culture.”  Every other week or so, a different legal historian would present his or her current research or a forthcoming paper, and the students would provide constructive feedback.  In most cases, faculty members from BU would join the discussion.  It was a unique experience and a definite change from the standard law school curriculum. 

At the end of the course, in lieu of a final examination, we had a dinner party.  Amazing.  We were supposed to discuss the use of legal history in constitutional litigation, but it never really came up in the course of the evening.  Still, the readings assigned for that night never really left my mind, and I ended up writing my final paper on some assorted musings on the infamous “historians’ amicus brief” in Webster v. Reproductive Health Services.  492 U.S. 490 (1989).

I have since revisited that paper and spent some more time thinking about legal history, its methodology (as I understand it), and some philosophical implications.  Over the course of a few blog posts, I want to share these thoughts.  Hopefully, they'll be presented in a logical and organized way . . . but one can only hope.

A note of warning: while I did study history as an undergraduate, I am not a historian. Consequently, I beg the reader’s forgiveness for how I grapple with the philosophical implications of the field’s methodology — at least as I understand it is conceived within the legal academe.  If anything, my failings may inspire some feedback in the comments, and thereby be fruitful nonetheless!

*  *  *

Legal historians are frequently concerned with avoiding the charge of “presentism,” that is, the use of historical facts, or descriptions of the past, in advancing political, or more generally normative claims about how we ought to behave in today’s world.  In another sense, presentism in historical analysis can refer to the use of contemporary terminology, conceptions, and knowledge in interpreting historical situations.  While the former definition suggests an underlying teleological conceptualization of history qua academic science, the latter represents a sort of methodological anachronism.  The two admittedly go hand and hand quite frequently, but they are not necessarily related to one another.

An illustration of the two meanings that I have proposed may prove beneficial.  Consider the concept of popular democracy.  Modern notions of freedom — or more precisely, positive freedom (as Isaiah Berlin might specify) or individual autonomy — require that any given community allow its constituent members to participate in the political process vis-à-vis democratic means.  Indeed, it has become self-contradictory to speak of individual liberty under an absolute monarchy, for example, let alone some other form of authoritarianism.  Consequently, a “presentist” historian may attempt to interpret history through the lens of this modern understanding of “freedom.”  In so doing, he would likely use the condemnatory language reserved for modern dictatorships in describing, say, the mediaeval feudal system, or imperial mercantilism as practiced in the American colonies, even though contemporaries of either period might not have understood these political systems to be “repressive” in the same way.  In the legal context, the presentist would see laws that may never have been understood by their creators to be opposed to “freedom,” as achieving just such opposition.  Finally, the “presentist” historian might suggest that the progress evidenced by history, which has lead to today’s acceptance of popular democracy as a sort of politico-moral imperative, is somehow good and determinative.  In other words, that history has “show” democracy to be something that “ought” to be practiced.

This may seem like an extreme illustration, and in some sense, it is.  True instances of presentism are few and far between.  And even when there are traces of presentism in the legal literature, they are often masked, or difficult to discern.  At the same time, some level of presentism is expected.  Because law is typically understood as a normative system, it makes sense to look to past practices to glean information that can inform contemporary decision-making.  In some sense, this is exactly the project of constitutional originalism, which looks to the original public meaning of constitutional provisions at the time of the Founding, or their ratification.  On this approach to constitutional interpretation, history is very much authoritative.

What I have referred to as teleological presentism, then, is not unknown and may even be ubiquitous.  Yet, presentism can also be witnessed in another sense, and, once again, more so in the context of the law.  I recently read a forthcoming paper from a young professor down South.  His name is unimportant — his paper was only a draft, and I do not want to “cite” him — but his project was fascinating.  In short, he attempted to argue that “federalism” was a concept as amenable to modern liberalism as it is to conservatism and classical liberalism.  I was skeptical when I first read the paper, and remain unconvinced, but that is not so important.  What is important is just how much presentism pervaded his work.  It seemed to me that his whole project was a methodological anachronism, insofar as it adopted modern progressive conceptions of federalism in place of the thicker political understanding that had been adopted by the Founders.

But I digress.  The point is that presentism abounds in legal thinking.  Yet, presentism and deterministic historical accounts are also proliferate in the non-legal historical literature.  Francis Fukuyama and Samuel Huntington are two prime examples from the realm of popular history and political theory.  Fukuyama is infamous for his pseudo-Hegelian theory of the convergence of history in an ultimate “end,” namely, the success of liberal democracy, which he details in The End of History and the Last Man.  In rather Whiggish fashion, Fukuyama generally understands history — whether legal, political, or economic, etc. — as progressing toward the emergence and supremacy of liberal democracy.  All history, then, should be read in light of this evolutionary development, much like Marxian theory understands all history as class warfare moving toward the ultimate victory of communism.  Samuel Huntington, on the other hand, in his rejoinder The Clash of Civilizations, takes a view of history as being marked by the continually volatile relations between different cultures.  In either case, both Huntington and Fukuyama “do” their history with certain philosophical presuppositions as to the nature of their subject of inquiry.

Lawyers, jurists, and legal historians tend to incorporate similar normative criticisms into their academic work as a matter of habit.  And they similarly come to the table with certain philosophical presuppositions, even if they deny this to be the case.  The law is concerned at some level, no matter one’s personal jurisprudential views, with the regulation of human behavior.  One need not be an Austinian to recognize that the law serves an important role as the class of rules enforced by the political community under the guise of a sovereign — even if, like the Natural Lawyer or the Realist argues, there might be “more to the story.”  Insofar as law itself is normative, even if only in a phenomenological or experiential sense, lawyers et al, will be concerned with how it ought to be designed and implemented, and how justice ought to be met.

Obviously, I will be unable to provide an exhaustive account of my views on these matters.  But I hope, nevertheless, to undertake a cursory explanation for how and why history can (and should) be used to inform (and influence) judicial decision-making and legislation.  In short, I do not see history as some purely analytical science that is immune from biases, prejudices, and other such presuppositions.  And I do see history as being a useful tool, especially in conjunction with other sciences such as philosophy, political theory, and economics, in ordering society and our legal order.

Objectivist (inter alia) Dating Websites

Big Think via Public Reason:

With Internet romance sites catering to virtually every interest . . . you'd think there would be something for philosophy fans.  Well, there is, but the pickings are extremely limited.  If you're a devotee of the greed-preaching Tea Party inspiration known as Ayn Rand, and you think total self-reliance is compatible with romance, you are in luck.

My favorite is probably the Hannah Arendt suggestion:

AmorousArendtians.com - "Spice up your vita activa"

Apparently, there is also an on-line dating website for Objectivists.  Really.  It has nearly 30,000 user profiles! All jokes aside, I think Rand's philosophy of love is . . . interesting.  It is easily misunderstood, as is most of Rand's work.  Selfishness, as an Objective understands it, is more like rational self-interest.  Unlike a pure altruist, the properly selfish person doesn't sacrifice himself to others, or reduce himself to a mere means.  This is all highly simplified, but I think it conveys the general idea of Rand's basic ethical principle; it isn't all about doing what every you want like some hedonist or libertine.

Love is about self-interest at all levels.  You choose to be with another person because you gain something from that relationship, etc.  In The Virtue of Selfishness, I seem to recall a passage describing "true love" in the context of a man whose wife is on the brink of death.  The husband learns that there is a way to save her, but it would require that he loose his own life.  Now, on most accounts, this would be a selfless act, should the man sacrifice his life for that of his beloved's.  But Rand doesn't look at it this way.  She reinterprets this scenario in terms of self-interest: the man is rational and acts rightly in giving up his life for his wife, because it would contradict his love for her to do otherwise.  If he truly loves her, than to have a life without her would be of less value than the one he currently enjoys.  By giving up his life, he doesn't sacrifice it for anyone but himself, since it is a more desirable ending to having to suffer without his spouse.

I suppose this isn't a terribly flattering photo...

I'm not convinced that this captures everything about love about which we should be concerned.  After reading a lot of Rand - including a fascinating 1964 interview with Playboy - I feel like there is something seriously lacking.  I try to be more open-minded than most within the philosophical world when it comes to consider Rand's arguments, and I think she has a lot to offer. That said, I think there is a lot about love in our lived experience which is inexplicable on an Objectivist approach.  Certainly, the idea of the instrumentality of love and erotic desire isn't anything new.  Plato, in Symposium and Phaedrus, discusses how eros inspires in the lover an ascending insight into the Forms.  His motivation, it would seem, is self-interested.

But Platonic love of this variety also requires that the lover inspire in his beloved the philosophical way of living for the beloved's benefit.  I suppose this, too, could be construed as self-interested because it is allows for more meaningful discourse between the lover and the beloved - an important feature of the relationship and its ability to serve the good of the lover in ascending towards noetic insight, etc.  Or it could even be seen as a mark or reciprocity (though not equality) within the relationship - it's simply a "trade" of services.  I don't think this would be accurate, nor would Plato think so.  Indeed, in Aristotle's Nicomachean Ethics, and with the introduction of Christianity, the lover is expected to will the good of the other for the other's own sake.  The mark of true love is an interest in seeing the betterment of the beloved, regardless of the benefit which one might receive.

Ultimately, then, the problem with Rand is her reclassification of everything as self-interestedness.  She makes a sort of category mistake.  Let's return to the hypothetical of the man with the dying wife.  I find it hard to conceive of his life as anything but sacrifice for the simple good of his woman.  How can we really say that he experiences a benefit in death, which cannot even be considered a good?  The momentary happiness he gains between his decision to "pull the trigger" (assuming he's using a gun to do the deed) and the moment when he dies seems of inconsequential value compared to the greater happiness he could acquire in the long-run should he not die.  Once you're dead, it is all over, at least in this life.  (NB: At this point, Rand would call me an irrational mystic, and probably leave the room.)  If one were serious about being self-interested, then staying alive, rebuilding one's life, and finding another lover seems the more ethical decision.  The man who is so impassioned that he chooses to kill himself appears to be irrational.  And it wasn't as if Rand was a big believer in monogamy - just read Atlas Shrugged, or even better, a biography of her own life - so any argument that this was his "soulmate" isn't going to be convincing to an Objectivist.

This is a major problem with Rand.  Everything is somehow derived from "Existence exists" and "A = A."  If we only act ethically when we act in self-interest, then every ethical dilemma is exceedingly simple to resolve.  But I'm not so certain that our world is full of such stark choices.  And I'm certain that love, whether amongst men, or between God and men, is a little more complicated, even mysterious, then Rand is willing to admit.

The Personhood of the Unborn

The "March for Life" was held in Washington, D.C. today.  While I was unable to attend personally, my thoughts and prayers were with everyone -- including many friends and colleagues -- who did have an opportunity to participate.

The continued protection of the "fundamental" right to abortion is an affront to basic moral principles, at least in my estimation.  I know that many people share this view, while just as many disagree.  In the past forty years, however, great strides have been made, and victories won, for the cause of innocent life and its protection.  

Certainly, Roe v. Wade was a travesty.  And for many reasons.  Even liberal scholars and commentators admit that it was sloppily drafted and rests on poor interpretative foundations.  Daniel Williams suggested yesterday, contra the received historical interpretation, that it may even have halted the pro-life movement dead in its tracks so many years ago.

Of course, in some ways, our abortion jurisprudence, while still less than perfect, has come a long way from Roe, and in the right direction, despite what many pro-lifers may think.  Compared to where we were forty years ago, the pro-life movement has gained a lot of traction in reasserting the rights of states in limiting the practice of abortion.  As the Guttmacher Institute -- a pro-abortion non-profit -- reports: 

"Although a core of states in the Northeast and on the West Coast remained consistently supportive of abortion rights between 2000 and 2011, a substantial number of other states shifted from having only a moderate number of abortion restrictions to becoming overtly hostile."

Perhaps, one might say, we should take their reports with a grain of salt.  Nevertheless, I think it remains true that, at least so far, we've been winning.  I don't mean, of course, to imply that the "war" is won; it certainly isn't.  Indeed, the fiercest battles lay ahead.  At present, the largest threat to the protection of life is the current administration.  While I am unaware of any major efforts to liberalize abortion procedures among the many States, the increasing federalization of medical law, and the implementation of President Obama's healthcare reform should alarm pro-lifers.  The coming legal battle over contraception and the protection of conscience rights under the First Amendment, while seemingly trivial to some, could have tremendous implications for more controversial issues such as abortion.

There is one aspect of the abortion debate, and the state of the law, though, which I find deeply troublesome.  Despite the foregoing optimism that I've shared concerning how far we've come, I don't want to overstate the case.  I've already mentioned that healthcare reform and the erosion of First Amendment rights pose a serious threat to the protection of the unborn.  On a deeper level, however, there is a serious moral dilemma which remains unresolved and will prevent any serious victory in the battle to protect innocent life, viz., the failure of the Court to recognize the personhood of the unborn.

A number of months ago, I wrote an article for "The Bell Towers" on this very issue ("Casey, Originalism, and the Personhood of the Unborn").  I encourage everyone to take a gander at what I had to say.  The article is, by no means, comprehensive, but I think it makes some important criticisms of what Justice O'Connor did (or rather, failed to do) when writing the Court's opinion in Casey.

Earlier today, the Witherspoon Institute published a compelling piece by Gerard Bradley, who discusses this same issue, though in greater detail.  I highly recommend taking some time to sit down and consider what Professor Bradley has written.  He makes some especially fine points in his last paragraph:

"...Abortion is not only the great civil rights issue of our time.  It is the greatest human rights tragedy in America's history.  There are now 55 million people dead by lawful abortion since Roe.  That is a hundred times the number of Americans killed in combat during World War II.  That is many millions more than all the persons enslaved in the course of American history.  In abortion, a person is killed outright.  But law is for persons, not the other way around.  Persons are the point of law; law is their servant."

Let us pray that the day is near when the law finally recognizes the personhood of every man, no matter whether he has yet to be born or is reaching the end of his life.  Until then, we may continue to increasingly restrict the practice of abortion, but we'll never be able to reclassify it for what it is -- the murder of an innocent human being.

Donaghy's Admiration of Wonka

Despite the apparent unpopularity of NBC's Thursday night comedy line-up, I remain a huge fan of "The Office," "Parks & Recreation," and "30 Rock."  Tonight, I especially enjoyed the second-to-last episode of the latter.  Next Thursday will be a night of complicated emotions.  It'll be sad to see Liz Lemon and the rest of the gang wrap up TGS, but I recognize that "30 Rock" has outrun its viability as a popular comedy.  Everyone, it seems, has lost interest.

Jack Donaghy is my favorite character.  I'd still watch the show if it only consisted of Alec Baldwin doing monologs!  Donaghy had an especially funny line last night, which inspired me to head straight to a meme generator and cook up a little Internet fun.  Apparently, though, I'm not technically adept enough to post the image...the website won't allow me.  This is the link.  And here is Donaghy's line and a Wonka photo, just for context:

"I do admire Wonka.  He's a true capitalist.  His factory has zero government regulations, slave labor, and an indoor boat.  Wonderful."

Of course, the suggestion that "slave labor" or unbearable working conditions have anything to do with real capitalism is ridiculous.  And as von Mises et al would quickly complain, there has never actually been such a thing as laissez-faire put into practice.  But the part about the indoor boat?  Probably true.  Ah well, even the hardest of libertarians has to be able to laugh at himself, n'est-ce pas?

Justice Scalia Sports Thos. More's Hat

Nearly everyone in law school thinks that Justice Scalia is a curmudgeonly old jurist who has backwards views on just about everything.  And for those students who don't make any special effort in constitutional law to read more than the edited versions of their cases, or to investigate the veracity of the claims of their (frequently) leftist professors, they generally accept that Scalia is just that and more: a racist, a misogynist, and a homophobe.

Curmudgeon or grandfatherly sage?

I have my disagreements with Justice Scalia's interpretive methodology.  On the whole, I agree that textualism is a helpful way of approaching most fields of law.  It is difficult, for example, to divine the intended purpose of legislation.  At the same time, I ardently believe that constitutional interpretation must be grounded in something a little more substantive and normative.  Moral philosophy, despite what Justice Scalia believes, has some place in how we read our Constitution, since the documents ambiguous terms refer to a motivating ideology, and not just concrete historical conceptions of "process," etc.  Scalia and Bork's insistence on ignoring the Ninth Amendment, for example, is unfortunate.

I digress.  Yesterday, at the Presidential Inauguration, the aforementioned Associate Justice sported a striking chapeau.  Apparently, it was a gift from the St. Thomas More Society of Richmond, Virginia.  I say, Bravo!  It is an awesome hat, and has meaning beyond its practical purpose.  (It was rather cold on Monday!)

Over at First Things, Matthew Schmitz called Scalia's headgear a "martyr's cap."  Hmm.  But, of course, he impliedly suggested something even further:

"Wearing the cap of a statesman who defended liberty of church and integrity of Christian conscience to the inauguration of a president whose policies have imperiled both: Make of it what you will."

The humor of readers at "Eye of the Tiber" knows no limits.  The first comment:

"While white is out after labor day, that hat is a hat for all seasons."

Capital Punishment, Retributive Justice, and the Right to Life

This morning my article on the death penalty was published at "The Bell Towers."  Head over there to take a look at what I have to say.  

I started writing the piece back in December, after reading Thomas Friedman's op-ed in the New York Times.  I've found that many commentators on both the Left and the Right advocate for the elimination of the death penalty.  They frequently base their claims on empirical data and the efficacy of deterrence.  My judgment as to the morality of execution is grounded in a deontological morality.  I believe we can (and should) justify punishment for criminals in retribution, viz. based on moral desert.  Of course, consequentialism is useful in "fleshing" out our concerns and aspirations for how a criminal justice system should be designed, etc.  And concerns about deterrence, incapacitation, and rehabilitation may even need to be part of any responsible retributive theory.


The original purpose of the article was to counter the argument that "pro-lifers" need to advocate for the elimination of the death penalty.  As I explain, I don't see these two ethical dilemmas -- abortion and the execution of criminals -- as analogous.  I try to make the case that opposing abortion and supporting the death penalty are not contradictory positions.


Sidebar: I've always been concerned by the perception of many Catholics that the Church teaches the death penalty to be morally and theologically "wrong."  Officially, the Church has not changed its traditional teachings on the matter, though I do believe that there has been a definite change in emphasis.  John Paul II, of blessed memory, argued, for example, that the death penalty was an affront to human dignity.  Yet, despite what many American Catholics think, the Holy Father didn't actually advocate eliminating the practice.  (I have a few problems with Evangelicum Vitae's discussion of capital punishment, some of which I hint at in the "Bell Towers" piece.)


After my friend, Kathleen Hunker, wrote an article about the possible moral objections to executing James Holmes, I scrapped some of what I was doing with my argument and tried to draft something of a response to her claims.  I like what I've written, but I warn you: the article is only cursory and is not meant to be an exhaustive examination of the moral and legal issues implicated in any discussion of the death penalty.  


The article does do a fair job at representing my own position, but I think I could have more heavily emphasized the practical concerns of having the State execute individuals.  As a libertarian, for example, I highly distrust the State.  Indeed, I like to consider myself something of a "philosophical anarchist," although I suppose I'm actually a "minarchist."  I find it hard to accept the idea of completely discarding the criminal justice system.  (Mind you, drastic reform is needed!)  Together with my retributive theory of justice, I'm something of an outlier among libertarians on these topics.


Sidebar #2: Murray Rothbard, in The Ethics of Liberty, did speak of the possibility of a death penalty in an anarcho-capitalist system of competing, voluntary legal orders.  I won't go into his argument here, but he basically conceptualizes the death penalty as being a sort of maximum punishment in certain instances. I agree with Rothbard.  As I try to imply in the article, the prudent use of execution does not require its employment in all cases.  Just because someone is deserving of death, whether morally or legally, does not mean they should be so sentenced.


I find it an entirely "separate" question as to whether the criminal justice system is legitimate, then as to whether we can justify the death penalty.  I end the article with a caveat, which encapsulates my point here: "[W]hen those criteria [for applying the death penalty] have been met, and the State’s justice system has been shown to have acted legitimately and fairly, and we are as certain as is humanly possible that guilt has been demonstrated, then I fail to see any convincing moral or philosophical impediment to carrying out an execution." (emphasis added)  Insofar as the prosecutor, the judge, and the jury -- and any other relevant political institution -- has acted in such way as not to cast doubt on a criminal justice system's legitimacy, i.e., to call into question our legal and moral obligation to obey and abide by its results, than execution can be implemented.