What is just?
Distortions of legal principles have left many losers and a few special-interest “winners” at the expense of others. Misplaced complexity of theory and a wrote bureaucratic mentality in applying legislative dictates have turned “law” into an upended caricature of itself—a system by which rights are violated systematically and institutionally.
Meanwhile, the fundamental questions of what justice is and how it can best be promoted are addressed through academic jurisprudence. Yet the questions are often approached in law schools as a sort of philosophical training-wheel exercise grounded in irresolvable debates and eternally impossible mental puzzles. This training tends to leave the impression that the meaning of justice, if it can be ascertained at all, must arise either from whatever the state says is just (the various positivisms) or from various aspects of the nature of things (natural law/natural rights).
A third way
A third option is capable of finally reorganizing our conceptions of the proper roles of justice and the legal realm from the ground up. This approach forms an internally consistent set of legal concepts that derive from the analysis of human action itself. I have termed this approach "action-based jurisprudence."
This new organizing structure overcomes enduring weaknesses in both positivistic and natural law approaches while also resolving some of the famous long-running debates of jurisprudential discourse. In many such long-running binary debates, the ultimate resolution involves recognizing how both "sides" are usually right on some things and wrong on others. A third perspective is often needed to arrive at a resolution by providing criteria with which to separate the contributions from the errors in existing material.
The validity criteria of action-based jurisprudence are independent of any given system of positive law and any particular vision of what constitutes the "natural." It forms a system of knowledge, as contrasted with mere variations of opinion, influence, or might. Yet it also sets up a framework capable of addressing all the complexities and variations of real life and culture on a global and local scale.
- Defines a crisp, non-arbitrary division of labor between theory and practice;
- Disentangles the ethical and legal realms, which have remained deeply confounded; and
- Differentiates the legal realm into sub-disciplines that are distinct in domain and method.
These sharper differentiations enable both ethics and the legal sub-disciplines to each function more effectively, supporting improved respect for both authentic law and authentic ethics. The opposite implies a vicious cycle of 1) poisoning practice by applying ever-shifting quasi-principles and 2) distorting theory out of a short-term fix-it mentality.
To learn more, my initial treatment of this topic was, “Action-Based Jurisprudence: Praxeological Legal Theory in Relation to Economic Theory, Ethics, and Legal Practice” (2011) [PDF or DOC]. Additional work in progress elaborates on the implications and seeks to make these ideas more accessible. A preview of some of these new directions is visible in this transcript from a talk I gave in 2012 in Sydney, Australia.
A more recent book applies action-based jurisprudence to the legal-theory analysis of Bitcoin. Are Bitcoins Ownable? Property Rights, IP Wrongs, and Legal Theory Implications (6 Nov 2015) [Amazon] [Other versions] examines the relationship between property rights theory and bitcoin. It references leading philosophical justifications for property rights as well as leading criticisms of IP rights in examining the unique characteristics of bitcoin in terms of legal conceptions such as ownership, theft, hacking, and liability for damages. It also uses the fresh example of bitcoin to further clarify and sharpen the philosophical foundations of property rights theory.
Some other articles and posts related to action-based jurisprudence include:
“Misesian action theory is an approach to social theory, not just economics” (20 February 2013)
“Bank robber chatting with Bill Murray illustrates self-control theory” (10 February 2013)
“Action-Based Jurisprudence II: Down under (and back again) (1 February 2013)
“The problem with shouting “Tyranny!” in a crowded theater” (25 August 2012)