24 January 2009

The pluriformity of legal spheres

For the past half millennium, since the rise of legal positivism, i.e., the belief that law is rooted in a sovereign legislative will, the popular mind has simply assumed that all law is a creature of the state. The Reformed Christian concept of sphere sovereignty and the Catholic principle of subsidiarity have been part of a larger effort to combat this statist conception. Seemingly following this tradition, John E. Coons writes In Defense of the Sovereign Family, an essay worth reading. Coons writes:

The original form of the American Constitution may be read as reserving to the individual states the authority to occupy law’s entire province, minus the federal fraction. But language expressly limiting the range of governmental law entered the national text in 1791, as nervous founders added the Ninth and Tenth Amendments in the Bill of Rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The most obvious aim of these reservations was to create a hedge against tendencies to monopoly not by the states but by the new federal regime. But, in doing so, they also by implication limited the power of the states to occupy all of the remaining range of lawmaking. Given the references to “the people,” it is hard to read these texts as an invitation to a local monopoly by, say, Oregon or Wisconsin. The people hold ground of their own in both amendments. The word or in the Tenth Amendment even makes the individual state and its people competitors in the creation of law, suggesting that the two could exercise their powers contrarily within the uncharted zone.

This is not, of course, a matter of the US Constitution creating space for so-called civil society to exercise its proper jurisdiction. Rather, the document merely acknowledges the prior existence of such space: "The Constitution contains a clear textual recognition that ideas—and even rules—about the common good can originate outside the state and be entitled to dignified reception (“not . . . disparaged”) when presented for recognition as law" (emphasis mine). Coons continues:

A clear judicial recognition that parents are an independent source of law for their children—making and enforcing commands that no state or federal government can preempt or forbid—would have profound practical consequences. In the years to come, conflicts between agencies of the state and parents are likely to increase, and courts will be asked, more and more, to reexamine the limits of the parentocracy. Wealth and improving technology will constantly present new options for parents. The educational versatility of the Internet is making homeschooling easier and more attractive, for instance, letting more parents remove their children from the direct influence of the public-school system; already advocates of conscriptive public schooling worry that these children will not be properly socialized and given correct information about sex, medicine, the environment, or what­ever these advocates feel they need.

The significance of all this, however, depends less on who wins particular cases than on which of two master images dominates the consciousness of the nation’s judges: the image of delegation to parents from the monopoly state, or the counterimage of a sovereign parentocracy.

The former is the vision of legal positivism while the latter is the vision of what might be called the pluriformity of legal sphere, as articulated in sphere sovereignty and subsidiarity.

It is by no means coincidental that the widespread acceptance of legal positivism has produced a climate in which governments claim the right, not simply to adjudicate the boundaries of such essential institutions as marriage and family, but even to redefine them outright. Ironically, it is the very liberal individualism that would reduce such institutions to mere voluntary associations that calls upon the state actively to support this reductive vision. Over the long term individualism leads inexorably to statism.

If, on the other hand, these institutions exist, not only apart from the will of government and the wills of constitutive individuals, but as genuine spheres of law rooted in something beyond the human will, then government is obligated to respect their spheres of legal competence and to refrain from interfering in their internal life unless absolutely necessary to the doing of public justice. But this requires that the state abandon the "master image" of its own legal omnicompetence.

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