Hoppe’s "paper law": a post-modern view?

Today’s daily article on Mises.org, Hoppe’s “On the Impossibility of Limited Government and the Prospects for a Second American Revolution,” reminded me of a section in Walter Truett Anderson’s book Reality Isn’t What It Used To Be.  Both Hoppe’s mention of “paper law” and his statements about the Constitution parallel Mr. Anderson’s thoughts.

Mr. Anderson’s book is a post-modern commentary on today’s society (actually on 1990’s society as it bears a 1990 copyright).  And in true post-modern style, the book is a devastating commentary on the plethora of myths that our modern society acts upon every day.  Much of the book is insightful, incisive, and right on the mark: Mr. Anderson sweeps away many pre-modern and modern myths, most of them created by political and religious demagogues.  Unfortunately, also in post-modern style, the book provides no replacements for those myths but ends with a typical post-modern whimper about myths being here to stay.  (Mr. Anderson, meet Mr. Hoppe!)

The fourth chapter of Mr. Anderson’s book is entitled “The Meanings of Literature,” which summarizes the post-modern emphasis on (and methods of) textual deconstruction.  The section of the chapter that caught my eye is entitled “Deconstructing Law”; the section opens with a choice quote from Harvard Law professor Clare Dalton: “Law, like every other cultural institution, is a place where we tell one another stories about our relationships with ourselves, one another, and authority.”  The next paragraph mentions Ms. Dalton again, along with the results of her insight: “Ms. Dalton, who was denied tenure.”  Poor Ms. Dalton actually followed the Harvard motto, and we see where it lead her.

I would like to quote all five pages of the entire section, but suffice it to say that the rest of the section reveals how various modern mandarins of law are trying to suppress the growing realization that most law is merely paper.  The first example: Harvard Law emphasizes the scientific study of law, “a method, sometimes called the doctrinal approach, which looked on the law as something like a science.”  (Harvard Law, meet Mr. Mises.)

Another example: “Paul D. Carrington, dean of the Duke University Law School, said all [Critical Legal Studies] law teachers were morally bound to resign, because it is immoral to teach a subject in which one does not believe.  Is it appropriate, he asked, for an atheist to teach religion?”  (Mr. Carrington, are you really saying that one should “believe” in law?  Is law a matter of faith for you??  Really??  So who should be resigning?)

The last example throws Hoppe’s view of the Constitution into sharp relief: Judge Bork’s book about his denied confirmation to the US Supreme Court.  In his book, Judge Bork decries the excesses of the Warren court, and calls for a return to the “original understanding” of the intent of the authors of the Constitution.  Mr. Anderson isn’t buying it: “Although the conflict [Judge Bork] describes is certainly going on, I don’t think the picture is as black-and-white as he paints it.  We are not faced with a choice between return to governance in the mode of Judge Bork and his friends at the American Enterprise Institute, or a blind leap forward to governance in the mode of deconstructionist law professors – and it’s a mighty good thing we’re not.  The conservatives do not appear to know that their rock-of-ages understanding of the Constitution is a social construction of reality …”

Unfortunately, once again, Mr. Anderson ends with a whimper: “Does that mean that Constitutionalism is dead?  I don’t think so.  I note that even Professor Levinson says he is willing to make a ‘limited affirmation’ of faith in the Constitution.  It is one of the things that holds American society together.  The country has not yet reached the time when it can do without one, and I suspect it is well past the time when it could create a new one.  If we had the new constitutional convention that some desire, bringing together a nationally representative group of framers, could they create an organic document?  I seriously doubt it.  I doubt that we could even get one out of a smaller gathering – I doubt, in fact, that you could get a decent bill of rights out of the Harvard law faculty.”

So post-modern thought seems to argue for Mr. Hoppe’s thesis, which is good since our world is more post-modern every day.  Unfortunately, while Mr. Anderson makes many great points, his world-view is not sufficient to offer strong solutions.  Post-modern thought is not strong enough to carry the day, but merely to show the need for a resolution to the crisis of government.  But all journeys out of addiction start with the first step: realizing the need.

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