Balkinization: John Dewey on Liberty as Efficiency and Law as Force

John Dewey on Liberty as Efficiency and Law as Force

Brian Tamanaha

Every now and then I read something that makes me sit up and want to tell others that they have to take a look at it (hence this blog posting). That was my experience with a now mostly forgotten essay on law by John Dewey, "Force and Coercion," 26 Int. J. of Ethics, 359-367 (1916). The final two paragraphs of this startling essay, set forth below (with brief comments), provide a flavor of the piece:

In other words, the question of the limits of individual powers, or liberties, or rights, is finally a question of the most efficient use of means for ends. That at a certain period liberty should have been set up as something antecedently sacred per se is natural enough. Such liberty represented an important factor which had been overlooked. But it is as an efficiency factor that its value must ultimately be assessed. Experience justifies the contention that liberty forms such a central element in efficiency that, for example, our present methods of capitalist production are highly inefficient because, as respects the great body of laborers, they are so coercive. Efficiency requires methods which will enlist greater individual interest and attention, greater emotional and intellectual liberty. With respect to such a liberation of energies, older and coarser forms of liberty may be obstructive; efficiency may then require the use of coercive power to abrogate their exercise.

This passage should be understood in the aftermath of Lochner (about which lots is now being written by academics), and more immediately in the context of battles over the use of labor injunctions to halt strikes. In the above passage Dewey transforms legal rights into questions of efficiency for social ends (ala Posner?). In an earlier passage, Dewey suggests that illegal means--striking--may be justified when that is a more efficient way to achieve social ends.

The final paragraph should be understood in the broader context of ongoing debates over US participation in World War I (Dewey departed from his pacifist friends to support participation):

The propositions of this paper may then be summed up as follows: First, since the attainment of ends requires the use of means, law is essentially a formulation of the use of force. Secondly, the only question which can be raised about the justification of force is that of comparative efficiency and economy in its use. Thirdly, what is justly objected to as violence or undue coercion is a reliance upon wasteful and destructive means of accomplishing results. Fourthly, there is always a possibility that what passes as a legitimate use of force may be so wasteful as to be really a use of violence; and per contra that measures condemned as recourse to mere violence may, under the given circumstances, represent an intelligent utilization of energy. In no case, can antecendent or a priori principles be appealed to as more than presumptive: the point at issue is concrete utilization of means for ends.

Now that's a clear-eyed (cold, calculated) view of the law.

Posted 11:21 AM by Brian Tamanaha [link]

Comments:

I assume you mean "World War I" not "World War II", no?

# posted by

Anuj Desai : 8:43 PM

it's unclear to me whether mr tamanaha is quoting these passages disapprovingly, but if so he might find the discussion of kelsen's pure theory of law as described in posner's book LD&P relevant. assuming (as kelsen does) that force is an inescapable component of law, one can interpret the passages in a positive light (at least this layman can).

it is also unclear to me whether the "ala posner" aside was intended to be snarky, but if so I would suggest that he may misunderstand posner's position on the role of economics in law. again I refer him to LD&P, especially chapter 2, in which he emphasizes that economics is only one of many factors to be considered in pragmatic adjudication.

if neither "if so" is so, my apologies for misinterpreting.

# posted by

Charles T. Wolverton : 11:10 AM

Thanks for the correction anuj--that was WW I.

CTW, to clear up the record: I am a fan of Dewey. I believe law is fundamentally a coercive apparatus of state power, which can be used for good or evil--that makes me a hard core legal positivist. This essay from Dewey makes the point without flinching.

My reference to Posner was not meant to be "snarky," but rather was intended to point out the parallel. My sense is that many fans of Dewey's pragmatism are not fans of Posner's pragmatism. You are right, by the way, that Posner the pragmatist tempered his early single minded emphasis on economic analysis.

# posted by

Brian Tamanaha : 12:04 PM

tnx for the clarification. my concern that the posner aside might have been snarky is due to having encountered both leftists and rightists (eg, at the VC) claiming posner to be an arch conservative. hence, as a left-centrist who is a huge fan of his, I often dispute such claims.

# posted by

Charles T. Wolverton : 1:31 PM

Efficiency is the enemy of inquiry.

# posted by

D. Ghirlandaio : 9:51 PM

The homogenization of thought.
Efficiency presumes a specific goal, not a general
one. It is to be efficient about something.

Inquiry presumes little, and free inquiry presumes nothing. The quote above is progressivism as vulgarity (and Posner as a thinker is simply grotesque.)

To know that we all must eat is not automatically to argue for an ideology of food, any more than to know that we breathe leads us to an ideology of air - or that we tend to covet to one of greed. Nothing like an intellectual to transform the mundane into the banal.

From the left or right that is from Burke or Wm. Blake, this shit sucks.

# posted by

D. Ghirlandaio : 12:19 AM