The Only Legitimate Rule

Is autonomy “natural”? In Ecolawgic: The Logic of Ecosystems and the Rule of Law, I argue that a legal system of intrinsic neutrality is one over which no political office or branch of government has control and in which individuals have the autonomy to pursue their own interests. In “Autonomy in the Anthropocene”, the preceding article in this issue of the Dalhousie Law Journal, Professor Jason MacLean challenges the thesis of Ecolawgic. MacLean argues that autonomy is not a feature of neutral legal systems but a product of cultural norms and regulation. He maintains that Ecolawgic’s prescription provides neither optimal economic outcomes nor effective environmental protection. The purpose of this article is to reply to MacLean’s critique and to argue that there is only one legitimate rule to govern legal relations between competent adults. In the wild, organisms compete for scarce resources. Those organisms better adapted to conditions survive and reproduce. Their interactions constitute ecosystems. No legal rules govern behaviour and might is right. Human beings trade spontaneously. Parties enter into transactions when they perceive themselves as better off to trade than to fight. Their transactions constitute markets. Moral values and policy goals express preferences whose inherent validity cannot be established. Laws based upon those preferences lack legitimacy. Where governments use might to impose laws and policies that are illegitimate, they unintentionally imitate ecosystems, where might is right. Political constituencies use whatever means necessary to impose their preferences, and their opponents use whatever means necessary to resist. They are “autonomous” in the ecosystem sense: there are no inherently valid restrictions on behaviour. The result is a social order of division and conflict. The alternative is to model human governance on the other system that exists independently of state preference: markets. If the model for human governance is markets, interactions between people are voluntary. People are “autonomous” in the market sense: they may pursue their own interests without coercion. Instead of imposing illegitimate rules and policies, the state uses force only to prohibit the use of force. A plethora of sub-rules follow as corollaries of the rule against coercion: property, consent, criminal offences that punish violence and so on.There is no third choice. Coercion is not right or wrong depending upon the goals being pursued since those goals are merely preferences. Their advocates cannot establish that their goals have inherent validity to those who do not agree. Therefore, giving priority to those objectives is to assert that might is right. If might is right, we are back to ecosystems, where any and all actions are legitimate.If might is right, anything goes, and the model is ecosystems. If might is not right, coercion is prohibited, and the model is markets. Choose one and all else follows.

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