Ever since I was in law school I’ve been irritated at various circular arguments used to justify various laws, policies, or legal rulings. A good example is the notion of “detrimental reliance,” which is sometimes used to justify enforcing a contract. The question arises: why should a promise be enforceable? The answer? Because the promisee reasonably relied on it to his detriment, so that if the promise is not enforced, then the promisee would suffer damage. Of course the obvious response is that the “reliance” is reasonable only if promises are legally binding in the first place–hence the circularity. (For more on this, see La. Civ. Code Art. 1967; my Punishment and Proportionality: The Estoppel Approach, n. 14; Randy E. Barnett, A Consent Theory of Contract, pp. 274-76; and George Fletcher, Paradoxes in Legal Thought, p. 1269, and n. 30. For an example of a libertarian who makes this mistake, see my review (p. 140) of Patrick Burke’s, No Harm: Ethical Principles for a Free Market.) The right approach is the libertarian Evers-Rothbardian “title transfer” theory of contracts, rather than the “enforceable promises view” (see my A Theory of Contracts: Binding Promises, Title Transfer, and Inalienability).
In law school and grad school I used to make notes in the margins of cases and books when I encountered these, but unfortunately have lost them. I had a dozen or two. I remember there were some in International Business Transactions. Another had to do with the patent law concept of “file wrapper estopppel” (don’t ask). I remember some in the UCC courses, some in bankruptcy, lots in torts. And many in constitutional law–e.g., regarding the 4th amendment right against search and seizure, if I recall, the Supreme Court’s jurisprudence, in order to determine whether someone’s “privacy” is breached, asks whether someone had a “legitimate expectation” of privacy. Circular! In modern-day FISA America, citizens do not really have such an expectation, because they know the nature of their government. Why should the way things are be some sort of indicia for the way the Constitution commands they should be? (If any law students or lawyers or others remember or come across other examples, please post them in the comments.)
It’s unrealistic to expect mainstream legal statist-positivists to adopt libertarian reasoning, but I would prefer if they would simply honestly say it’s just an arbitrary decree or decision, rather than pretend they have a real justification for the policy or decision.
Update: another example, as noted here:
Justice Anthony Kennedy put his finger on a deeper problem with this argument yesterday when he called the government’s reasoning “circular”: We license broadcasters so we can regulate them, and we can regulate them because we license them. Instead of treating broadcasting rights as transferable property, the government chooses to give broadcasters revocable licenses and then cites that decision as grounds for further meddling. By similar logic, the government could nationalize the paper industry or the silicon chip industry, then use the resulting power to dictate the content of newspapers or websites.