What Do Statutes Do?

On the Poverty of Legal Libertarianism

On October 16, the Petitioners in Loper Bright Enterprises v. Raimondo - the case¹ in which the Supreme Court will decide whether to overrule Chevron deference to agencies - filed their Reply Brief. There is a running theme in the brief that distills the current assumptions of American legal libertarianism, which masquerades as legal conservatism. The theme is that Chevron “deprive[d] citizens of a clear demarcation as to where government power left off and individual liberty began” (p. 6). In one passage, for example, the brief says that the government’s position “abdicat[es] the responsibility to fix the meaning of a statute by which the government purports to limit the liberty of its citizens in the first instance…. The sensible and venerable rule in the first instance is that when it comes to ambiguous statutes, the tie goes to the citizenry” (p. 9).

The second half of this passage implies a picture of individual citizens as competitors to and opponents of their own government, complete with sports metaphor — a picture that also underlies Philip Hamburger’s flawed claim that Chevron deference to agencies makes one of the players into the referee, thereby contradicting due process principles. As I have argued elsewhere on this substack, such views in fact contradict the legal presumptions inherent in area after area of our public law, presumptions that rest on an entirely different picture of representative government as a means by which citizens as a body accomplish public ends. Here I will focus on the first part of the passage, and indeed the general theme of the brief, which assume a particular account of what statutes do: the essence of statutes is that they “limit the liberty of citizens.”

That account, although common in recent iterations of American legal libertarianism, is both conceptually and historically impoverished. The classical legal tradition has a far richer and more pluralist conception of statutes and their functions. Consider a famous passage from the Digest of Justinian (1.3.1), recording Papinian’s definition of lex, that is, written law: “Lex est commune praeceptum, virorum prudentium consultum, delictorum quae sponte vel ignorantia contrahuntur coercitio, communis rei publicae sponsio.” In Alan Watson’s translation: “A statute is a communal directive, a resolution of wise men, a forcible reaction to offenses committed either voluntarily or in ignorance, a communal covenant of the state.”

Papinian here explains that statutes represent not only and not primarily coercive limits on liberty, but communal directives that embody regnative prudence and wisdom, communal covenants for public purposes. Such enactments may or may not have a coercive function, but may also have coordinating functions, enabling functions, constitutive functions, and educative and directive functions. They represent what the citizens of a commonwealth (res publica) do and create as a body, not merely as individuals, in order to accomplish common ends and to memorialize and indeed celebrate the values inherent in those ends. To see statutes solely from the perspective of an individual in opposition to the menacingly coercive state is to assume an alienated picture of the relationship between citizens and government; it is to assume that the state is an alien force of mysterious origin, standing over and above the individual, rather than a vehicle for communal achievement and public ordering.

As so often, the classical account in fact gives a better, more accurate, more complete and convincing picture of our own law today than does the narrower and thinner libertarian account. Across the vast domain of federal statutes that delegate interpretive authority to public tribunals, many or most are not best viewed as narrowly coercive (except perhaps in the collateral sense, common to government in general, that they are ultimately funded by taxation). To see the massive Social Security system, for example, or the system of veterans’ benefits, as exercises of coercive power over individuals is in some basic way to miss the point of those programs, which more fundamentally create public benefits and state and pursue public values — promoting the dignity of old age, of work, and of the highest forms of public service. So too, the statutes that create and implement systems of national highways, or air traffic control, or national defense, or public lands and parks, constitute and provide public goods that improve the lives of the citizens as members of a polity, a communal enterprise, not merely as atomized individuals.

One such public good is what Congress called the “health and stability” of commercial fishing, at issue in Loper Bright. The Magnuson-Stevens Fishery Conservation and Management Act, whose interpretation gave rise to the case, declares that a “national program for the conservation and management of the fishery resources of the United States is necessary to prevent overfishing” and “to realize the full potential of the Nation’s fishery resources.” The Act, in other words, is an effort to prevent a tragedy of the commons that ultimately makes not only the public, but even individual fishermen, worse off in the long run. To focus myopically on the element of the program that coerces individual fishermen is to miss the basic problem of collective action at issue, a problem that threatens the very possibility of being a commercial fisherman at all, and hence also threatens the liberty of the individual fishermen themselves. An ordinance that bars vandalism or littering in public parks may, narrowly speaking, limit the negative liberty of individuals, but it is also enabling and empowering, making it possible for those very individuals to enjoy the full aesthetic and recreational benefits of clean and attractive public spaces. It thereby creates a kind of positive liberty, a capacity of individuals that would not otherwise exist.

As the example shows, the libertarian picture has an impoverished view even of the liberty of the individual. It is a central tenet of the classical view that enriching public and communal capacities also benefits individual citizens, enhancing their own capacities and hence positive liberties. The libertarian picture misses what the classical picture captures: because statutes often have enabling and constitutive functions, as well as coercive ones, they bring into being new public structures and capacities, enriching the effective powers of the commonwealth and of its citizens even as individuals. To paraphrase a dictum of Marcus Aurelius, what benefits the hive also benefits the bee.

Imagine someone stating the view that railroad tracks are “coercive” because they limit the freedom of the passengers to travel in any direction they please. The proper response to such a view would be to stare in puzzlement; the proponent of that view would simply have missed the point that tracks are what make railroads, with their benefits for individuals and increased capacities of individuals, possible at all. The libertarian view, in many cases, rests on the same sort of puzzling fallacy, one that the classical picture of the enterprise of creating written law never indulged in the first place.

1. Consolidated with another case, Relentless Inc. v. Department of Commerce.