Bonica and Klein on Adam Smith on Reputation, Commutative Justice, and Defamation Laws @mbonica @GeorgeMasonU

Mark Bonica, University of New Hampshire, Health Management and Policy, and Daniel B. Klein, Department of Economics, have published Adam Smith on Reputation, Commutative Justice, and Defamation Laws as GMU Working Paper in Economics No. 19-24. Here is the abstract.

We explore two issues in reading Smith. The first concerns whether he thought that “one’s own” as covered by commutative justice included one’s reputation. Several passages point to the affirmative. But reputation is left out of Smith’s “most sacred laws” description of commutative justice. Moreover, so much of reputation—e.g., “Steve’s work stinks”—does not fit Smith’s description of commutative justice’s rules (precise and accurate). Our reading makes use of older terminology from Pufendorf, Carmichael, and Hutcheson distinguishing “simple” and “intensive” esteem, and suggests that the “reputation” that sometimes appears is of a simple variety (“Steve steals horses”) that potentially incites invasion of commutative justice’s three staples—person, property, promises due. On that reading the “reputation” that comes under commutative justice would be adjunctive to the three staples. Our reading also recruits Hume, who nowhere even hinted at reputation being a constituent of commutative justice. The second matter explored is Smith’s policy inclination about defamation laws (libel, slander) as they would pertain to intensive esteem. By our lights, were Smith to favor intensive-reputation defamation laws (against, say, “Steve’s work stinks”), we would have to count that as another exception made to the liberty principle. Smith’s remarks are mixed, but we think he was rather inclined against aggressive or extensive laws of such kind. (Also, we draw a parallel to patent and copyright.) Looming behind our discussion is the question: Why did Smith leave us with contrarieties and unclarity? We figure that if Smith thought that wantonly telling malicious lies like “Steve’s work stinks” was not a violation of commutative justice and, moreover, is best left perfectly legal, those are judgments that the liberal project’s great prophet would hardly want to make plain, because indifferent readers would misunderstand them and adversaries would misrepresent them.

Download the paper from SSRN at the link.

Early Modern Ideas of Legal Pluralism

Richard J. Ross, University of Illinois College of Law & University of Illinois, Urbana-Champaign Department of History, and Philip J. Stern, Duke University Department of History, have published Reconstructing Early Modern Notions of Legal Pluralism in Legal Pluralism and Empires, 1500-1850 109-141 (Lauren Benton and Richard J. Ross, eds.; New York: New York University Press, 2013).

Legal pluralism occurs when two or more legal orders exert control within a given territory or over a particular social group and yet are not part of a single hierarchical “system” under a coordinating authority. Most historical scholarship on legal pluralism concentrates on its shifting structures in local contexts and on its political and economic implications. By contrast, our essay probes historical actors’ uses of political and religious thought to justify or undermine plural legal regimes in the late sixteenth through early eighteenth centuries. Historians of early modern political thought preoccupied with the rise of the modern state have lavished attention on ‘centralizing’ discourses, particularly theorists such as Bodin, Hobbes, and Pufendorf represented as champions of sovereignty. Against this tendency, we emphasize how ideological support for plural legal orders could be found in a wide range of intellectual projects. These ranged from debates over the right of resistance and the divine right of rulers, through historical work on the ancient Jewish commonwealth and theological disputes over which precepts “bound conscience,” and finally to writings on political economy and the place of family.

Social scientific and jurisprudential work on legal pluralism has focused a set of canonical problems. Should we focus on jurisdictional or normative accounts of pluralism? How can we distinguish the “legal” from the “non-legal,” a dispute that centers on whether to include in pluralist models the norms of families and civil society organizations? How can we model the complex dialectic relation of state and nonstate systems of order? To the extent that this work relies on a historical account spanning the sixteenth through eighteenth centuries, it assumes that a once rich medieval legal pluralism withered as European statebuilding consolidated crown control of law with the ideological support of theories of sovereignty. The intellectual foundation for — if not the practice of — legal centralism arose in this period. The frequent invocation of Bodin, Suarez, Grotius, Hobbes, and Pufendorf as the founding theorists of sovereignty and legal centralism creates the impression that pluralistic thinking was impoverished or on the wane. The central ambition of our article is to provide an alternative historical genealogy for legal scholars of pluralism. Workaday legal pluralism did not struggle against a predominantly hostile intellectual climate. Many discourses supported pluralism. And the most emphatic theorists of a powerful singular sovereign were often responding to intellectual projects that valorized pluralism.

Download the essay from SSRN at the link.