The next couple of days I expect to return to discussing Randy Barnett's Restoring the Lost Constitution. There are a number of points made in Chapter II I think worth commenting on. To keep this readable, let me do them in pieces.
At 42 Barnett claims that jurisdiction of lawmakers over individuals need not be allocated on the basis of geography. The idea is that one can join organizations whose membership is organized on other principles, for example, professional affiliations or civic or artistic interests, etc. Barnett traces this thought to Fuller (or, more accurately, says that he is following Fuller in this regard.)
There is a sense in which this idea trades on ambiguity. There is no reason to doubt that a variety of rule-making organizations exist and exercise their authority (whatever that may turn out to be) over constituencies which are not identified primarily by geographic delimitation. One can be a member of an international organization (PEN, say) or an organization based on professional activities or personal interests. Such organizations can institute and enforce rules. If the sense of ‘lawmakers” is limited in that way, meaning someone authorized to issue or enforce rules, then Barnett’s point surely is uncontroversial. It is also not very helpful to the topic of the book, and, at least as important, not accurate about law making. Professional organizations do not normally institute or enforce the law. As far as I can tell, the North American Kai Association is not a law-making body. It has rules, to be sure, but rules are not laws. It can and does enforce its rules, but that is not law enforcement. Similarly, FIFA has rules and enforces its rules, as does the NBA. It is a rather surprising suggestion that breaking the rules of the NBA (by calling the referee a jackass when talking to a reporter) is a violation of law. Or, to be more direct, the suggestion is unworkable and seriously misguided. One of the reasons there are so many organizations of these kinds is that what they enforce are not laws.
It is true, I think, that they are rule-making bodies and rule-enforcing bodies. Rules are not tied in any strong way to geography. I would also be inclined to accept the idea that examination of and attention to the variety of rule-making bodies and associated practices can be and has been informative concerning philosophical analysis of law. But families have rules as well, and it would not be helpful to suppose that disobedience to a parent is illegal.
To be sure, Barnett’s underlying point seems to be that these voluntary associations are in contrast to actual law-making in the sense expressed by this new appellation, namely, they are voluntary, i.e., consensual. As a general matter, that is a point worth attending to, and a useful way of describing the associations. But, returning to the close of the preceding paragraph, voluntary associations and governments do not exhaust the rule-making taxonomy. There are other non-voluntary institutions which do make and enforce rules. Families are one example. There are a host of other activities, including relatively well-developed and formal institutions which qualify as rule-making in this sense which are not voluntary and are not governmental. Many involve minors, who have little in the way of consent as to their participation in and subordination to the institutions, for example, schools, but they are still rule-making institutions. For adults, the horizon between membership in NAKA and citizenship is not as easily divisible in non-arbitrary segments as seems supposed by the contrast between government and dining club. (The latter point I am confident Barnett would accede to.)
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