The Collapse of American Legal Authority

with Steven D. Smith,
hosted by Richard M. Reinsch II

Richard Reinsch (00:19):

Hello, I’m Richard Reinsch. Today we’re talking with Steven Smith about his new book, Fictions, Lies, and the Authority of Law. Steven Smith is the Warren Distinguished Professor of Law, at the University of San Diego. He’s the author of numerous books, including The Rise and Decline of American Religious Freedom, Law’s Quandary, and, he’s been on this podcast… I think this is your third appearance, Steven, so we’re glad that you’re-

Steven Smith (00:47):

I think I might be.

Richard Reinsch (00:48):

… a repeat offender. It was Pagans and Christians in the City, I think was the most recent appearance.

Steven Smith (00:53):

I think we did have a conversation about that one, yes.

Richard Reinsch (00:56):

It’s great to have you back, and you’ve written another provocative book here, Fictions, Lies, and the Authority of Law. So tell us, what’s going on?

Steven Smith (01:04):

Well, the book combines some things I wanted to write about various subjects that are all connected, I think, by the problem of authority and questions of authority. I tried to have a lead into that by quoting Hannah Arendt’s, I think, very intriguing claim that she made about the middle of the last century that authority has disappeared from the modern world. We no longer know what it is. In losing authority, she said, “We have lost the groundwork of the world.” So that’s pretty provocative, but also puzzling and raises lots of questions. So I used that as the way to get into some of these various questions. Some of them are more standard law professor type questions about constitutional interpretation and statutory interpretation, and so forth. Some of them are more straight jurisprudence questions that legal philosophers like H. L. A. Hart and so forth have dealt with. Some of them have to do with things that I think are really on the minds of and kind of worrisome to a lot of people today about cancel culture, living with lies, that sort of stuff, is also the subject of one of the chapters.

Richard Reinsch (02:13):

Yeah. I’ll confess this. So coming to your book, before I started reading it, what got me interested in it and thinking that this could be an interesting interview is just looking at contemporary America right now. We’ve got this heavy movement, we’ve covered it extensively at Law & Liberty, that insists basically America is founded on a fraud. It goes beyond even the old progressive claim that we’re ill-founded, but that we’re just founded on something like slavery and racism, and the perpetuation of that through our institutions. Then, of course, the way in which political claims are debated, or rather not debated, in many respects, in our country and how we label one another as not just wrong, but people we struggle to even dialogue with. Just thinking about right now, this question about masks reemerging with the Delta Variant in certain states, and are masks going to be required and how we deal with people who don’t want to wear masks and vice versa. All of this, I mean, the general tenor of our politics makes me think there is nothing in our constitutional order that we see as transcending heated contemporary differences. Do you see it that way and has that led into what you’re doing in the book?

Steven Smith (03:29):

Yes and no. I think, actually, it’s turned out, with all of the anti-racism concerns and the COVID restrictions and so forth, that there are a lot of ways that the book has immediate applications. More than I thought it would have as I was doing it or even when I was pretty much finished with it, which was I finished writing it really almost a couple years ago, before a lot of this happened. You know it takes a while to get something published. In the meantime, it’s been gratifying and alarming to see that I think there are quite a lot of applications to some of our on the ground current practical concerns. One way to get into that, I suppose, would be to say that our system of government is based on the idea that government has to come from the consent of the governed. That’s a foundational proposition. It’s in the Declaration of Independence. It’s been recited innumerable times over the course of our history. That’s kind of axiomatic in many ways. It’s also a privilege familiar, and lots of people have written about this, that that’s a problematic idea. Do we really have the consent of the governed? I deal with that in what I think is a little different way saying, well, in a certain sense, no, it’s a fiction to say that we have the consent of the governed, but we can have accounts of authority, I think, that can be based on fictions if the fictions are widely believed. I try to combine the consent of the governed idea with the idea that people like John Finnis, but other people have developed a coordination account of authority.

You know that authority comes from the need for coordination, not just punishing offenders and so forth and anti-social criminals and so forth, but coordination that’ll allow us to coordinate for the public good a lot of our projects that we have. So that we have a need for that and the ability, as Finnis and others say, of some group or institution to provide that coordination is the foundation of authority. I find that to be quite a plausible account, but it creates a question of where do people get or where do some person or institution get that ability to provide coordination. The answer, I think, is, at least in part, they get it because we think they have authority. In our system, we think they have authority goes back to the consent of the governed. So the consent of the governed does sort of figure in authority, even if it is, to some extent, a fiction, I think. If it’s a fiction that’s widely believed and beneficial, I think it can be the basis of actual authority. But if the fiction becomes frayed and so forth, there’s discussion, then the authority can disappear. I think we’re seeing real concerns about that just over the last couple of years.

Richard Reinsch (06:24):

What do you think Hannah Arendt meant by the modern world faces the evacuation of authority? What did she mean by that?

Steven Smith (06:34):

She has a long answer on that that traces this back to Roman ideas and so forth. To be honest, I don’t really go into that much because she’s not the only person who has claimed that. I quote several other people who have also said… Søren Kierkegaard for example, and other more recent observers who say that authority has disappeared from the modern world or that it’s very problematic or that we don’t understand what it is. So I say upfront that this isn’t going to be an exegetical sort of work trying to figure out what any person in particular had in mind. But I admit, I use it more as a point of departure to explore. I keep coming back to Arendt’s claim, but I’m still using it less to figure out what exactly she meant and more as a point of departure to consider a lot of things that I mention.

Richard Reinsch (07:25):

I haven’t read or written a lot, but that ground work of the world. I mean, is this some sort of classical-

Steven Smith (07:35):

I doubt she meant what I end up-

Richard Reinsch (07:37):

… classical political philosophy account of reason and politics? I don’t know. Question on consent of the governed though. My understanding, the root of that concept from Harold Berman’s Law and Revolution is monastical reform in the early Medieval Period. The principle being within monasteries, voting amongst the monks on who would be your abbot, what would be the rules that would govern, and the idea being what touches all concerns all and therefore, should receive consent by all. In my understanding, that’s like a natural law root of that, taking man as a dignified being created by God seriously and His reason seriously, therefore, is consent as to what touches him and law. I’ve always thought that’s not someone trying to articulate a fictional account, but maybe a truthful account of who man is and how he should be governed, and then that spreads one account. As Berman documents, that makes its way through a lot of Western legal thinking, in particular in the English Medieval law.

Then it comes out in what I would think of as the good Liberalism and the American founding, as… Then it becomes a more general political teaching. So, I guess, when you describe the consent of the governed maybe as a youthful fiction, I think, or it’s a better fiction than other fictions, but what do you make of that? Then also, a consent of the governed, but in American context would be Republican or representative consent. Not consent of each and every person, but of those who have appointed, so necessarily that’s why the Philadelphia Convention wants state ratifying conventions, not just the state legislatures, because it wants that approval apart just from state authorities. So what do you make of all that?

Steven Smith (09:38):

Good question. A couple points here. One is as far as the genealogy of the concept, I don’t really try to trace that through here. I mean, to the extent, I rely on historical work in this book, it’s more on Edmund Morgan’s, I think, really good book on Inventing the People. He talks about the idea of the people and consent and so forth. But he’s starting with the English Civil Wars in the 17th century, I think, is what he’s mostly talking about and that’s as far back as I go here. But I’m sure the idea does go farther back. Berman’s book, one I’ve relied a lot on for other purposes, but I haven’t really focused on it for this purpose. I do quite a bit of work in the area of religious freedom, and other people do, and trace, you might say, very related ideas way back to Tertullian and so forth, that religion has to be consensual. Those things are not unrelated, I think, to this idea that authority needs to be accepted by… It can’t just be coercively imposed and so forth. So the fundamental idea probably has a lot of roots. It’s also one that I don’t in any way mean to disparage it. I mean, I think it’s a very valuable, and for lots of purposes, it contains real truth.

But just in a couple steps, I mean, the most common objection, I think, though to this as an account of the authority of, say, modern governments like ours is that most of us never really did have an opportunity to consent. No one ever sat us down and said, “Do you consent to be governed by this regime? If so, initial here.” We just didn’t. Theorists who try to make up for that with theories of implied consent or constrictive consent say some good things, and I think even relevant and valuable things, but don’t really supply actual consent by most of us. So that’s why I argue that it’s a fiction. But in explaining how a fiction works, I do say that a fiction will work… It needs to satisfy a couple of conditions. One is plausibility. It doesn’t need to be true, but it needs to be true-ish. You can’t really work with a fiction, even a movie or a book and a big political fiction like this unless it is true-ish. The fiction of the consent of the governed, I think, is quite true-ish for our system, but its plausibility does hinge on things like voting rights and freedom of speech. These are all, I think, very valuable things.

So it’s a fiction that, though it is partly fictional, that’s had, I think, very beneficial effects. It’s an ennobling fiction, you might say, and one that works to make government, I would say, better, more enlightened, and so forth than it would be coming from some other fiction. For example, the parties for the vanguard of the Proletariat, for example, and it’s going to lead us to the revolution. So it’s a very valuable fiction in that sense. Again, by fiction, I try to carefully distinguish between a fiction and a lie. I mean, those blur together at some point, but they’re not the same thing, I think. In saying that this is a fiction, I don’t mean to be saying it’s our system is based on lies. I think it’s based on things that are partly fictional, but valuable, ennobling fictions in so far as we act on them.

Richard Reinsch (12:59):

So you’ve used, you said, true-ish, truthful fiction. Is there a truthful account of legal authority and how would we know it?

Steven Smith (13:09):

Yeah, well, towards the end of the book, I try to get into that because the first chapters are mostly trying to expound the idea that authority can be based on a fiction… what we call authority, the functions of authority can be based on a fiction, but that one of the consequences of that is that is that there are a lot of questions that we perpetually debate, seemingly never reach answers and that one of the reasons for that is that we’re treating what’s at bottom of fiction as if it were a fact, as if there were some fact of the matter that could settle what the Constitution means, for example, for some particular thing or what a statute means. To the extent that those things are based on fictions, there’s not going to be any fact of the matter that can settle a lot of those debates. So I think that helps to explain why we never do reach any sort of real answers and we probably never will, because it’s not the kind of thing that could yield those kinds of answers. But that’s still dealing with, we call it authority, I call it authority in the first part of the book, but later I suggest this might be a faux authority.

So if you ask, as you just did, is there any sort of true authority, could there be? The latter chapters, the last two chapters and the epilogue, try to address that question more directly. I might mention the evolution here. Some of this is based on an article I did about 10 years ago which suggested that no, there couldn’t really be true authority. Even God’s authority is not exactly true authority. But reflecting on that in the intervening period, I’ve come to the idea that no, that’s a mistake. I think our modern commitment to autonomy and equality is so emphatic that I think it makes it very difficult for us to recognize what true authority would be. But I argue in the last chapter and the epilogue that, for example, in a Christian perspective, I think there’s, in some ways, a standard answer to this, although one that probably most, even Christians, today no longer think in these terms. That is, yeah, there is a true authority. The king of kings, the early governments that we respect have a kind of authority, but it’s a shadow of the true authority that is there and someday will actually be more operative. I try to explain how that kind of authority could satisfy the conditions of real authority in a way that Earthly governments just really can’t.

Richard Reinsch (15:46):

Something you also write about in the book is anthropology and the significance of who we think man is, what do we make of ourselves, what are we for, as getting at this question of legal authority. So, as you were saying, the dominant understanding, I think, particularly amongst elite classes, is we’re autonomous, we give the law to ourselves from deep within our conscience, which we conceive of in a very subjective way. Who the human person is is growing in sophistication with his own law giving or her law giving. The other conception of that is, I think you used this term, which I like that term, is that we’re deeply relational and we’re not autonomous. We’re dependent on others for everything, and that’s a recognition of wisdom there, that we need other people not just for contracts, but in deeply embedded ways. But, I guess, my question to you is, and that’s the position you side with, I largely agree with that position, what does that mean though for law and for government? Might that give us a way for thinking about it that moves it beyond a fiction? Even the noble fiction you describe.

I say that our system has been based on a fiction, but that’s not the same as a lie. One of the ways of distinguishing is to say, “Is this a proposition that people are willingly entering into, engaging with the fiction the way they do when they go to a movie, for example? Because it’s plausible and because it yields benefits.” In the case of a movie, it might be wisdom or it might be entertainment. In the case of a political fiction, it’s authority, necessarily coordinating authority.

Steven Smith (16:58):

Well, I guess, I think that… Again, I think this is, and obviously there are lots of different views on this, including lots of different Christian views and so I’m not suggesting that even all Christians would agree with this, but I think it’s actually a fairly common Christian position to say that… Let’s say that the governments of this world have a kind of authority, I sometimes call it faux authority, but I don’t mean that it’s not real or that it’s not valuable. They have a kind of authority, but it isn’t really the ultimate authority. So to that extent, human law, positive law, will never have the really ultimate authority or reflect the kind of ultimate authority that, say, divine law would have. That, I think, is actually a fairly… I don’t think that’s anarchic or nihilistic or anything, I think that’s a pretty healthy understanding to remind us, on the one side, yeah, there is a real authority there, but on the other hand, it isn’t really the ultimate authority and we need to keep that in mind.

I think that reminds us of the limits of law. It prevents law and government from becoming objects of idolatry. But in this book, I’m not really trying to argue that on theological grounds at all. I’m just trying to say… My take out point here is actually H. L. A. Hart’s famous argument about the gunman situation where he says a gunman holds you up and says your money or your life. You give him your money, but you don’t say that you were obligated to do so. You might say you were obliged to do so. That was Hart’s point, which quickly, I think, means the gunman didn’t really have authority. The gunman did give you reasons to do something, but it wasn’t truly obligation that he imposed and it wasn’t really authority that the gunman exercised.

I try to argue that Hart was right about that and if you extend that logic, that would apply actually to most other contemporary accounts of what we legal theorists and others typically call authority. That closely examined, even if the accounts are persuasive, they don’t really yield authority. They yield reasons to comply, but not truly authority if we think hard about what authority would be. I think that’s the situation we’re in for most legal purposes and so on. Again, there’s nothing particularly worrisome about that. Then someone might well say, “We should be law-abetting anarchists. If we’re decent people, we will follow the law, but not because it truly obligates us or reflects real authority.” I don’t fully agree with that. I think it actually does give us a kind of practical authority, but again, not the ultimate authority. Again, I think that’s healthy to keep that in mind, to recognize that, that this isn’t ultimate authority.

Richard Reinsch (19:56):

Your chapter on totalitarian governments and through particular experience of Václav Havel in Czechoslovakia and dealing with the Czech Communist government, I thought was instructive of, we can call it a fiction, but I think just a lie about government and what government can do, what it should do regarding people and orders and commands. So that might be… I guess, just, if you contrast that with consent of the governed, it seems to be… If we’re going to say consent of the governed is a fiction, it’s a fiction, I think, tends to build on a truthful, dignified, conception of the human person. Whereas I think what Václav Havel was confronting, and you use of the example of, say, the grocery store owner in Czechoslovakia who complies with the government and puts up some sign or something like that and wants to indicate he’s with the regime to avoid any problems. So that sort of society which is blind obedience and they have control over what you’re doing seems to move in a direction that disregards human nature or thinks it can remake human nature.

Steven Smith (21:08):

Yeah. So I do have a chapter on that. Honestly, I wrote that chapter mostly five or six years ago I think. It’s become, I think, more relevant in a worrisome way in the intervening years.

Richard Reinsch (21:25):

You touch on this in the book, but I was thinking of last summer, store owners putting up Black Lives Matter signs to try and protect their property. Videos I’ve seen of people putting their fists in the air to avoid being persecuted while they’re eating or something by marchers and protesters. You talk about that this was well noted, sessions people get put into at work where they have to talk about diversity or inclusivity and say things they don’t really believe because they don’t want to lose their job. So it’s not as foreign as we might think.

Steven Smith (22:03):

Oh, not at all. As I say, I think, unfortunately much more pertinent than it was when I wrote it five or six years ago. When I did it, I thought, “There are some analogies here,” but I think the analogies are much stronger now than they were then. Let’s just say Havel… A couple points here. I distinguish between fictions and lies. I say that our system has been based on a fiction, but that’s not the same as a lie. One of the ways of distinguishing is to say, “Is this a proposition that people are willingly entering into, engaging with the fiction the way they do when they go to a movie, for example? Because it’s plausible and because it yields benefits.” In the case of a movie, it might be wisdom or it might be entertainment. In the case of a political fiction, it’s authority, necessarily coordinating authority.

So as a fiction, what starts out as a fiction becomes less and less plausible and also less and less beneficial if people continue to be basically induced or compelled to recite it. It becomes harder to say that’s just a fiction, then it becomes more of a lie. That’s what Havel said was pervasive in Czechoslovakia that he was living in and was probably true through most of the Communist countries, I think, at that point. He thought that this was just deadening to the soul. So in that chapter, I tried to investigate whether he was right in saying that these were lies, but it turns out to be a more complicated question than it might seem to be at first. But in the end, I think he was right. Also, was he right that this was deadening to the soul as he claimed that it was? I tried to investigate that as well.

Anthropology again comes into this, but if you think we are beings who have a special dignity by trying to live in accordance with truth, there’s a sense in which it really is deadening to the soul, I think, to live in a situation in which you are constantly being forced to recite things that you don’t believe. Havel was, I think, a powerful witness to that. Solzhenitsyn was another, and so forth. But I think that’s becoming increasingly true in lots of aspects of our life today. I mean, the book is now a year or two old. Douglas Murray’s book, I’ve forgotten the title, the-

Richard Reinsch (24:20):

The Madness of Crowds.

Steven Smith (24:22):

Yeah, yeah. I think makes a pretty good case for that. I just think if you work in the university as I do, that this just becomes more true every year. I don’t know if the trajectory will continue. I certainly hope it won’t. But Havel’s sign, the one that he, in his famous essay, talks about, is the grocer who has to put up “workers of the world unite.” I sometimes thought that academics who might get forced to recite things, do certain training, affirm certain things, maybe ought to just put up a sign in their own windows, and maybe I’ll do this at some point if it comes to that, workers of the world unite as a way of invoking Havel’s essay because I do think this becomes a pretty distressing situation that applies to us as well.

Richard Reinsch (25:10):

So one question that comes to mind here is so what would account in… How does that good fiction begin to break down? I guess, a related question is what do you make of loyalty? Where does that come from?

Steven Smith (25:24):

Loyalty. Every now and then, I’ve thought of… Josiah Royce wrote quite a bit about loyalty and self-worth and every now and then, I’ve thought of trying to undertake some project on that, but I never got very far with it. So I think it would be related to this. I think one reason, for example, to cooperate in the project that may be based on what’s, in a certain sense, a fiction is a sense of loyalty to, well, the enterprise, to those who maybe have sacrificed a great deal to get the enterprise going and to start it and so forth. So I think they do relate.

But then when you ask something like what’s the difference between a system like ours based on what I regard as a wholesome, let’s say, ennobling fiction and something like a fiction in, well, Soviet Union or Czechoslovakia and so forth. So I think there are a couple differences. One you’ve alluded to already, but some fictions, I think, are going to have more beneficial effects than others. Our fiction of consent of the governed is one that tends to have pretty admirable, desirable implications like it promotes voting rights, it promotes democratic participation, it promotes freedom of speech, I think, because those things all follow from the fiction and make the fiction more plausible or true-ish, and those are good things I think and so forth. Whereas the other fictions won’t be nearly as wholesome or beneficial. Like Marxist fiction, so I would say for example. But the other thing is, I don’t really endorse this idea, I just consider it as a possibility at one point in the book, that maybe fictions have a certain kind of career of life course or something that something begins as a fiction and it seems so true-ish and so ennobling that it just really doesn’t seem like a fiction at all. Maybe saying that government must be based on the consent of the governed.

When Thomas Jefferson says it, seems not really even a… more like a self-evident truth as he said. Then perhaps over the course of time, things change, whatever, and the fiction becomes less plausible, so it moves more into the realm of a lie more than a fiction. That may have been true with the sorts of fictions that Havel was talking about. Maybe early in the Communist Revolution, maybe those were such exhilarating propositions that they seemed to be not just fictions. But, by his point, I think it’s clear they’re lies. You wonder whether a similar career might apply to some of our fictions, but I just pose that as a question. I think I’m reluctant to give even a real tentative answer to those.

Our nature is to be autonomous, meaning giving law to ourself and so forth. The idea of that we’re, by nature, political beings and that basically our essence does consist in part in relations to others, including within a hierarchy, let’s say, government and so forth, I think that is much closer to the relational view and makes much more sense in those terms.

Richard Reinsch (28:09):

You talk about by the ’70s, it was hard for most people behind the Iron Curtain to believe in, say, Marxist revolutionary claims because of what they had observed. I think one of the things they had observed and felt was their regime did not respect them as persons and wanted to remake them in an abstracted image and that just hadn’t worked. That raises the question of truth. I think in the case of our regime, what I think has happened in the shorthand is the moral relativism somehow disestablishes truthful claims, but it doesn’t stay in relative land. Somehow relativism has opened itself up to these claims of identity as being the valid way to think about what it means to be a human person. Identity, race, sexuality, gender, whatever. That’s now what a lot of people are latching onto. So something like consent of the governed doesn’t really make a lot of sense because, well, that’s just how the dominant group stays in power or something like that. So I think it’s a two-step process. Relativism then turns inward and looks for another source of… You can’t stay a relativist for very long. It’s sort of has looked for something else and this is pre-reason, pre-logic, it’s an identity and some ascriptive characteristic, and that becomes, well, this is how we should think about government and who we are and blah, blah, blah.

Steven Smith (29:42):

Yeah. Well, I agree that definitely that sort of trend is very apparent. It may relate to this consent of the governed proposition in a way I hadn’t exactly thought of. But to tell you the truth, I am developing more in another book that I’m working on, pretty much finished, but has more to do with freedom of conscience, but Jefferson’s proposition that we have inalienable rights and the government has to be based on the consent of the governed were based… he claimed were self-evident truths, but they were linked to the idea of a creator who makes these things true and endows us with the rights and so forth. So in a certain sense, they get their normative value from theistic premises, I would say, that I won’t say that people no longer believe them. A lot of people still believe them. I believe them. But that have become publicly unavailable. They’re not available to use in public debate and so forth. So once you get rid of the foundation of those kinds of claims, you move to something else. I think we have moved increasingly to… In this other book that I’m working on on conscience, I think, conscience becomes less of a response to truth and God as it was for Thomas Moore and James Madison and Thomas Jefferson and more of just a matter of personal authenticity. Authenticity then becomes itself problematic because once somebody’s… What gives them their… a person their identity to which they can be authentic. So there’s a natural dissolution into various forms of trying to figure out what identity means. So there is that, I think, movement to identity and I think you see that very clearly in a lot of what I regard as extremely worrisome modern developments and so forth. I guess, in that way, it probably does relate to… It’s not just the proposition that the consent of the governed is in itself a fiction or not entirely true, it’s that the whole meaning of the meaning of the proposition is embedded in a view of the world that no longer is available. That may be another way in which that fiction could break down and become something much less healthy.

Richard Reinsch (31:53):

I mean, in a way, you’re making the argument in a different key, maybe, than John Courtney Murray made in his 1960 book We Hold These Truths. The natural law framework was sort of coincidental to a lot of the framers’ political thought, although they maybe didn’t realize it as much. But that’s what they’re implicitly drawing on in their writings about revolutionary government and separating from the British and the reasons why. So they’ve got this framework. Some of them understand it, but a lot of them don’t. It’s just in the air. But it’s still available to us as a resource to use to develop arguments for, as Murray says, the natural law framework of our Constitution. Another phrase here is built better than they knew, speaking of what the Founders did. So I’m sympathetic to what you’re doing. One question that comes to mind is is your project, and thinking about authority, does it presume, say, a political liberal, political modern principle that government is artificial and so we have to try and find a way to account for its authority? As opposed to, say, another way of thinking about government is that its natural and man is a political animal. It’s a part of who we are. We’re born into political society. We don’t create it. It wasn’t created at one point in time. Therefore, if it’s natural, then maybe it’s authority isn’t an intractable problem.

Steven Smith (33:22):

Right. So I guess, I think that suggestion ties very much into some of what comes towards the end of the book and what you and I were discussing a little bit. The really modern prevalent assumption, you could call it Kantian or whatever, but it actually probably comes from lots of places, and that autonomy is our basic nature and the source of our dignity, I think, does imply that there’s something artificial about government. I mean, government is… you got to account for it in terms of some social contract or something or other because it isn’t exactly natural to us. Our nature is to be autonomous, meaning giving law to ourself and so forth. The idea of that we’re, by nature, political beings and that basically our essence does consist in part in relations to others, including within a hierarchy, let’s say, government and so forth, I think that is much closer to the relational view and makes much more sense in those terms. I am a little bit wary about just signing onto that though because, I mean, I think that could go in an unhealthy direction to say our nature is to be submissive to some sort of authority. I think you have to be careful about the nature of the authority to which we should be submissive. But when I try to develop the relational account towards the end, that’s the direction that is going, I think.

Richard Reinsch (34:46):

Yeah. Well, and it suggests if government is natural and it’s a part of who we are, and as languaged beings, we give reasons, but we’re also radically incomplete, so we need other people, so we need law, we need authority, we’ve got to develop, I think, not… but also the reasons why we continue to do it and uphold it. I think also it’s the anthropology of being relational would suggest there are limits to government. It should uphold these good things of human persons like… Because you suggest in the book, you talked about real authority in the book, but it’s not in government. It’s family. I think you say coaches, friendships. Those are things of authentic authority. So we would want the government to uphold those things because those are really accurate accounts of personhood where we can flourish and that would be a way of thinking about good government versus bad government and what it should do.

Steven Smith (35:38):

Yeah. The other side of that is conversely you know what you don’t want government to do, is attempt to basically take over, commandeer, interfere with the sources of genuine authority that still exist like family and these other sorts of associations. Because I do suggest that… I mean, not that they are inherently sources of good authority because they can be dysfunctional too, but they can be sources of genuine authority that help us to be constituted as full people, I think. Connections to family and other sorts of mentors and so forth, I think, in the relational view are necessary to basically realizing our personhood. So it’ll be very unfortunate if government decides to impose its norms all of those associations and relations as well, to which there is some tendency, I think, again, there’s a pretty strong tendency in recent decades.

Richard Reinsch (36:30):

Maybe a final question, a big question, does classical natural law influence you either way here in your argument? When I say classical natural law, I’m meaning this idea that we can participate in discovering the law with others. It’s not that we don’t make it, but we don’t really make it. It’s something that we find. So the participation meaning there’s just something above us or beyond us or for us that we’re going to discover and use in crafting law. Does that shape your thinking about authority or should it?

Steven Smith (37:08):

Well, I think I would say this, that I don’t really try to develop anything like that in this book. But I think to the extent that the argument is persuasive could be fit nicely into that kind of framework in the way that would make sense of a lot of what we do and so forth. In the classical framework, I guess, I think it would still… So if you take Aquinas, let’s say, as the premier expositor of that sort of view, I think it’ll still follow that governments have authority and that law would be, well, a lot of it would be not directly derived from the natural law, it’d still work through tradition and positive law, determinant, I might say, and so forth. But the government will have a kind of genuine authority. Even then, I think it’s still not the ultimate authority. It needs to be seen as derivative of or modeled on and authorized by ultimate authority and so forth. Then I actually think you can get to a fairly plausible and wholesome picture of the whole condition that way. But that’d be a lot more for me to take on, I think, in this book than I’m really up to.

Richard Reinsch (38:23):

Maybe something that I’ve wondered is I assume you started writing this book, maybe I’m wrong, because you think we were experiencing a diminution of authority in our country. I guess, maybe just your big thoughts there too. Is that why you wrote the book and did you find something that you didn’t think would be there?

Steven Smith (38:43):

Yes and no and yes I can say to those two questions. So actually, I mean, I did write some of the different sections at different times in response to more particular concerns or motivations. I got interested seven years ago in just the more jurisprudential question of authority with various legal theorists who try to explain authority and growing out of H. L. A. Hart. I thought that was a pretty interesting and so I did some work on that. Then the middle chapters that have to do more with Constitutional and statutory interpretation are things that I just… I work with those things and occasionally write things relevant to them and those are pretty interesting in their own light. So I already had been working on those, thinking about them, and written some other things related to them.

The chapter on living with lies is something that was provoked more by concerns that have just gotten much more intense in the years since I did that thing. I never published that, I think, before, but I had written that some years back. So that was prompted by something else. So the motivation was various, I might say, for the different parts. Then it seemed to me that, particularly using Hannah Arendt’s provocative claim, actually, these things kind of fit together in terms of some overall problem of authority in the modern world. So I did try to connect them up in that way and so forth. But I didn’t initially think of them all as part of a single project prompted by some particular concern. But as it did come together, I just think the concern has grown much more urgent and intense. I mean, I think there are just a lot of what I see as unfortunate directions in our politics and our society, frankly at my own university for that matter.

Richard Reinsch (40:24):

Yeah. Well, I think it’s when we look and see those in leadership positions in, say, law, government, education, and then those who give us ways of thinking about our time, like media figures, or put thoughts in people’s minds, when they start to lose faith in the country or actively despise it, it seems to me then the country starts to fall apart at that point.

Steven Smith (40:51):

Right. In a way, I think this book, I hope it doesn’t contribute to that necessarily, but it does give an account of it because, I mean, it does say that in so far as… I mean, this is just the mundane analogy would be if you go to a movie and you or your friend, whoever, who goes with you keeps saying, “This didn’t really happen. This is all…” it’s going to undermine the… A fiction is, I say at one point, a conspiracy where the author and the reader or the hearer agree to participate in something for their common benefit, which involves, in some ways, suspending judgement about certain things, understanding that these are fictions, whether they’re beneficial fictions. If we keep reminding ourselves these are fictions or trashing the fictions and so forth, that will ruin the project.

Now, there are reasons for it. I mean, sometimes that’s the appropriate thing. I mean, I think, for example, those in the Communist regimes who undermine the fictions are doing something that was a good thing and so forth. Even though they were undermining that kind of authority. So I’m not saying this is always necessarily a bad thing, but I do think that we see a lot of that going on today, picking up steam and everything. It’s a concern. Interestingly, it ties into… I read something about authority’s the groundwork of the world. I mean, it undermines, I don’t say the ultimate groundwork, I trace that, I think, in the end, suggests that’s more a transcendent ground, but in a more mundane sense, yeah, the groundwork of the world, I think, is really shifting in a way that is troublesome.

Richard Reinsch (42:27):

Steven Smith, thank you so much for joining us. We’ve been talking with the author of the new book, Fictions, Lies, and the Authority of Law. Thank you so much.

Steven Smith (42:34):

Thank you.

Richard Reinsch (42:36):

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.