Toward "Law & Distributism"

By Gabriel S. Sanchez
March 27, 2014

As an intellectual movement that has experienced more than its fair share of “ups and downs” over the past century, Distributism suffers from under-theorization on a number of important fronts, though needful corrections are being made.

With respect to economic theory, for instance, John Médaille’s The Vocation of Business and Toward a Truly Free Market have provided Distributists with a refurbished toolkit for both combating the criticisms of ostensibly more economically sophisticated libertarian/neoliberal camps and building a positive case for a Distributist socio-economic system.

In other areas, such as theology, philosophy, and history, Distributists fare pretty well, particularly when addressing the close ties between Distributism and the social magisterium of the Catholic Church.

In the area of law, however, Distributists have little to no presence outside of occasionally critiquing a particularly statute or judicial decision that appears to favor concentrated corporate interests over the rest of working society.  Another, similar, road of engagement has been laid out by Brian McCall of the University of Oklahoma Law School. In a series of articles, along with a book, McCall has examined modern commercial law in the light of classic Catholic socio-legal principles. As important as this work is, it remains particularized and unsystematic. Nothing approaching a Distributist theory of law has been developed, at least not yet.

Now, compare this situation with what the libertarian/neoliberal camps have achieved since the 1960s with the so-called Law and Economics (L&E) movement. In just a few decades, L&E has become the dominant paradigm in American legal studies and beyond. Its normative prescriptions, rooted in a neoclassical concept of efficiency, have given intellectual heft to the deregulation movement that began in the 1970s while seriously reshaping the nature of antitrust law. While some of L&E’s contributions have, thankfully, remained confined to the academy (e.g., Judge Richard Posner’s suggestion for a deregulated market for selling babies), no sustainable rival paradigm has arisen to challenge many of its reductionist assumptions. The Ivy League-based Critical Legal Studies movement, which took its bearings from critical theory and Leftist ideology, attempted to oppose L&E’s hegemony in the 1980s before fizzling out. Within L&E itself, different schools have developed that criticize certain aspects of L&E as being too simplistic and blind to cognitive research that casts doubt on the claim that most persons behave as pure utility-maximizers in the marketplace.

Even so, L&E continues on, providing free-market ideologues with sufficient cover to claim that their policy pronouncements are “scholarly,” “scientific,” and “rigorous.”

What does Distributism have to say to that?

It is important to keep in mind that L&E does not limit itself to identifying “ineffiecient” laws before calling for their repeal. In its high-octane form, L&E pushes for a thoroughly deregulated marketplace with private-law rules serving in the stead of public oversight. In an elegant and powerful defense of such a system, a work entitled Simple Rules for a Complex World, Richard Epstein—perhaps the most important libertarian legal scholar of all time—looks to areas such as property, contracts, and tort as providing the just content of a proper legal ordo. What Epstein fails to do, however, is make explicit the history behind these rules and the reality that principles such as “freedom of contract,” “strict liability” or “negligence” in tort, and near-absolute property rights are in no sense neutral, but rather sprang from the liberal ideology that informed the development of the common law (i.e., judge-made legal rules) from the 19th century onwards. It is assumed, rather than proved, that these sorts of liberal principles are in any sense just; it is doubtful that a socio-economic system that relies upon them could, in any meaningful sense, be Distributist in nature. And even if judges, informed by Distributist principles, could begin shifting the common law away from the absolutization of liberalism that Epstein’s thinking favors, the movement would be slow, dispersed, and likely ineffectual.

In short, if Distributism is going to actively engage the realm of legal studies, it cannot blindly accept the assumptions and principles upon which the current legal system is predicated.

That is, as they say, a “global level” problem—one that cannot be addressed adequately in a single article. On a lower, more specific level that connects back to the emerging, but by no means fully developed, tendency of Distributists to clash with libertarian/neoliberal camps over specific pieces of legislation, does Distributism have anything meaningful to say there? Here, I think, the answer is a modestly qualified, “yes.”

For example, Distributists, to the extent that they are informed by the social magisterium of the Catholic Church, can and ought to cast doubt on the liberal legal fetish for “freedom of contract,” i.e., the principle that individuals (or corporations) ought to be create bargained-for exchanges without external (government) interference. Many libertarian Catholics, intoxicated as they are by free-market principles, will tout “freedom of contract” as a right—even a natural right—which cannot be abrogated except, perhaps, with respect to a discrete set of immoral practices (e.g., prostitution, pornography, narcotics, etc.). (Sadly, a number of libertarian Catholics—to say nothing of libertarians in general—are largely silent on whether or not even these limits ought to apply.) With respect to wage contracts, however, they state that freedom of contract definitely applies under all circumstances; and yet this is what Pope Leo XIII states in Rerum Novarum:

Let the working man and the employer make free agreements, and in particular let them agree freely as to the wages; nevertheless, there underlies a dictate of natural justice more imperious and ancient than any bargain between man and man, namely, that wages ought not to be insufficient to support a frugal and well-behaved wage-earner.

While the Pope begins by acknowledging the necessity for employers and laborers to freely contract for wages, he substantially qualifies his remark by reaffirming the “dictate of natural justice more imperious and ancient than any bargain between man and man, namely, that wages ought not to be insufficient to support a frugal and well-behaved wage-earner.”

Right there, in unequivocal terms, Leo has placed, on the basis of natural justice, a limitation on the freedom of contract. Following Rerum Novarum, it would be impermissible for any employer to pay wages that are below the threshold that natural justice demands, regardless of what is “freely” bargained for. Distributism, then, does have something to say—a great deal in fact—against commonplace legal precepts that are often touted by libertarians—Catholic or otherwise—as absolutes that should be treated as sacrosanct.

The matter cannot end there, of course. As I noted, my “yes” to Distributism’s capacity to meaningfully engage with specific legal principles remains qualified. Why? Because there is still more work to be done to clarify, or at least restate, what Leo XIII means by “natural justice” as opposed to the litany of Enlightenment-based “natural rights” which are often bandied about by those seeking to inaugurate a free-market “utopia.”

Additionally, Distributism needs to develop an alternative set of legal principles that can be operationalized. It is one thing to speak about the dictates of natural justice with respect to wages; now how does a concrete society go about legally enforcing those dictates in an effective, but not overly cumbersome, manner? Distributists cannot be content with only critiquing the present state of law and its oft-unquestioned principles; it must also provide workable alternatives rooted in a thick concept of transcendent justice.

The first wave of Distributists did an effective job making the moral case for a new economy built on the teachings of the Catholic Church and rooted in the natural law that is, theoretically, available to all men, at all times, and in all places. Now a fresh surge of Distributists are engaged in the arduous but essential work of putting meat on the bones to demonstrate not only Distributism’s moral goodness, but pragmatic feasibility as well. Law is one area in which Distributist thought has not been properly represented, but hopefully that, too, is changing.

The L&E movement has run its course with troubling consequences. Private common law remains tethered to problematic liberal principles that have not been subjected to a thoroughgoing critique by Distributist thinkers. The time is ripe for the emergence of an authentic “Law & Distributism.”