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Friday

Law

From No Treason via Richard:
You bandy about the words 'illegal' and 'lawbreaker' as if they had moral content. They donít.

Werenít Washington, Jefferson, Franklin and all the founding fathers lawbreakers? Wasnít Thoreau? Or Martin Luther King?

Wasnít the Declaration of Independence itself an act of lawbreaking?

Men have no moral obligation whatsoever to obey or even recognize immoral laws, including many immoral laws that you are party to. Stop using law as a proxy for morality in your arguments. There is no necessary relationship between the two.
Regarding, what else lately, the immigration "debate".

The first sentence is quite correct, importantly so. The remainder, except for the last sentence, isn't worth quoting except as an example of how those who should know better too often have no clue what it is they are debating about. He might have convinced me he had a clue if he'd left out the word "necessary" in that last sentence.

You see, even these verbal battle-tested libertarians continue to see ideal law as a prime mover. Why else assert the right to disobey immoral laws if not as contrast to a duty to obey those that are not immoral? Why else trot out the authority of those we respect except to differentiate their disobeyance of laws they found illegitimate from their obeyance of laws they did not?

I'm not talking about the gross failure of our legal system to craft laws that deserve our obeyance - though that fact is certainly indisputable - nor some anarchic view that no law is legitimate and therefore no law morally obligates us.

No, it's deeper than that. Even accepting the premise that there are legitimate laws buried in among the avalanche of illegitimate ones, there is still nothing in the law that compels us to moral submission. That's not what laws are for.

Roll that one around in your head a bit before I go on, and think about the entire edifice of beliefs built on this one premise that even among you freest of thinkers goes unquestioned, even while you question all other things political:

Laws are not there to tell us what to do. Laws are not there to guide our actions. They never have been and never will be. That's not the purpose of law.

In the conceptual heirarchy of right and wrong, good and bad, should and shouldn't, laws don't come first. They don't come in the middle.

They come last.

Laws are a consequence, not a cause. Laws, legitimate ones anyway, are not made, they are discovered. Laws are identifications of facts of reality, of behaviors that cannot be tolerated by rational men. Laws don't tell anyone how to behave, they tell anyone what the consequences of their behavior might be. Laws, even in the idealistic utopia of perfect governance, are nothing more than prior announcement of the form of reaction to rationally intolerable behavior.

Laws come into moral context once we have chosen actions that trigger some reaction from the body poltic. Some laws may certainly come into practical context prior to that choice. But only laws we believe to be illegitimate come into practical context a-priori. The practical evaluation of the consequences of a law we find legitimate is pre-empted by our moral aversion to commiting the action it addresses - the law has no effect in such case. It is only when an action we believe to be moral runs counter to a law that we even consider the law in deciding our actions, and then not in the moral realm, but merely in the practical.

We are prevented from acting counter to a legitimate law by the pre-exiting moral constraint such a law recognizes, whether such law actually exists or not. We are prevented from acting counter to an illegitimate law only when the expected practical consequences of doing so outweigh the benefits of doing so. In neither case is moral consideration of the law itself of any relevance whatsoever.

Laws are solely aimed at those who would govern us. Their only purpose is to inform them what they are or are not authorized to do in response to our actions. The authorities, legitimate or not, are in a special class of people, uniquely subject to prior constraint by law. That's the price they pay for claiming authority, not from social or legal construct, but as an inescapable corollary to the concept of authority.

Legitimate or not, only those who govern must consider the moral implications of the law prior to acting, because it is only they whose actions arise from the word of law. And consider it they must, because they and they alone, those who act, are responsible for those actions, no matter what moral authority the law claims to give them.

Comments

Here via a link from Billy Beck. Sadly, you know little about the philosophy of laissez faire law. It is not the handmaiden of morality, libertarian or otherwise. Your statement "Laws are solely aimed at those who would govern us" recites an 18th century error. That said, I congratulate you for winning Billy's approval.

Posted by Wolf DeVoon at Monday, April 10, 2006 10:52 PM

Wolf,

Sadly, you offer no counter argument. You seem to agree with me that "it is not the handmaiden of morality", so I really can't fathom your objection. As to repeating an 18th century error, I'd be pleasantly surprised - amazed even - to hear of any 18th century figure who believed as I do. Please cite an example so that I can possibly add a new hero to my pantheon.

Maybe your consternation over Billy's "appoval" is because he understood what I wrote, and you didn't.

Posted by kylben at Tuesday, April 11, 2006 07:27 AM

Kyle wrote:
<i>In the conceptual heirarchy of right and wrong, good and bad, should and shouldn't, laws don't come first. They don't come in the middle. They come last.</i>

What was it in Kennedy's post at No Treason that makes you think he believes that laws come first, middle, or even last?

I'm working from the advantage of being familiar with the body of Kennedy's writings at No Treason and elsewhere, but it seems to me he made it clear that the law is not a consideration in matters of morality. In fact that was the point of the post.

Posted by Lynette Warren at Tuesday, April 11, 2006 12:02 PM

Lynette,

He started out exactly right, but then he backed away by qualifying it: "immoral laws", "no _necessary_ relationship" (emphasis mine). But the first statement is true unqualified. The law _never_ has any moral content, individuals are never morally bound by _any_ law, immoral or otherwise.

In light of that, the part about the founding fathers, etc., strikes me as, at worst little more than an argument from authority, and at best, a restrictive qualification.

I don't have the benefit of familiarity with Kennedy's body of work, so I can't say what he might have meant or what he has said previously on the subject.

Posted by kylben at Tuesday, April 11, 2006 12:59 PM

"[Billy] understood what I wrote, and you didn't."

Opponents always know less, understand nothing, can't read, etc. Go and read the link -- oh, hell nevermind. Party on, have fun with words, no need to think.

Posted by Wolf DeVoon at Tuesday, April 11, 2006 01:35 PM

Your conclusion that he either argued from authority or qualified his point is in error, but understandable, in light of the fact that you're not familiar with anything else he's written.

Posted by Lynette Warren at Tuesday, April 11, 2006 02:13 PM

"Opponents always know less, understand nothing..."

Yes, that's exactly and explicitly the premise you started this exchange with. Are you simply reiterating that position, or did you have some other purpose in mind?

I read your link the first time, it's orthogonal to this post. I also read your comment, in which you more or less repeat my point, yet imply that you disagree with it, and then proceed to mischaracterize it.

At least one of us isn't understanding the other, and since you started by assuming that I was an opponent that "knows less, understands nothing", I don't particularly care which way that goes.

If I've failed to communicate effectively what my point was, I'm all ears. You've failed now at two opportunities to communicate yours. Should I be holding my breath any longer?

Party on, Wolf.

Posted by kylben at Tuesday, April 11, 2006 02:28 PM

Lynette,

The qualifications are right there in the words he wrote. They required additional words, additional typing. Why include "immoral" twice in regards to laws if not to differentiate from "moral" ones? Why say "no necessary relationship" if he meant "no possible relationship", or just "no relationship"? If this is counter to his other writing, fine, but it's not a misintepretation.

Posted by kylben at Tuesday, April 11, 2006 02:36 PM

Kyle,

I was making the point to Ron Paul that, whatever his theory of morality and law might precisely be, he was certainly in no position to dispute that some laws are immoral and that men are not obligated to obey them. That clearly follows from his own premises. Thus he cannot reasonably draw moral conclusions from the fact that someone has broken the law.

There as no necessary relationship between morality and law as there is no necessary relationship between the time of day and the hands of a clock. The time of day never depends on the hands of any clock and morality never depends on any law. Yet a clock can be set to more or less reflect the time of day and then there is a relationship between the two. Likewise men may outlaw theft because it is immoral and then there is a relationsip between the law and morality.

As to my view of the relationship between law and morality, I quite agree with Lysander Spooner in his letter to Grover Cleveland:

"ďLawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them, ó that is, all the laws of their own making, ó have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates menís duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. And nobody is bound to take the least notice of them, unless it be to trample them under foot, as usurpations. If they command men to do justice, they add nothing to menís obligation to do it, or to any manís right to enforce it. They are therefore mere idle wind, such as would be commands to consider the day as day, and the night as night. If they command or license any man to do injustice, they are criminal on their face. If they command any man to do anything which justice does not require him to do, they are simple, naked usurpations and tyrannies. If they forbid any man to do anything, which justice could permit him to do, they are criminal invasions of his natural and rightful liberty. In whatever light, therefore, they are viewed, they are utterly destitute of everything like authority or obligation. They are all necessarily either the impudent, fraudulent, and criminal usurpations of tyrants, robbers, and murderers, or the senseless work of ignorant or thoughtless men, who do not know, or certainly do not realize, what they are doing. ď

http://tinyurl.com/zkxwm

Posted by John T. Kennedy at Tuesday, April 11, 2006 05:28 PM

John,

Before I get to the substance of your comment, I want to apologize. I just got home, and on the drive, thinking about this, realized that "should know better", and "don't have a clue" were too harsh. I was going to post that regardless, so your comment here is a good opportunity.

The Spooner quote, which I hadn 't seen before, is exactly what I was getting at. Your clock analogy is closer to it, but still could imply that, as a clock guides people's activities throughout the day, the law can be a guide to people's behavior in society.

Yes, there is a relationship between moral law and morality, but it is a causal one going in one direction only: morality determines law, not the other way around. In the context of the discussion at hand, the relationship in question is the causal one from law to morality - which is a null set. But that may be nitpicking.

I'm glad you clarified your position, and I'm glad Spooner went there before me, I don't feel so much like I'm in uncharted waters.

Posted by kylben at Tuesday, April 11, 2006 06:15 PM

Wonderful discussion. You guys nailed it.

Posted by Al the Old Whig at Tuesday, April 18, 2006 10:24 PM

<i>They are therefore mere idle wind...</i>

Damn, ol' Lysander was a whiz kid.

Posted by jomama at Tuesday, April 25, 2006 06:39 AM

Sometimes I despair of ever being understood. Spooner was an outlaw who defied any and all external authority, not unlike a 4-year-old. His whole line of argument is no, no, no, no, no, no. I've written about the virtue of dissent and disobedience. I have personally defied authority on numerous occasions. Many of my recent articles urge folks to think of and for themselves; to declare themselves free of obligation and live free. This is not the same thing as a reasoned discussion of law.

Nor is it fruitful to confuse "positive" legislation with other sources of law. Serious students need to discern the difference between common law, canon law, positive law, constitutional law and equity. Spooner saw only edicts and decrees issued by tyrants.

Above, I said your statement "Laws are solely aimed at those who would govern us" recites an 18th century error. The error was an historic achievement that propelled both the American and French revolutions.

Blog comments are no substitute for a college education. I give up. Read Tom Paine's 'Rights of Man' and a textbook or two on US constitutional law.

Posted by Wolf DeVoon at Sunday, April 30, 2006 08:55 AM

Ah, the old "childishness of defying authority" argument, backed up by a backhand reference to a presumed lack of education. Wasn't it you who complained about that kind of argument in your first comment?

Regardless, there's a difference between defiance and rejection. For practical reasons, I don't defy authority all that often, and certainly not when its only purpose is to impetuously assert some kind of independence. I defy it when the benefits outweigh the risks, in full context, and don't expect for a minute that it will have any effect beneficial to myself on those that are defied.

I do reject external authority in that there is simply no valid moral argument for there being any such legitimate authority, short of my agreeing to be bound by it. For instance, my boss at work is a legitimate external authority, for such time as I remain in his employ.

There are external constraints I recognize: the laws of external reality, logic, and the moral laws that follow therefrom. I couldn't violate those if I wanted to, and failing to take them into consideration when acting can only be to my detriment. To the extent that the law coincides with those constraints, then I do follow the law - not from some moral duty to follow it, but rather a result of mere coincidence.

I also recognize the right of response, should my actions violate the rights of others. But the response of others to my transgressions is after the fact, and imposes no moral obligation on me that didn't already exist prior, with or without the law.

Finally, the concept that only those who make and enforce the laws are bound by them is not a social prescription, nor a moral imperative, but simply an observation of a fact of reality. Such people are the only ones who have voluntarily chosen to live by those laws, whose actions arise from them, and so by their own choice they are bound by them. There is no logical connection between those laws and the rest of us.

So far, I'm not impressed with your ability to form a rational argument, your comments amounting to little more than bald assertions and opinion on my character. And as to character, this is the second time you've 'given up' on me. Should I take your word for it, that you actually intend to do what you say, or are you again just crying Wolf?

Posted by kylben at Sunday, April 30, 2006 04:39 PM

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