Comments Elsewhere

Jill:

Ah, I love this talk of prevailing social values and community standards. Kind of how community standards dictated that blacks had rights about equal to those of livestock; or how community standards clearly didn’t want black children going to white schools; or how community standards decided that Jews were sub-human and could be killed by the millions; or how community standards dictate that if a woman is raped, she’s an adulterer who deserves to be punished as such.

David Thompson:

When the prevailing community standards held such, the law reflected those beliefs. When the community standards changed, the law changed in accordance. In a voluntary society, the laws are the mechanism to promulgate and regulate social mores; otherwise they are merely arbitrary diktats without the legitimacy conferred by social assent and respect.

You need to think harder about this. “In a voluntary society,” everyone affected by the law has a voice in making it. Jews under the Nuremberg Laws and during the Holocaust, Blacks under slavery and Jim Crow, and women in contemporary Pakistan didn’t have any meaningful voice in making the laws inflicted upon them — this was an essential part of the political structure that the Nazi regime, white supremacy in the United States, and male supremacy in Pakistan created — so describing the imposition of them as anything less than “arbitrary diktats” is tendentious to say the very least.

“The legitimacy conferred by social assent and respect,” if “social assent and respect” means nothing more than the assent and respect of the numerical majority of people, or a numerical minority that happens to have enough guns to dominate the discussion by force of arms, is precisely zero.