For what it’s worth, Charlotte was a sympathetic interviewer who among other things took time to contact Dana Ward before she ever interviewed me, in order to get some background on anarchist ideas. She didn’t miss or misrepresent my distinction between senses of “law”; rather, I used the phrase “lawless order” several times in the course of the interview without stopping to mention the distinction between law-as-general-prescription and law-as-government-edict (although I did mention the importance of private mediation and arbitration along the way), because I figured (rightly, I think) that spelling out the distinction would only introduce complications that couldn’t be very well captured in the story — not because of any problem with the reporter, but simply because of the format of a short newspaper feature is such that the medium won’t bear the message.

The only thing that really baffles me, actually, is the headline. I mean, yeah, down with “The Man” and all, but my appropriation of New Left argot hasn’t gone that far yet, and I don’t think those two words were ever even uttered in that order at any point during the meeting.

Thomas,

Thank you for your kind words.

You write: “But I also think there’s specialization and craft in these pursuits, just as there is in, say, cabinetmaking or watchmaking.”

Probably so, although I’m inclined to think that there is, or ought to be, much LESS specialization and craft than the professionalized government enforcers and judges would have you believe. To be sure, the government laws that are on the books today are tremendously complicated and require years of specialized training and practice to even begin to get a good grip on a relatively small specialty. But I think that that’s precisely because the people who make and use the laws have a political and a professional interest in making those laws extremely complicated, and in having them cover an extremely wide and not very well defined scope of human affairs. Libertarians and anarchists believe that regularized enforcement should cover a much more precisely delimited and a much, much smaller field than it currently does, so to some extent the problem vanishes along with the laws that libertarians and anarchists believe ought to be abolished.

For example, labor relations law as it presently exists is extremely complicated — it requires making a lot of very fine distinctions, balancing many different prerogatives granted to and regulatory limitations imposed upon unions, individual employees, and employers, etc. etc. etc. It takes a lot to even understand the basics of the situation, and the tricky details of a concrete case often can’t even be resolved without hashing out the issues in bureaucratic negotiations through the NLRB or in federal court. But the complexity of the legal situation is clearly a function of its being channeled through the federal regulatory bureaucracy. That situation clearly benefits NLRB bureaucrats and professional labor lawyers; it’s much less clear that it benefits the rank-and-file workers for whose benefit this sort of thing was supposedly constructed, but who are substantially deprived of any real control over the process by putting so much of it into the hands of professional legal experts. If agreed-upon norms of justice and enforcement were (as anarchists believe that they should be) limited only to the issue of protecting innocent people from being attacked by physical force, or vindicating their rights after the fact if they should be attacked — with all the rest to be handled by free contracts between the individual parties, unregimented by a government bureaucracy, and by whatever forms of nonviolent leverage and activism that the creativity of organized workers and a fighting union might devise — then it’s much less clear what need for specialization or professionalization there would be. (There might still be a lot of need for impartial arbitrators; but impartiality is distinct from technical expertise, and is something you can get by finding any third party of good will and good sense for the duration of the arbitration; it doesn’t require a distinct class of professional arbitrators.)

Generalizing from that case, I agree with Lysander Spooner that if the realm of enforcement were strictly limited to questions of interpersonal justice, then, quote:

“No objection can be made to these voluntary associations upon the ground that they would lack that knowledge of justice, as a science, which would be necessary to enable them to maintain justice, and themselves avoid doing injustice. Honesty, justice, natural law, is usually a very plain and simple matter, easily understood by common minds. Those who desire to know what it is, in any particular case, seldom have to go far to find it. It is true, it must be learned, like any other science. But it is also true that it is very easily learned. Although as illimitable in its applications as the infinite relations and dealings of men with each other, it is, nevertheless, made up of a few simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception. And almost all men have the same perceptions of what constitutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn.

“Men living in contact with each other, and having intercourse together, CANNOT AVOID learning natural law to a very great extent, even if they would. The dealing of men with men, their separate possessions and their individual wants, and the disposition of every man to demand, and insist upon, whatever he believes to be his due, and to resent and resist all invasions of what he believes to be his rights, are continually forcing upon their minds the questions, Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions which, in regard to the great mass of cases, are answered alike by the human mind everywhere.”

–Lysander Spooner (1882), Natural Law, or the Science of Justice, section 4. http://www.panarchy.org/spooner/law.1882.html

And I would follow up your second point by urging that it is dangerous, and to some degree irresponsible, to adopt large-scale systems of law and practice that practically require ordinary citizens to abandon the questions of political and interpersonal justice to a privileged, insular, and easily corrupted class of specialists.

But, secondly, I would also argue, further, that even if the requirements of justice ARE complicated enough in some particular case that it requires some specialized training and expertise to sort them out, or where correctly applying and implementing them requires specialized training and expertise in something else (e.g., for enforcers, training and expertise in de-escalating potentially violent situations may be a form of specialization well worth having), that seems to me like an argument for leaving the field open to many specialists, who can offer their services to anyone who is interested in retaining them (e.g. many private associations for arbitration and/or defense, which people go to on the basis of choice rather than being forced to go to one in particular on the basis of fixed territorial monopolies). Not so much an argument for limiting the field to a single fixed, institutionalized class of specialists (e.g. a government court or a government police force with rigidly and exclusively defined territorial or topical jurisdictions).

The first (non-monopolistic) solution really would make the business of law a skilled trade or profession, much like watchmaking or medicine, where people go to acknowledged experts freely, but aren’t forced to choose one particular expert on the basis of political status, and can choose another, on the basis of their own considered judgment and comfort levels, or for that matter can still choose none at all, if they decide to hazard the risks and trouble of doing it for themselves.

The second, monopolistic solution doesn’t make the business of law so much like skilled trades and professions, but rather like a feudal or command economy, in which people are assigned particular experts and forced to turn matters over to that particular expert rather than another, on the basis of the political status of the experts rather than on the basis of broadly and consensually acknowledged expertise. It’s that which, as an anarchist, I really object to.

Does that help? What do you think?

“You put your trust in the state because it filters out complexities of life you either cannot manage on your own or see no need to.”

I don’t know who this “you” is supposed to be. Perhaps Jason Smathers is using “you” to mean “me.” But if so, he really ought to speak for himself. I certainly do not put my trust in the State and I find that the government and its endless reams of arbitrary laws make my life much more complicated. I’d really like to know, for example, what in the world the IRS is doing to filter complexity out of my life.

“Why do people obey unjust laws? Because — for the majority, in most cases — it’d be a whole lot more problematic and chaotic without the system there. I may recognize that a war we’re involved in is unjust, but I don’t attempt to overthrow the government because the state simplifies my life in ways that more directly affect me.”

Well. I, for one, am certain that if I were an Iraqi child, I would be happy to die, in order that Jason Smathers might live a simpler life.

At the end of the article, Franks does express some “regret” that “we really couldn’t honestly find enough reasonable doubt to acquit Mr. Rhett.” Not because he feels bad about abducting harmless people and locking them in a cage for 10 years, of course, but rather because he would have rather reserved that treatment for some other innocent person higher up in the import-export business. But Rhett didn’t snitch, and “he was the one that got caught,” so ten years of his one-and-only life is close enough for government work.

Simon:

No. At least not at the federal level.

What has this got to do with the federal as against the state courts? Do you think that state judges have a right to overturn unjust state laws regardless of the provisions of constitutions of the U.S. or their own state–even though federal judges (on your view) do not? If so, what makes the difference between federal and state judges? If not, then why bring it up?

The trouble begins when (as Tully alluded to) you come to realize that different people have different ideas about what is and isn’t just.

I don’t see what the trouble is, and I don’t see the pertinence of the objections that Tully raised, unless you’ve misunderstood my question. I didn’t ask whether judges are required to uphold laws they believe to be unjust. I asked whether they are required to uphold laws that actually are unjust, which is a different question.

If there are requirements of justice which are binding, and discoverable, independently of the contents of any statutory or constitutional law, then clearly judges can’t have any duty to overturn a law in light of them. But if you intend to take that line of argument, then you’ll have your own problems to deal with. (Among other things, it entails the awkward conclusion that there are no independent standards for judging one legal system as better from the standpoint of justice than any other. This seems clearly wrong. Part of the reason to prefer modern American courts to the Star Chamber or the Spanish Inquisition or for that matter the American courts during the days of the Fugitive Slave Act, is presumably that the modern American courts do a better job of securing justice. But in order for you to say so, it must be the case that there are some independent requirements of justice against which all four systems can be held up and compared. In any case, if you don’t think so, that’s the substantive position you’ll need to try and defend, God help you.)

If, on the other hand, there are such requirements, then, whatever those requirements may in fact be, there must be at least some conceivable cases in which a case comes before a judge where (1) the statute which the judge is asked to uphold in fact violates one or more of the requirements of justice, and (2) the judge knows about the conflict between the statute and those requirements of justice. My question is about what the judge’s rights and obligations are in such a situation.

What you’re urging is for judges to be invested with the power (I put it prospectively because they certainly don’t have that power now) to eliminate the work of the legislature and substitute in their own judgment. That’s not only pernicious to a democratic system, it obliterates the rule of law, because if the law is whatever the judge in a given case thinks is a just result in that case, no one can know in advance what the law is and take reasonable steps to conform their behavior to it. It becomes a form of secret law, and secret laws are inherently tyrannical.

Well, no, what I asked is whether judges have any duty to uphold laws which are in fact violations of the substantive requirements of interpersonal justice. I’ve neither said nor asked anything about whether judges should be able to throw out laws based on any old belief they happen to have about justice, whether mistaken or not. I’m certainly willing to grant that judges should not throw out laws based on beliefs about justice which are in fact mistaken.

Given that we are talking only about cases in which the law in question actually is unjust, i.e., where enforcing it would involve committing an injustice against one or more identifiable victims, I cannot see any reason to accept your claim that overturning the law in question would involve tyranny, let alone being “inherently tyrannical.” On every definition of “tyranny” I’m aware of, it’s enforcing an unjust law that’s tyrannical, not obstructing its enforcement.

In sum, Judges have no “duty” to collaborate in the enforcement of laws that they personally regard as unjust (in such circumstances they can and ought to resign) …

Again, the question is not about what judges “personally regard as unjust,” but rather what is in fact unjust. So, taking that modification into account, and taking your (well-taken) suggestion that resignation is an alternative option into consideration, I reiterate my question to you, mutatis mutandis:

Is it your view that no judge has a duty to directly collaborate in inflicting an injustice (since she can resign rather than doing so), but that she is bound in conscience to step aside and allow someone else to inflict the injustice, even though she could have obstructed or prevented the injustice from being inflicted?

If so, why? So far the only answer you’ve given is the political expedience of compromise in majoritarian democracy. But if expedience is no excuse for personally collaborating in the sin of commission (which you seem to grant, when you suggest that the judge resign), then I cannot see why it’s a good excuse for the sin of omission, either.

Picture the scene: next February, having clawed itself out of a deep, deep hole, the Democratic party is finally in a position to start pushing its agenda through a Democratic Congress to be signed by a Democratic President. Because this is a hypothetical, we can assume that all this legislation is actually constitutional. But the courts strike down the whole lot, arguing that it’s unjust. Are you happy with such a result? I doubt it.

I almost certainly would be happy with that result, given what the Democratic Party’s agenda has generally been when it has been in power. Perhaps you’re making some unwarranted assumptions about my political views.

The only warrant for the judiciary to strike down state laws on any subject is if they attempt to exercise a power that the federal Constitution has removed from the states or if they exercise a power they would generally possess in a manner that’s illegitimate because it infringes on constiutionally-guaranteed rights ….

What if the state law is unjust?

Do you think that judges have a duty to collaborate in the enforcement of unjust laws? If so, why? If not, wouldn’t it follow that they can rightfully set them aside, whatever the United States Constitution may or may not say on the matter?

Even if we went back to the days of Ellis Island, we didn’t have open borders. In fact America has always had strict rules about how you go about becoming American, some well-founded and some outright racist.

If you mean federal laws that imposed restrictions on who could enter, live in, or work in the country, then it is certainly not true that the U.S. has always had such laws. There were no such laws prior to 1882.

If you mean federal laws that impose restrictions and define procedures for immigrants, once they have arrived and set up in the U.S., to achieve status as naturalized citizens, then it’s true that the U.S. has always had such laws. But naturalization laws aren’t the primary issue in debates over “open borders.” The primary issue is the right to cross the border freely and to live and work where you choose.

And we’d have to figure out rules to govern who could stay in the country while their application was being processed, and what kinds of things they could do during the waiting period (Work? Go home for a visit? Etc.)

What business does the government have subjecting a peaceful Mexican immigrant to a higher level of scrutiny or restriction in the right to engage in everyday activities such as working or visiting home, than they would subject an American citizen to, simply because the object of their scrutiny happens to be Mexican rather than American?

Isn’t that just institutionalized bigotry?

1. I don’t know. It probably depends on the context and the intent with which it was done.

2. No. Being offended doesn’t give you the right to trash or steal somebody else’s private property.

3. No. I generally don’t fly flags at all.

4. No.

5. Yes, and he should pay damages to the barkeep for the destruction of property.

6. No, not unless Jesus stood for vandalism and petty thieving. I don’t think that He did.

Jonathan Payne states “There is a reason for the laws that govern the display of our flag.” But in fact — in spite of what the media have repeatedly, inaccurately claimed — there are no laws that regulate how private citizens can or cannot display an American flag on their own property. The Federal Flag Code (4 U.S.C. §§ 4-10) offers only a set of voluntary guidelines “for the use of such civilians or civilian groups or organizations as may not be required to conform with regulations promulgated by one or more executive departments of the Government of the United States” (4 U.S.C. § 5). It has no enforcement section and assigns no penalties. Unless you are employed by the military or a government agency, there is no federal agency with the authority to impose binding regulations on how you, as a private citizen, display a flag on your own private property.

Ray,

What law would the barkeep face charges under? The Federal Flag Code (4 U.S.C. §§ 4-10) has no enforcement section and defines no penalties. The rules for the time, occassion, position, and manner of display of the flag are voluntary guidelines “for the use of such civilians or civilian groups or organizations as may not be required to conform with regulations promulgated by one or more executive departments of the Government of the United States” (4 U.S.C. § 5). Unless you are in the military or part of a government agency, there is no federal agency that has the authority to impose any binding rules on how you can or cannot display a United States flag on your own private property.

Leland,

So, on your view, as a conservative, it’s O.K. for “a real American hero” to barge into somebody else’s place of business with a combat knife, cut up their private property, and then steal their flag from their own private flag pole?

The chills I get from this video don’t feel like “pride.”

Ah, I see. Well, I applaud your endurance, if you managed to scroll through the whole thing. When I started the blog almost seven years ago, I was not yet an anarchist, although I was interested in and occasionally sympathetic to libertarian and anarchist ideas. So there certainly are some posts in the older parts of the blog that I would not be willing to stand by today. I now believe that Leftist goals can be attained entirely through the abolition of coercive laws and through free association, and in fact will be attained more fully and more reliably through those means; and also that, even if they could not be so achieved, they would not be worth achieving at the cost of violating even one innocent person’s individual liberty. So I hope that what you had in mind can be chalked up to changing views over the years rather than to inconsistency.

On the other hand, there are many more recent cases in which I expressed a desire for a given piece of legislation to pass or to fail to pass, but I don’t see that as necessarily inconsistent with anarchism. Some legislation violates the rights of peaceful people and some respects those rights; some legislation makes government extremely dangerous and some legislation — e.g. bills to repeal the dangerous legislation — helps curb or ameliorate the danger. What I would repudiate from my days as a state Leftist is not concern with legislation per se, but rather the particular pieces of statist coercion that I was willing to support or excuse. As a practical matter, I have become pretty thoroughly disenchanted with the prospects for any meaningful progress through legislation or electoral politics, but I think the issue at stake is one of strategy, not one of anarchist principle.

Anyway, thank you again for the kind words; I’m glad you enjoy the blog. If I’ve managed to be provoke some interesting thoughts then that’s as much as I’ve ever hoped for.