Tuesday, March 20, 2012
I believe it's the law
I often hear the phrase "it's the law" from random people, family members, friends, enemies, and well-wishers. People use the phrase the same way as they would say "square root of 121 is 11" or "F = ma". I.e., some binding truth.
In reality, yes, laws should be binding. But not positive secular laws. Positive secular laws are just some arbitrary rules that a bunch of people with most guns came up with for the rest of people. So, what is the moral or praxeological force of the argument "It's the law"? Why should I care? (Obviously, if there is a police thug around, I should care, but that's the same as saying "This is Black Ravens' turf". I.e., I should care for the same reason I should be careful walking late at night on some gang's territory — because thugs are dangerous. But imagine if I could do something that a particular gang dislikes without them finding out — why shouldn't I?)
Now, there is a concept of natural laws. For example, there are natural laws of physics. They are binding in the sense that you have no choice but live according to them. If you walk out of the tenth floor's window, you will have no choice but to learn about the law of gravitation.
There are laws of economics. They are equally binding. For instance, if the government enacts a minimum wage regulation, this leads to a greater unemployment among the low-wage earners, becomes it becomes unprofitable to hire them at the minimum wage if the latter is greater than the marginal profit one might derive from them.
There are laws of linguistics. The word peace is a synonym of tranquility, while the word piece is a synonym of portion. What is the source of this law? Not the dictionary. If one published a dictionary that said that dog is "a flying reptile that makes hissing sounds", you would say that the author of the dictionary made a mistake. What dictionary writers do is observe the behavior of people and codify it, not much differently from the way that neuroscientists observe the behavior of neurons or particle physicists observe the behavior of subatomic particles.
So, what about social law? Well, it's no different. If people want to speak to each other, they have to obey the laws of a particular language that spontaneously arose in evolutionary way as a result of people communicating with each other. If people want to live in peace and tranquility, they have to observe natural laws of society. A simple example of a natural raw is driving on the right side in the US and on the left side in the UK. These laws are in place not because some organization with a lot of guns decided so, but because if you're going to go on the left side of the road in the US, that would be like saying "accurate" when you mean "fastidious" (the two words are Russian–English linguistic "false friends").
But natural civil laws are more than just customs. They are natural ways for people to live in tranquility, which is the whole point of civil laws. (Note that the purpose of the civil laws is not to uphold morality or increase wealth. The former is done by religious laws or concept that are similar to religion. The latter is done by laws of economics. I know it might sound shocking, but I don't see why. It's also not the point of the civil laws to maximize your pet fish's lifespan or make sure your shoes fit well.)
Sometimes living in tranquility depends on observing a custom (such as driving on the side of the road on which the majority is driving); sometimes it depends simply on using logic to figure out what sort of behavior leads to minimization of conflict. The concept of natural rights is one such logical tool. Logically, the best way to minimize conflict is to assign claims to property between individuals based on homesteading or transfer of property. Law is necessary to codify and acknowledge the natural rights — not to create them.
[It is true that positive law exists in Judaism, but in that case it is based on Divine Law, which is a kind of natural law. I.e., G-d tells Chazal that they have a responsibility to safeguard Torah and therefore can (and must, if they find so necessary) create new laws that would be binding.
But you should notice that in Judaism today there is also the concept of codification of existing laws and legal opinions and customs; not arbitrary positive legislation.]
So, the next time someone tells you that something is a law because the government said so, tell him that that's not the case. The government cannot create laws. It can only acknowledge them. When the government makes an edict that contradicts natural rights (for instance, that one must pay one's taxes or one must do certain repairs to one's car or one can force someone else to pay for his health insurance), the edict's binding force from natural legal point of view is the same as the binding force of an entry in a dictionary that defines "cactus" as "a prehistoric marine animal". You may stick to your guns and use that definition, but it won't help you reach your goal.
By the way, I am not, by far, the first one to use this concept. Torah says that if Hashem did not give us certain rules of behavior we could learn them from animals or use our reason to come up with them (not all of them are civil laws; some are laws of morality, for instance, modesty, or laws of hygiene). The concept of natural law was upheld by ancient Greek philosophers, by medieval Christian and Muslim philosophers, by Western philosophers of the 17th–19th centuries; it is the concept that is the foundation of the Declaration of Independence.
The above was inspired by this video:
For more on the topic of natural laws, listen to this lecture — or watch the following video (in the first part of the lecture, he discusses the mechanism through which private laws would be "discovered" or "determined" in a free society):
For historic examples of natural laws in a society, see:
— Medieval Iceland as an example of private law creation and enforcement
— Medieval Ireland: an example of a libertarian legal system