Tuesday, February 12, 2013

Legitimate use of the government to create customs

If you read my blog, you must be used to the idea that I consider government an illegal and an immoral organization whose laws for the most part are non-binding. I write "for the most part" because there is a case where I think the government's laws are binding today, and in my opinion, that is a legitimate application of the concept of dina d'malchusa dina.

But I can also imagine a situation where in a free, anarchist society some people might set up a government which would have no legal powers over the people, but whose laws might be binding.

First, let me quote myself from an earlier post:
When people interact, they do so within certain customs. Customs are implicit understandings between people that need not be negotiated explicitly. That is why the majority's custom may be binding upon a minority (as long as the minority interacts with the majority in the area that the custom applies to). For instance, if in some locale, upon hiring a worker to paint your house, it is customary to pay him for a half-an-hour lunch break, then the workers have a right to demand the break. If you did not pay them for the break time, you stole from them (or committed a form of stealing, called neshek, "withholding a debt").
Customs may arise spontaneously. Customs may also be set up by the authorities. For instance, in the US people drive on the right side of the road. In the UK — on the left. It could be that these customs arose spontaneously. It might also be that they were set up top-down, by some authority. It doesn't matter. As long as the majority abide by this custom, it becomes binding on the minorities and individuals (as long as they share the same commonly used road with the majority).
Because the laws of the government practically speaking create such customs (whether government coercion is ideal or moral doesn't matter; the fact is that it creates patterns of human behavior), "dina demalchusa dina" — the law of the land is binding.
Note, first of all, that this refers only to the laws which create patterns of behavior. Not arbitrary positive regulations or restriction (such as "it's illegal to sell used mattresses in Massachusetts"). Second, the chazakah (custom) mentioned here is not regarding the acceptance of the government, but regarding  the acceptance (or tolerance, or obedience under threat of punishment) of its laws as customs. Hence the popular translation of dina demalchusa dina: "the law of the land is the law". The law of the land: meaning, its people's customs.
 So, when might a group of people create a government that would have no authority but some of whose laws might be binding?

Imagine a situation when 1000 people fly to another solar system and colonize a planet. Since they come from many different cultures and societies, they so far do not have a common custom of any sort. But, they agree not to aggress against each other (or they form protection agencies to prevent aggression).

Next, say 600 people decide to form a government. They create some sort of council and vote 5 people in to it (let's say 550 people vote for those 5 members). That council creates positive laws for those 600 people.

Under libertarian principles, those laws are still not binding. Just because 550 out of 1000 people voted for some "government" doesn't mean anything.

But then, the 600 sheeple people start observing those laws. For instance, they observe the decision of the "government" that whenever someone sells an item, he sells it "as is", without any warning or return policy necessary. Or, for instance, they observe the decision that when the item is sold, there is a 30-day return period, and if the item is somehow damaged, then the buyers have to be notified; otherwise, the sale is retroactively void.

As I said, just because the government said so doesn't mean anything. But when the hive-people obey their government and start carrying out the edict, their behavior sets a custom.

Therefore, since they are technically in majority, it can be argued that this custom has to be respected even by those 400 people who did not accept the "government" as their own.

I think this opinion coincides quite well with one group of the halachic opinions about dina d'malchusa dina. And I think the reasoning I provided above for the DDD works quite well.

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