We have far too many criminals, and that bodes ill for our reputation as a free society.
In a free society the law protects our freedom. Otherwise it concerns various administrative matters but always related to this central purpose. For example, military justice concerns how to conduct oneself in the course of protecting our freedom from foreign aggressors, and administrative law concerns how politicians and public officials must behave as they serve us in such a protective capacity.
But today we have zillions of laws that have nothing to do with protecting our liberty. Indeed, the bulk serve to oppress us, in various more or less Draconian ways. Thus, we have laws banning drug use, laws that regulate commerce and laws that license professionals (except for journalists, authors and religious leaders, who are exempted by the First Amendment).
This, of course, is rank injustice, all around. Why should journalists and ministers be exempt from government meddling when the rest of us suffer their intervention on so many fronts? There really is no good reason for such favoritism. Why should the criminal law, especially when it comes to violent crime, observe the ban on prior restraint and other violations of due process while professionals are being regimented — subjected to various rules and fined if they do not comply — by governments, despite having done nothing wrong?
In the face of such injustice within the law, it is not surprising that millions of people treat laws as obstacles for them to negotiate cleverly, not as binding edicts. We do this obviously enough when it comes to tax laws. Nearly everyone is out to keep as much of his or her earnings as the CPAs or their own smarts make possible. The only reason most people comply is the threat of sanctions — jail, fines, etc. Not because the laws are understood to carry moral authority.
In a free society, in contrast, the law would have the only moral authority that justifies its customary resort to force or its threat. This is self-defense, defending oneself from those who embark upon the violation of one’s basic and derivative rights. If you attack me and I resort to violent force to defend myself, I am justified, at least up to the point that I need to fend you off, disarm you and so forth. But if I attack you unprovoked, I am morally wrong and so would be those laws that help you in this kind of conduct. Why? Because of my basic natural human right to my life. The same goes for when I defend my liberty and property — those are the instances when my use of force is morally OK, none other. So, laws that do violence to my rights are also without moral force.
Just law is simply the organized and elaborate expression of this moral fact — force may be used in self-defense, only, never coercively! If the law goes beyond this, it loses its moral authority and gradually the society in which this has happened will be replete with guiltless lawlessness. Which is just what’s happening in America and elsewhere — the only “authority” the law now tends to wield is fear of sanctions, not the conviction that it does what is right.
Some will no doubt protest that the law has, at least in most modern societies, the backing of the vote, does it not? Does it not matter that the majority of the people who reside in a society back some edict? Does that not give the edict its moral authority?
No. Majorities are no less able to do unjust things — including enact bad laws — than can vicious dictators, Caesars, czars and so forth. Mere increase in the numbers of those who violate people’s rights doesn’t make it any less of a violation of rights. Once the laws of a country are mainly comprised of such rights- violating edicts, they stop carrying any moral authority and people merely go along out of fear, not out of moral conviction and respect.
Tibor Machan advises Freedom Communications, parent company of this newspaper.