Bryan Caplan  

Two Questions for People Who Respect the Law

PRINT
Toward a World Central Bank?... David Autor on the Job Market(...
I don't respect the law.  If my conscience says one thing, and the law says another, I often follow the law to avoid punishment.  But in my eyes, legality per se has zero moral weight.

My position is admittedly controversial.  As far I can tell, most people respect the law.  They think that making X illegal at least tends to cause X to be immoral as well.  Indeed, many people seem to think that making X illegal almost automatically makes X immoral as well.  The key, though, is "almost."  The biggest fan of the law admits that, German law notwithstanding, it's OK to try to escape from Auschwitz.  And, American law notwithstanding, maybe it's OK to drive 56 mph in a 55 mph zone.

In any case, I've got two questions for readers who respect the law more than I do.  Would you be so kind as to indulge me?

1. What is the worst law you think people are still morally obliged to obey?

2. What is the least bad law you think people are morally permitted to break?

I'm very curious to hear your answers.


Comments and Sharing





COMMENTS (51 to date)
nazgulnarsil writes:

I don't have a useful answer as my position lies with yours. I will note that people may have an intuitive or subconscious grasp that the law as monolithic entity is an important part of enforcing norms. A bunch of people all independently deciding which laws they like and do not like is bad for the tribe. Another frictional cost of widely heterogeneous values in a society.

Andy Hallman writes:

I completely agree with you, Bryan.

The only thing I can think of in defense of the notion that law is morally binding is that, if following laws usually promotes happiness, and breaking laws promotes suffering, then it seems logical for us to adopt a presumption in favor of following law.

This will, of course, depend on whether laws in a given jurisdiction are generally good. Most people don't have a problem with violating German law under the Nazis because their laws were not generally good.

Further, the presumption in favor of law is not absolute. Suppose 99 percent of the laws in a jurisdiction are good. If there is strong evidence that the law in question is an exception to the rule and is unjust (such as immigration restrictions) then the presumption against law breaking is overcome.

Richard Squire writes:

No responsible person would say that the law has "zero moral weight." Sorry Bryan, but that's not a mature man's position.

Reason 1: What nazgulnarsil said. Without law we have anarchy and chaos. Civilization requires law. Sometimes we obey bad laws in order to encourage others to obey good laws.

Reason 2: Humility. You may disagree with a law but you might be wrong. Laws reflect, to a certain extent, collective wisdom. You defer to the majority because you know you are fallible. Deference is not total, of course -- you must also obey your conscience. You obey the law on the margin. But the law, for this reason, has moral weight, even if the weight is not absolute.

John Thacker writes:

There are situations which have essentially no moral content absent a law or custom, but where the law or custom establishes a standard and I think it is at least somewhat immoral to disobey.

For example, which side of the street to drive on is not a moral issue except that the law establishes a standard. Ignoring that causes harm.

rapscallion writes:

I feel like one's moral obligations toward a set of laws depends upon how freely one's chosen to live under their jurisdiction. If you're an adult in the U.S., emigration is relatively easy, so by staying here you've entered an implicit agreement with the government to be obedient, and hence you have to do everything the government says. If you're a dissident in Cuba or China who's been locked up and not allowed to leave, on the other hand, you have no obligations toward the government whatsoever.

James C writes:

This line of thinking also brings up the question of whether jury nullification is legal or not.

Sam writes:

I'm a bit confused how you're using the term "people" here. If you mean people as an aggregate noun, that alters my answer relative to the singular treatment. In the collective, I find no moral objection to violating insider trading laws, for example. Still, knowing your predilection for plain interpretation, I'll answer in the spirit you asked.

1. Pick any of the raft of near-zero marginal cost health and safety regulations on citizens: helmet laws, seatbelt statues, consumer warning labels (I'm willing to yield on this point if pressed), or inframarginal child labor laws. Any of the flotilla of non-binding nuisance laws offend the sensibilities of self-determination and serve largely to feed the maw of leviathan. Though asinine paternalistic laws may be bad in the sense of hobbling Tiebout competition or other sources of market discipline, I don't think they're horrible in the Higgsian sense that overall life satisfaction of folks will, ex ante, suffer on their account. The moral imperative to bear piddling legislation is the same as the natural impulse to conform. Imagine that you're a good Bayesian and you accurately recognize that there is a very small chance that your newborn daughter will die in a car accident on the way home from the hospital, and that the marginal benefit of the risk mitigation offered by a child car seat less than six months old is less than the premium you have to pay to ensure your vehicle is compliant. I'd say it's close enough to moral to chow down on that bullet and buy the damned car seat at the prevailing market price. Morality includes considerations of harmony.

2. Most of them. The law is an ass.

cal poppertoof writes:

im surprised at some of the responses here. for such a libertarian site i would not expect a commenter to invoke the tacit consent argument.

and as for law holding zero moral weight leading to anarchy: are some of the readers aware bryan considers himself an anarchist?

Kevin V writes:

I like to piggyback the authority of law on the authority of moral norms. I can sketch the move if you like, but hold that for a moment. I don't think I'm unreasonable to think that, in general, if my social group holds that I have a duty to X, I take myself to have a reason to X, an obligation to X, in fact, unless I have a very strong first-personal reason, a reason of conscience, to disobey. Of course, there are some exceptions here. But I take it that your questions are much more easily and more contextually answerable if we focus on recognized and socially enforced moral norms rather than laws. You don't use your conscience to determine all of your duties; instead, social morality gives structure for you to even understand your duties. In many ways, social morality sets the bar of conscience and provides weighty reasons that can override private judgment.

Now suppose that the only function of the law was to improve rules of social morality in ways that all reasonable persons take to be an improvement and remove rules that reasonable persons have defeaters for. If the political order could reliably perform this task, at least sufficient to be an improvement over a state of nature with morality but no politics, then I'd say that the political order had authority, that is, I'd have a duty to obey the law as made by the legal authorities available. Of course, I'd still be bound to judge for myself whether the political authority was better than no authority (or the relevant baseline, whatever you'd like), but I submit that such a judgment would legitimate much of what modern liberal, democratic regimes require of us. For instance, traffic law by and large is an improvement over pure moral coordination and having a political order, even a state, that enforces these laws seems to be an improvement. For this reason, I think traffic laws are authoritative. After all, I get mad when others disobey them at cost to me and my sense of reciprocity and fairness leads me to apply the same standards to myself. But I accept my legal obligations on grounds other than conscience alone and would give the law great weight in my deliberations if a conflict of conscience arose.

Now, and this is key, I do not think I owe the *state* obedience but rather my fellow citizens with whom I share a regular social world. The laws have authority in virtue of treating us all as free and equal and helping us to coordinate to pursue our good.

Chongo writes:

The problem is when law becomes immoral or when the act of enforcing the law. Take speeding for instance our driving laws are from 50 years ago yet we all know the technology of our vehicles have increased performance in every way. We all also know of a time when an officer would pull you over and give you a warning. Now even though our vehicles can handle the speed and stop appropriately we receive a ticket because it is more important for the officer to receive the revenue from the ticket.
Hence there is a discord, is the officer more woried about safety or the revenue. Then that in an of itself becomes the moral issue, and the fight.

bill shoe writes:

I don't buy the framing that Bryan's questions imply.

I am a "rule of law" person. This does not mean I think legality confers morality. I simply think that we should recognize that the current law is what the current law is. This sounds too obvious to have significance but it's actually quite rare.

If I, as a rule-of-law person, think that current immigration law is immoral because immigration restrictions cause human suffering then I will do two things:

1. I will try to change the law.
2. I will try to help people get around the law.

However, I will not pretend the law says something that it clearly does not. I will not pretend that illegal immigrants are, uh, legal.

The general lack of interest in this type of rule-of-law consistency is what prevents the actual laws from being changed/improved in the long run.

Phil writes:

Geez, I wish a few readers would actually answer Bryan's questions.

John Jenkins writes:

The law (or at least legal scholars) have long recognized the distinction between things that are "wrong in themselves" (malum in se) and things that are merely prohibited (malum prohibitum).

But, is this intro to philosophy? Most people work this out for themselves reading the Crito. http://classics.mit.edu/Plato/crito.html

I think the right conclusion is that there is a presumption in favor of following the law, but when the law compels you to commit a moral wrong, you should not obey, in the face of the consequences (which was Socrates'/Plato's conclusion, though I am more of an Aristotle guy in most things).

Steven H. Noble writes:

I have an answer(-ish) for 1) as I've been thinking of this problem recently. I don't have any input on 2) unfortunately.

On 1) I think perjury is a candidate. If lying is immoral it is only weakly immoral; I don't think it is hard for anyone to come up with examples where telling a lie is virtuous. And there is certainly some perjury that on the margin would be a net win for society: eg. places where a witness is compelled to implicate someone of a crime that the witness subjectively believes is not actually immoral.

However, if there weren't a law against perjury that people felt compelled to follow then I believe it's fair to say that the error in conviction outcomes would radically increase (both alpha and beta errors). Possibly to the point where having a judicial system was a net loss. Certainly the result is a worse quality of life for most of us.

You would have innocent people under constant stress that they may be convicted of a crime of which they are innocent. And you would have people less concerned with committing crimes (including immoral ones) because there's a high chance that they can't be convicted.

So I would say not perjuring when perjuring would protect someone who broke a law with a moral act is the worst law you should follow. Or at least it is the worst law that should be enforced.

Bob Murphy writes:

I can't answer it yet, Bryan, because I don't like the way you framed it. I think you mean "legislation" and not "law," for one thing.

Does your position carry over to customs too, Bryan? E.g. do you just tip at restaurants where you will go back and you don't want them to spit in your soup?

In general I would say I have the utmost respect for "the law," but I have a lot of disrespect for many acts of legislation in the US right now. That's partly why I would much rather live in a (more) voluntarily society; the laws there would be so much more respectable.

Mr. Econotarian writes:

I'll throw my weight behind the "rule of law is generally a good thing" crowd. I believe that community respect for law provides a public good whose benefits outweigh the costs on average. Plenty of people think about breaking moral laws every day. I believe that there is some deterrent effect due to respect for law in general that helps those infractions from occurring.

However the laws that are most immoral or those the average person is unwilling to truly follow (such as immigration and drug laws) break down respect for rule of law.

People get shot over illegal drugs and die in the desert due to immigration laws. Florist licensing is not generally associated with violence, even though it is a stupid law and should be eliminated.

gator80 writes:

I don't know if I'm a reader who respects the law more than you or if it's least bad or not but I will always run a red light late at night when I see no headlights in any direction. (Well, ok, I stop first, because I don't want to die, not because it's a law.)

Rohan writes:

1. Maybe payment of taxes. I mean, it's a forcible transfer of thousands of dollars from you to someone else. But the government uses that money for necessary things (well, theoretically at least). I think everyone should pay their taxes as levied.

2. Probably jaywalking. The laws to prevent jaywalking are not frivolous at all, and are aimed at avoiding cars hitting pedestrians, which is a solid concern. That being said, crossing a street when it's safe is a reasonable judgement call, depending on the amount of traffic.

John David Galt writes:

I share the original poster's perspective and wish everybody did.

When the law disagrees with what is moral, the choice of whether to obey it should always be pragmatic. (Which does not imply short term thinking.)

Martin writes:

1. What is the worst law you think people are still morally obliged to obey?

2. What is the least bad law you think people are morally permitted to break?

Answer 1: Tax law. As Holmes said, 'taxes are what we pay for a civilized society'. I disagree with many of those laws, I think they're counter-productive and even outright damaging, but they're part of the rule of the game and collectively we can change those rules. That that is hard does not give me the right to break those rules.

Answer 2: Do not cross signs for pedestrians. I see those more as guidelines when it is supposedly safe to cross, not as the only moment you should cross. They become useful though when it is really busy.

I can't answer it yet, Bryan, because I don't like the way you framed it. I think you mean "legislation" and not "law," for one thing.

I think Murphy is correct. Bryan isn't properly distinguishing between law (conventions against torts that are Nash equilibrium solutions, like rules against murder or theft) and legislation ("often but the tyrant's will"). When this distinction is made, the issue comes into much sharper view.

Jenni Tennquist writes:

Richard Squire wrote:
No responsible person would say that the law has "zero moral weight." Sorry Bryan, but that's not a mature man's position.

Reason 1: What nazgulnarsil said. Without law we have anarchy and chaos. Civilization requires law. Sometimes we obey bad laws in order to encourage others to obey good laws.

I shudder to think that the law is all that stands between an ordered society and chaos. It seems simplistic to say that mere obedience creates order and that devotion to that order encourages others to be more obedient as well.
In regards to a "mature man's position" one could then say that Kristalnacht and Auschwitz were necessary to the greater framework of an ordered German society. The bad law was upheld so that greater order of society would prevail.

Your original paragraph is actually a finessed version of the failed defense at the Nuremberg trials.

As to Bryan's question:

1. I won't get points for creative thinking here but the worst law I'm morally obliged to follow is tax law. The money I have earned is taken from me by force, at a percentage set without precision or logic to fund projects and spending which often run contrary to my own self interest.

2. Drug and prostitution edicts. The order of society doesn't depend, nor will it ever depend on any substance that I may imbibe or of sexual partners whom I pay or who may compensate me for a transaction which is mutually agreed upon, fully consented to, and completed in private.


Bob Knaus writes:

Whoa, easy there Bryan. A couple thousand years ago, a Jewish carpenter said the same thing. The local authorities had him put on show trial and executed by occupation troops. Wouldn't want you to be mistaken for one of his followers.

Matthew Munoz writes:
I don't respect the law. If my conscience says one thing, and the law says another, I often follow the law to avoid punishment. But in my eyes, legality per se has zero moral weight.

I think this sort of statement is why Hayek called himself a Burkean Whig rather than a libertarian. You're criticizing the immorality of laws instead of asking yourself why any law should ever be in concordance with the common morality in the first place.

Laws can be and often are the result of emergent information-gathering processes with analogies to markets (I'm thinking of common-law institutions in particular here). In these cases, there is a strong presumption against violating a law you think is immoral, since it's likely that your assumptions don't include a enough information about what kind of costs you are imposing.

Answers:

1. The common-law rule that allows a victim's family no compensation for the value of a person's life (as opposed to projected future income, etc.). David Friedman has a description of this rule in Law's Order.

2. A minor tort. If law is efficient, and the tortfeasor is willing to incur the penalties, then the violation is efficient.

J Storrs Hall writes:

Bryan, does your moral code have anything to say about driving on the right side of the road? There are many things that we don't think of as being a moral issue, which nonetheless are a desirable thing for society as a whole.

I don't think making something illegal makes it immoral, but there are some things that are immoral that have been made illegal. And there are many things that are simply attempts at useful organization -- not right in themselves, but a good idea for every to settle on the same arbitrary scheme, like which side of the road to drive on.

So we can find boundaries within today's (enormously overblown and corrupt) body of law between laws that embody moral principles, and ones that don't, and boundaries between laws we should obey, and ones we shouldn't, but they aren't the same boundaries.

JVDeLong writes:

A fundamental issue is that many laws now are the product of capture of the regulatory or the legislative process by special interests.

Should one feel morally bound to install a low-flow shower head or toilet? Or to abhor incandescent light bulbs? Of course not, once one studies the economics of these rules. Indeed, I would argue that disobedience is the moral course.

As to the argument that one should obey but work to change it -- I beg to differ. I will not spend my life trying to overturn every bit of a nonsense that our multitude of special interests manages to ram through. That would be insane.

The real moral defaulters are those who free ride on the public's respect for the rule of law to promote their private interests, relying on rational ignorance to keep people from penetrating their cover stories.

Matt writes:

I believe in the rule of law in so much that I think if you're going to break the law you have to be willing to accept the consequences. The caveat to this is if you would accept violence as a means to change the law (revolution). So:

1. A law that is not bad enough to justify revolution.

2. Any law with acceptable consequences.

It's important to note that for #1, you only have to justify revolution, not carry it out. There is almost always a better way (MLK), and most people aren't one man armies. #2 is separate from one's own morality. I might think that both stealing and speeding have acceptable consequences, but I still think stealing is immoral.

Law is valid because of two things I find to be inherent truths. #1. People will live close in societies. #2. There will be a violent order. If you weren't ruled by the government then you would be ruled by the mafia. Likewise, if you weren't ruled by the American government you would be ruled by the Nazis.

I think if you don't like law you should fight to change it. If that's too much trouble, then accept the consequences. If that's not acceptable, then join a revolution.

David N writes:

I'm not sure if it's your ideas or just the way you explain them, but this is not the first time the word "peurile" has come to mind.

You must be a better man than me because I find that sometimes in life my conscience has arrived late or failed altogether to provide guidance. If I could borrow your "most people" sampler for a minute I think it would show that most people have a similar flaw. So yes, I am grateful for and have respect for the Law. Even so, just like you and St. Augustine, I agree that "an unjust law is no law at all."

To answer your questions properly requires context not provided. As to question #1, I am generally ok with someone abusing illegal drugs in the privacy of their own home, yet my moral stance changes drastically when there are children in the home.

As to question #2, I can conceive of, and in fact have lived through, a situation where kidnapping would not have troubled my conscience. The context matters. That's why we have the Law and trials instead of Caplanesque predetermination.

Scott writes:

As Marc Stevens points out in his excellent book Adventures in Legal Land, Law is simply Opinion backed by a gun.

- Scott

Daublin writes:

Be more precise. Do you mean American law, or law in general?

I bet you respect the laws of groups you want to be a healthy member of. For example, consider the rules (laws) of RPG groups you play in. Do you feel an obligation to follow the rules even when no one would catch you? Is it fair to call it a moral obligation?

Robin Hanson recently posted about what counts as his "tribe". He writes that libertarians have much smaller groups that they consider their tribe.

http://www.overcomingbias.com/2011/09/are-nations-tribes.html


That certainly jives with me. I don't respect American law. The laws that I care about are for much smaller groups.

For example, I'd feel dirty breaking the rules at a bridge club. I'd feel I was doing something wrong if I lied on my paperwork at the company I work at.

However, I don't feel bad about avoiding low-flow faucets. If I could get my hands on a dish washer that actually dries dishes, I wouldn't feel bad about using it, no matter what its energy label. I'd just worry about getting caught.

While I identify as American, I don't really feel like the U.S. government is our spiritual head. They are more like a self-appointed neighborhood association that nobody wants but most people can't be bothered to fool with. I didn't vote for them, I don't approve of them, and I don't see a lot of evidence that they give a crap about us. Why, indeed, should I care about their laws?

Lord writes:

Maybe it's OK to drive 56 mph in a 55 mph zone, but it certainly isn't to drive 110 mph. In setting a common rule, we increase common safety, and ignoring that jeopardizes it. But rules have to be knowable and specific so we set something that is reasonable for most people under most conditions and make allowances for attentiveness and variation.

Tax law would have to be 1. Attempts to enforce specific views of morality in the form of blue laws has to be 2.

Peter H writes:

I think the law gives me a prima facie reason to re-check my moral intuition in the event they disagree, but otherwise has no moral weight in and of itself. That is, when a law is created, it means a substantial number of people have given a moral opinion X. Even if mine is Y, that law is probably a reason for me to think about why they would agree on X as opposed to Y (or Z). If I can see clearly why they said X, and I find that reasoning faulty, that ends the discussion. If I can't see why they chose X, it generally means that I should probably look into the question further, because I may be missing something that many people find important, and thus my moral sensibility about the question is probably lacking some important detail(s).

Tim writes:

1. What is the worst law you think people are still morally obliged to obey?
I don't have a good answer. Perhaps patent law? I think it's wretched, especially in areas like healthcare. However, there is a case for intellectual property rights that must be respected.

2. What is the least bad law you think people are morally permitted to break?
I'll go with seatbelt mandates. Not much downside to being "required" to wear it, really.

Jenni Tennquist writes:

Maybe it's OK to drive 56 mph in a 55 mph zone, but it certainly isn't to drive 110 mph. In setting a common rule, we increase common safety, and ignoring that jeopardizes it.

Or not.
Often when I'm on the interstate and driving at the stated lawful rate of 65 mph, most other drivers are going 70-75 mph, some even faster. My obedience to the speed limit causes a good number of drivers to change lanes which increases the possibility of collision and a hazard to other drivers and themselves.
In this case, following the law by obeying the speed limit creates an external risk factor. The prudent action would be, within reason, to go with the flow of the moving traffic, but there is potential legal penalty involved in exceeding the speed limit, even if it would be safer to do so.


twv writes:

1. What is the worst law you think people are still morally obliged to obey?

If you mean "just" for moral, then the answer is NONE. Not one. All obedience to bad law is prudential in nature. (In my opinion, prudence is also moral, but I think I know what you meant.)

2. What is the least bad law you think people are morally permitted to break?

Go ahead: Roll through stop signs, if you have a clear view and see no one coming, then roll, don't stop and go.

Daniil Gorbatenko writes:

Bryan, you should have written "legislation has zero moral weight", not law.

Philo writes:

There might be a fairness issue about a bad law that was imposed very widely. Suppose a tax was imposed on X, and that this was a very bad law (or regulation?), that X morally ought not to be taxed. Suppose further that most people obey the law because they cannot evade it--they would be found out and prosecuted if they did not pay the tax on X. (Almost everyone has X, and so is subject to the tax.) You, exceptionally, can evade the tax and not be found out. But then you will be getting an advantage over almost everyone else: they pay the tax (because they have to), you don't. Might this *unfairness* count *morally* against your evading the tax?

steve writes:

1. What is the worst law you think people are still morally obliged to obey?

This is a very difficult question because of the word morally. I would just go along with the other posters and say paying taxes is the worst law one should obey for self-preservation reasons. But, I wouldn't go so far as calling it a moral obligation. I think the various flavors of tax protestors are foolish not immoral.

I will have to second one of the previous posters who suggested perjury. Moral lies always fall into a utilitarian grey zone anyway. I don't have a problem with saying that in a court of law one should not feel morally bound by the potentially bad consequences of the truth since this burden is being explicitly carried by the judge or the jury as the case may be. Of course, this only applies when one has a reasonable expectation of good faith on the part of the court and not in kangaroo courts.


2. What is the least bad law you think people are morally permitted to break?

Least bad? As in trivially inconsequential law. Or, perhaps you are looking for a law that is generally believed to have good consequences that it is not immoral to break.

I will have to go with assault. I consider this a good law. However, under the right conditions, say unwanted persistent sexual advances towards my wife or daughter, I would not consider it immoral to pop the guy. Although, I would expect to suffer the consequences, hopeing the judge will understand and give me a light sentence.

Philo writes:

One reason for obeying the law, as for following local customs, is *coordination*: other people act in the expectation that you (and still others) will show at least some deference to the law. This is a generalization of J. Storrs Hall's driving on the right.

Of course, the strength of this consideration will vary from case to case.

Bret Sikkink writes:

When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.
-Bastiat

Justin writes:

Respect for authority and the law is a prosocial trait which is essential for human cooperation. I think it is odd that libertarians, who are rightly skeptical if the ability of elites to understand the implications if thousands of decentralized transactions when it comes to markets, but then believe they fully understand other decentralized institutions like law, culture, and social norms.

A conservative is someone how applies libertarian epistemology consistently.

* because this is the Internet, none of this entails that there isn't government failure or culture failure.

Justin writes:

Note #1: sorry about the typos. I should stop posting in my iPhone.

Note #2: Matthew Munoz' comment above was excellent.

jim object writes:

I think we all know what he meant by law.

That being said, I figured there would be a lot more backbone among Caplan commenters.

1. Nobody is required to follow any immoraql law.

2. Everyone is permitted to break every immoral law.

People, I don't think it makes me a raging college Rothbardian to say that you're all above the law. I'm certainly not a backpack anarchist, and I don't think anyone would call Bryan one either, and he seems to agree with me. Or rather, I agree with him.

Maybe many of you are libertarians who are simply exhausted. I understand that. Take measures to rediscover your passion for liberty, not just your understanding of it.

Thank god-like-atheist-thing (joking) for people like Bryan, and Murray, and Ayn who would rather be seen as quacks, and maybe go mad and become quacks, than ever accept the saddle.

Its a tough road. I hope I still have my backbone and sanity in ten and twenty years. Its worth the gamble to lose the latter to save the former.

Cosmotarian writes:

First. The example of escaping from Auschwiz is unfortunately a bad example since the Holocaust was according to national socialist (nazi) laws illegal even according to the national socialist own Nuremberg racial laws. As well as German criminal law at the time. National Socialist War Criminals could have been tried and executed under the German Criminal Code and under national socialist laws. It would have given the Nuremberg War Criminal trials a far greater legitimacy since only German and Japanese War Criminals were tried and no Allied soldier was.   For those that want a Hollywood take on the illegality of the Holocaust I recommend the movie The Conspiracy starring Kenneth Branagh as Heydrich. 

The next problem is whether you believe in Natural Rights aka Rule of Law (in the US called Originalism)  or are a believer in legal positivism aka the law is what the lawgiver says it is (in the US called The Living Constitution theory created by Woodrow Wilson and today's foremost proponent is our president Obama). 

If you are an Originalist laws can be immoral if they go against the intent of the Constitution. If you are a legal positivist there are no immoral laws if they are implemented according to established democratic principles. 

I assume that Bryan Caplan for this discussion takes the Originalist position of nearly all classic liberals and libertarians. 

To his questions I think that laws that are to be followed are laws regarding upholding of property rights, the sanctity of contracts and civil conflict resolution. The backbone of the free market. 

Laws that can be seen as void are all laws based on (religious) morality, laws prohibiting certain sexual behavior, prohibiting drug use, prohibiting prostitution, prohibiting gambling. For me all tax laws that are of a redistributive nature only can be disregarded i.e. marginal taxation, wealth taxes, estate taxes as well as special rules punishing business owners. 

mtraven writes:

I am surprised to find this attitude from a libertarian economist.

Libertarians, in my understanding, worship property; and without the law there is no property (other than, perhaps, what you can hold in your hand). I would guess that the great bulk of legal activity is involved in maintaing and adjudicating claims about property (contract law, eg).

Disrespect for the law thus means disrespect for the elaborate mechanisms of ownership that define a complex society and economy. That's OK with me, but again, very odd to hear from a libertarian.

Perhaps you are becoming an anarcho-communist?

Charles R. Williams writes:

There is a general moral obligation to obey the law. Exceptions exist where the law interferes with some natural right or where the law conflicts with a higher obligation. There is a natural right to educate your children and an obligation to do so. Any law that interferes with that right - mandatory school attendance for example - is subordinated to the natural right. Parents can morally remove their children from public schools that interfere with their proper education. We are certainly obligated to obey the federal income tax code. It is a monstrous law. It's hard to think of the most trivial law we are entitled to break. One example might be the state of Ohio's use tax on internet purchases. This law is clearly unconstitutional (no matter what courts have said about similar laws). Therefore it does not bind in conscience. In that vein I would say that any law that is never enforced is not a true law. The moral obligation to obey the law comes from the benefits to living in a community and if a law is unenforced or unenforceable then I do not receive the benefit of others' obedience to that law.

Cryptomys writes:

1. What is the worst law you think people are still morally obliged to obey?

Registering purchases of pseudoephedrine.

2. What is the least bad law you think people are morally permitted to break?

This is trickier because in general there is a defense of necessity in the criminal law. I would say something like violating the speed limit in a situation where, for example, you had to transport someone to the hospital and no ambulance was available, but the defense of necessity would probably work in such situations anyway.

"As far I can tell, most people respect the law. They think that making X illegal at least tends to cause X to be immoral as well." That may be what most people think, but legal commentators generally distinguish between laws against acts that are malum in se and laws forbidding acts that are merely malum prohibitum. Malum is se refers to laws, like homicide laws, which are necessary in some form because otherwise society would collapse. Malum prohibitum refers to regulatory laws, like laws requiring that taxes be reported, laws against the possession of marijuana, laws prohibiting ticket scalping, and such. There is a good discussion of this in Vincent Bugliosi's book about drug policy The Phoenix Solution.

Phil writes:

Here's a similar question I'd like to see Bryan address:

If a German policeman tries to arrest you for escaping from Auschwitz, it's morally OK to kill him and escape anyway. So, sometimes, it's OK to kill enforcers when they are enforcing an immoral law.

What's the least bad law for which it is moral to kill the enforcers? Assume that you get away with the killing, and because of the killing you get away with the original crime.

And, of course, your answer would need to take the level of punishment into account. Assume something realistic.

For instance: suppose you and a friend are responsible and consensual users of recreational drugs. You are about to trade a kilo of heroin with your friend for a kilo of cocaine. A policeman sees you and tries to arrest you. The punishment for trafficking that much cocaine/heroin is life in prison.

Which side of the line does that fall on? Is it close to the line?

Larry Ruane writes:

I like to ask people who have an overly-developed sense of always obeying the law: You are convicted of a crime you know you didn't commit. Is it moral for you to escape if you get the chance, even though it is illegal to escape from prison?

Forth writes:

When I consider a law, I can usualy see *why* a law is enacted, or at least I think I can. Laws aren't put into place to provide a nuisance, they're there to prevent or mitigate a problem, or cater to overwhelming political pressure to deal with a perceived problem. The problem with breaking laws entirely of my own cogniscience are that 1: I might not actually be correct about why that law is in place and wind up exposing myself or someone else to danger and 2: even if I do have a complete understanding of the issues surrounding that law, not everyone else does. If I unilaterally break the law, I can hardly expect enyone else to do otherwise and some people have a really BAD understanding of how the world works. I don't want THEM unilaterally breaking the law because people are going to get hurt. So, unless I can see that obeying the law presents a definite danger to myself or others I'm inclined to just go ahead and obey them. Never unthinkingly, but I do regardless. It seldom costs me anything worth worrying about and I'm not conceited enough to think that I'm cleverer than everyone else.

NonEntity writes:

First off let me clearly state that I think violence only begets more violence, so I don't think that a violent response is anything but the very last choice, if that. That said, philosophically I have these thoughts, and I think Darwin and evolution may support them.

Another posted:

What's the least bad law for which it is moral to kill the enforcers? Assume that you get away with the killing, and because of the killing you get away with the original crime.

Considering that, at least in modern America, almost any crime down to a parking ticket, is subject to kidnapping and incarceration - and death if you resist - I would philosophically consider any such kidnapping subject to mortal defense, not because of the nature of the parking ticket, but because of the nature of the government's response: kidnapping for a victimless crime.

Several years ago there was a man who was pulled over for not wearing his seat belt. He shot and killed the officer who pulled him over. I considered that, at the time, to be a justified killing, and I think I still do. After all, the officer was threatening this man with all the wrath the state has available (death) if he didn't comply with the flashing lights and pull over. How is that any different than a man forcing a woman to comply with his wishes sexually, for instance? A threat of death is a threat of death, pure and simple.

And now we have a president who ordered the killing of a "citizen" with no charges, no trial, no nuthing. The mask has come completely off this charade. This killer-in-chief is at least guilty as an accessory if not directly for first degree murder. The train has obviously run clean off the rails.

- NonE

Comments for this entry have been closed
Return to top