Which is the greater threat to freedom, too little respect for the law — or too much?
With ever more laws on the books serving to curtail individual rights, suppress human flourishing, and cripple the process of wealth creation, it would seem that the healthy attitude for advocates of liberty would be one of unequivocal disrespect.
That’s precisely what Reason.com's managing editor, J.D. Tuccille, advocates in a recent Hit & Run post:
The key to rendering stupid laws irrelevant … [is] an overall attitude of defiance.… And the enemy of that defiance isn't tough cops or clever politicians; it's respect for the law.
Tuccille is responding to Charles Murray's new By the People: Rebuilding Liberty Without Permission and to what Tuccille describes as Salon.com's "incoherently rabid" reaction to Murray's book.
By the People, Tuccille tells us, "describes how civil disobedience backstopped by legal defense funds can make large portions of the 180,000-page Federal Code of Regulations unenforceable."
But Tuccille claims that Murray's strategy skips a step. In fact, he claims, any strategy by itself will fall short of the mark if our goal is to roll back intrusive government. Because civil disobedience, strategically speaking, depends on a cultural prerequisite: "widespread skepticism toward intrusive laws, the political system that creates those laws, and the people who enforce them."
In other words, the real enemy of freedom is respect for the law — and the first item on any libertarian agenda must therefore be to promote instead a "healthy contempt."
Here we run into a semantic issue that has bedeviled classical liberals throughout our history: What does the word law mean?
If we're talking about legislation, then Tuccille is certainly right. It's hard to ask if a particular law is justified when you conflate what's illegal with what's immoral. A knee-jerk respect for whatever law happens to be on the books at the moment is an abdication of moral responsibility.
But if the idea of society-wide disrespect for the law leaves you feeling uneasy — if you picture rampant crime, and not just the victimless variety — that's because the word law doesn't always refer to the latest ink in the legislators' library of rules and regulations. It also connotes order, balance, the recognition of rights and reciprocity. At its best, the term law simply means justice.
When Frédéric Bastiat opened his manifesto with the line "The law perverted!" he acknowledges both that the purpose of on-the-books law is to promote justice and that the actual legislation has been "made to follow an entirely contrary purpose."
Bastiat was, in essence, using his readers' respect for justice to promote a healthy contempt, not for the law, but for its perversion by the state.
Tuccille may simply be taking it for granted that Reason's readers support individual rights and a societal pursuit of justice, but a newcomer could be forgiven for thinking that, like Murray, Tuccille himself has skipped a step. Respect for justice is what makes contempt for the "law" into a tool for liberty instead of chaos.
So should we drop the word law and talk instead of legislation versus justice?
It is true that the heroes of liberty have chosen justice over legislation for centuries, from America's smuggling and tax-dodging Founders, to conductors and station owners on the Underground Railroad, to the digital innovators who help ever more of us to bypass the cartelized economy and avoid the prying eyes of the security state.
Tuccille, too, offers the example of the heroic lawbreakers of America's slavery era: "the underground railroad that helped slaves escape the antebellum South for new lives in Canada and the North."
"The network of safe houses and volunteers," he points out, "was fueled by an overriding disdain for laws that treated human beings as property and required the public to cooperate in their enforcement."
But significantly, many of the 19th-century abolitionists were pietist Christians, who believed in a natural law above and often in conflict with the man-made sort.
Libertarian legal theorist Lysander Spooner was a nonbeliever: he rejected the theology behind the natural-law theory of many of his fellow abolitionists. But Spooner argued nevertheless that a "science of justice" was possible. And like his Christian comrades, he referred to the subject of that science as "natural law."
Even if you can't buy into the idea of "natural" rights and natural laws to protect those rights, it remains straightforward to distinguish between those laws that protect peaceful, voluntary actions and those that punish them. What we want is a healthy respect for the former and a widespread disdain for anything else that calls itself law.
But defiance is not enough. It has existed in illiberal societies more often than in liberal ones. The culture that promotes freedom and well-being must have as its starting point an understanding of law independent of the state.