print“Eric Garner 100% Innocent Under Libertarian Law” does not meet with the approval of Jack Kerwick. He writes:
Coming soon: My article on NATURAL LAW and POSITIVE LAW and the relationship between the two. This article was inspired by Ilana Mercer’s contention that since Eric Garner was “innocent” as far as the natural law is concerned, he had no obligation whatsoever to “obey” the unjust positive law under which he was arrested. I will show that even accepting Ilana’s premise, the conclusion does NOT follow. From Cicero and Socrates to Augustine and Aquinas to William Blackstone, Thomas Hobbes, and John Locke, no natural lawyer, as far as I have been able to determine, has ever contended that the injustice of a SINGLE law is sufficient grounds for disobeying it. And when disobedience is called for, respect for the larger system of law of which the unjust law in question is a part demands a WILLINGNESS to be arrested. Breaking the law openly, in public, and then submitting to arrest affirms the law while drawing attention to the injustice in question. Such an act distinguishes the civil disobedient from criminals (think MLK and the “civil rights” protests of the 50’s and 60’s). Garner was a criminal.
Ilana Mercer replies:
Before publishing said article, Jack, you want to correct what appears to be a misrepresentation of my words. Where in the article do I venture that “Garner had no obligation whatsoever to ‘obey’ the unjust positive law under which he was arrested.” Nowhere! This is not the purview of libertarian law (which deals only in the axiom of non-aggression), thus I would not have dignified it. Before publishing a column, make sure it is based on my exact words, and not an inference therefrom. I do not have to reread what I wrote to know I would not have addressed compliance at all, for it is not within the ambit of libertarian law.
Ilana Mercer: I’m not sure, then, what the point was in claiming that Garner was “100% innocent under libertarian [natural] law.” Maybe he was and maybe he wasn’t. But even if he was, so what? I presumed (how could I not?) that your point was that Garner was not acting immorally–i.e. unlawfully–in illegally selling cigarettes. Thus, he never should have been stopped, much less arrested, for doing so. Now, if you think that he DID have an obligation to obey the law, even if it was unjust, then you think that HE DID ACT IMMORALLY (UNLAWFULLY) in not obeying it. I drew a legitimate inference from your claims: if he was acting both illegally and unlawfully (immorally) in selling “loosies,” then the police acted morally and justly in stopping him. I don’t mean to misrepresent anyone: I just don’t know what other conclusions can be drawn from your argument.
Ilana Mercer:
Jack Kerwick, you wrote: “Now, if you think that he DID have an obligation to obey the law, even if it was unjust, then you think that HE DID ACT IMMORALLY (UNLAWFULLY) in not obeying it. I drew a legitimate inference from your claims.”
I did not anywhere assert that Garner had an obligation to obey (or disobey) the law, and that by not so doing he had acted immorally (or morally). Thus, there is no reason whatsoever for you to impute to me, 1. a thing I had not said. 2. to draw an inference from something I had not said. Any line of reasoning built on this edifice is simply wrong and should not be pursued as a line of reasoning. I can understand that you are unclear as to what I meant by “100% innocent in libertarian law.” That sentence could be seen to constitute a bit of insider talk. That I can certainly address, my friend.
Twice does Jack pair “immoral,” in the above paragraph, with “unlawful.” But that’s the entire point of “Eric Garner 100% Innocent Under Libertarian Law.” First, what is immoral is not necessary illegal and vice versa. It is, arguably, immoral to legislate preferences in employment for certain workers because of the concentration of melanin in their skin. Yet it is perfectly legal in some precincts around the country. Conversely, it is utterly moral to sell an item that belongs to you, as Garner did. However, it was illegal for Garner to sell said items, despite the fact that he was in his moral right to trade.
We all have ideas about what is moral and immoral. Oddly enough to some, libertarianism has nothing whatsoever to say about morality per se. When we say this or the other thing is wrong in libertarian law, we mean the following and the following only:
Unprovoked, A initiated aggression against B or his “legitimately owned” property.
That’s it! Libertarianism is, then, concerned with the ethics of the use of force.
The foundation of libertarianism is the non-aggression axiom. Walter Block explains:
The non-aggression axiom is the lynchpin of the philosophy of libertarianism. It states, simply, that it shall be legal for anyone to do anything he wants, provided only that he not initiate (or threaten) violence against the person or legitimately owned property of another. That is, in the free society, one has the right to manufacture, buy or sell any good or service at any mutually agreeable terms. Thus, there would be no victimless crime prohibitions, price controls, government regulation of the economy, etc.
… the non-aggression axiom is a very powerful tool in the war of ideas. For most individuals believe, and fervently so, that it is wrong to invade other people or their property. Who, after all, favors theft, murder or rape? With this as an entering wedge, libertarians are free to apply this axiom to all of human action, including, radically, to unions, taxes, and even government itself.
Which is exactly the analysis applied in “Eric Garner 100% Innocent Under Libertarian Law.”
Of course, there are many very difficult issues over which natural-rights libertarians—as opposed to Benthamite, utilitarian libertarians—will argue. Abortion, for example.
Based on the non-aggression law, some libertarians hold that abortion at whatever stage is OK, because a woman owns herself and may evict anything from her body. To punish her because of what she does to her own body, they claim, would be wrong—even if we think abortion immoral. Other natural-rights libertarians disagree with this position. They say that abortion is aggression against a living, non-aggressive being. The debate, however, while wading heavily into issues of morality, always comes back to what should be legal or illegal in libertarian law. In other words, based on the non-aggression law, should we or should we not proceed with force—for that is what the law is—against a woman for what she does to her body.
This and this alone is the ambit of libertarian law.
The same dynamic debates are conducted by libertarians with respect to immigration law.
Law is force. Like most 19th Century classical liberals, libertarians believe that force is justified under very few circumstances. Each time our overlords in DC legislate (unconstitutionally, by the way), they give their foot-soldiers permission to initiate force against a sovereign, innocent citizen. Every new law and regulation grants permission to law enforcement to proceed with unjust, unprovoked force against an innocent, sovereign individual and/or his lawful property—a citizen whose actions did not harm anyone. (And competition is not aggression. “Eric Garner was not violating anyone’s rights or harming anyone by standing on a street corner and peddling his wares – that is unless the malevolent competition that sicced the cops on him has a property right in their prior profits. They don’t.” A shopkeeper has the right to pursue profits. He has no right to the profits he had before the competition arrived on the scene. Not in a free-market.)
This is what was addressed in “Eric Garner 100% Innocent Under Libertarian Law.”
Now, the fact that libertarian law is so minimalist—skeletal, if you will—does not obviate against its complexity and subtlety. The debates we have—and are having now—are complex and hence often hard to grasp. In essence, libertarians debate the laws about the the law; the legality of law. That’s a meta-debate.
Ultimately, libertarianism’s elegant minimalism about what is legal and what’s illegal is perfectly compatible with the idea of individual sovereignty and limited, legitimate authority.
UPDATE I (12/15): Everybody is “torn” on Facebook thread. Some are starting to sound like Gloria Swanson mid-swoon (or was it Marlene Dietrich?). “I am torn, my dear, so torn. Fetch my smelling salts.” WTF is there to be “torn” about? The right of a person to stand on a street corner with a few loosies in-hand and not be killed??????????? There was no “civil disobedience.” WTF is wrong with y’all?
UPDATE II (12/17):
Hastings Ragnarsson deserves credit for his clarity, having admonished against the penchant for “dragging morality into a discussion of legality.”