Skip to comments.Natural Law Vs. Positive Law: It's relevance to the Eric Garner case
Posted on 12/20/2014 5:08:06 PM PST by SeekAndFind
In the fallout following a grand jurys decision to not indict police for the death of Eric Garner, there is no shortage of libertarians who claim that Garner was innocent as far as the natural law is concerned.
Natural law is an ethical tradition with an illustrious pedigree stretching back millennia. From this perspective, natural law is a transcendent moral order that provides the standard of justice for positive law, i.e. human legislation.
The law forbidding the sale of loose cigarettes that Garner violated (repeatedly) is unjust. Garner aggressed against no one. He merely exercised his natural right to dispose of his own property (loosies) at will. Natural law forbids only those actions that violate the axiom of non-aggression, actions that directly contravene the natural rights of others. Since Garner, allegedly, aggressed against no one, morally speaking, he was innocent. Moreover, the positive law that Garner violated was unjust because it violated Garners natural right to dispose of his own property (loosies) at will.
Speaking as one who believes in natural law, Ill be the first to say it: The road from natural law to positive law is paved with immense difficulties. The concept of natural law must be handled with great care.
Lets assume for the moment that the above argument is correct and that the law forbidding the sale of untaxed cigarettes violates the natural law. So what? As far as I see it, one of two—and only two—implications follows from this assumption: (1) Garner acted rightly, for there is no moral duty to comply with an unjust law; or (2) Garner acted wrongly in breaking the law, even though it was unjust, because there is a moral duty to comply with, or at least not resist, laws enacted by recognized authorities (like legislators).
Neither line of reasoning bodes well for Garners natural law supporters.
The problem with (1) is that even from the perspective of many of historys great natural lawyers, it doesnt work.
There may very well be a moral (natural) duty to comply with an unjust positive law. Believers in natural law from at least the time of Socrates certainly thought that the immorality per se of a given law was far from a sufficient ground on which to disobey it. Of course, they recognized that immorality admitted of many degrees. For instance, a positive law demanding murder is far more egregious than one, say, forbidding the sale of untaxed cigarettes. Certainly, the only fitting response to the former is non-compliance. Regarding the latter, though, matters are far messier.
Socrates was unjustly convicted on trumped up charges and sentenced to death. Yet even under these circumstances, he refused to escape from prison when a friend made the arrangements for him to do so. Socrates justified his decision on the grounds that in spending his whole life under Athenian law, he implicitly contracted to abide by it. And from this system of law he derived enormous benefits. In disobeying this law now just because it (or its application) harms him, Socrates believed, would be to undermine the laws that made his good life possible.
As he explained to Crito, his friend who came to bust him out of jail, a citizen must do what is his city and country order him to do or else strive to change their view of what is just [.]
The great English natural law jurist, William Blackstone, is also worth consulting on this issue.
In his magisterial, Commentaries on the Laws of England, Blackstone writes that in relation to those laws which…forbid only such things as are not mala in se (wrong in themselves), but mala prohibita (crimes, because forbidden)—like peddling untaxed loosies—our moral obligation is to either comply with the law or, in case of our breach of those laws, submit to the penalty. Whichever course of action a person chooses, his conscience will be clear [.]
Blackstone further notes that if everyone went about breaking those laws that they disliked—if every such law were [viewed as] a snare for the conscience of the subject—then the multitude of penal laws in a state would not only be looked upon as impolitic, but would also be a very wicked thing [.]
Countless laws could be deemed immoral and disobeyed. This, though, would result in the overthrow of law itself.
He further adds that disobedience to the law is an offence against conscience if it involves…anydegree of public mischief or private injury [.]
Let’s say that I agree fully with this analysis, and I pretty much do, what is there in a violation of the loosie law that would justify a forceful takedown of a violator in lieu of say, issuing him with a ticket?
There is something to be said for proportion and common sense. None of which I saw in the videos posted on line.
LOL, what utter rot.
Natural law IS common law IS "human legislation."
Positive law IS corporate law and therefore is specifically NOT "human" legislation.
This article is a bald-faced lie.
Blackstone had quite a bit to say about positive law, and the basis for its validity. When positive law deviates from the principles that give it force, then positive law loses its claim to "moral high ground."
And it only has its practitioners (the judges, mostly) to blame.
He ignored jungle law: right or wrong, when you violate the same law and are arrested for it 8 times, don’t be surprised if the enforcers beat the crap out of you hard enough that death is a risk.
Another poster above posted this question, which I think is relevant.... what is there in a violation of the loosie law that would justify a forceful takedown of a violator in lieu of say, issuing him with a ticket?
Indeed. There’s a pithy treatise on this subject titled “Law. Liberty and Morality” by H.L.A. Hart based on a series of lectures he gave at Stanford some decades ago. If you can find a copy, it’s worth a read.
I’m having some major plumbing work done, the plumber and I have arrived at our own “natural law”. I pay him in cash, several hundred dollars and he has discounted his fee. I win, plumber wins. The only entity that doesn’t win is I.R.S. Screw them and the horse they rode in on. That’s my “natural law”.
I assume Seek and Valentine have never had to deal with someone who doesn’t want to comply with the cops. Garner was what is sometimes called a frequent law enforcement consumer.
The cops and the perps all know how things really happen on the streets, and it’s nothing like the old show Dragnet.
Maybe he should have watched this video for helpful tips.
How Not to Get Your Ass Kicked by the Police
It wasn’t the violation of the loosie law.
It was the violation of refusing to submit to arrest, regardless of reason for arrest.
ALL law is predicated on the government being willing & able to go so far as to kill you if you don’t submit to so little as jaywalking. You refuse to consent under whatever escalation of enforcement they apply, they will escalate further; they may choose to let it go, or re-engage under other conditions, but if you push it far enough they’ll push it further.
In this case, a very large man said & did things indicating his intent of non-compliance. So, they compelled compliance.
Pro tip: if you’ve got a serious health problem, don’t do things that can (directly or indirectly) cause that problem to turn fatal. I don’t ride roller coasters because there’s a good chance I’ll black out, and suffer a fatal consequence. I also don’t do things (like resist arrest) that might lead a cop to taze me, which could fry my internal wiring. If you’re morbidly obese, antagonizing police is probably a bad idea as whatever they do may overwhelm your already strained metabolic capabilities.
He’d been arrested for violation of the loosie law some 8 times. Obviously, he (A) knew it was illegal, (B) standard enforcement wasn’t persuading him to stop, and (C) to the contrary he was becoming belligerent about the confrontations. He escalated it, they escalated it further, he suffered the natural consequence of badgering them into escalation.
Whether the loosie law should exist is a different discussion. Insofar as a law, however bad, exists the government shall operate on the premise that those subject thereto shall comply therewith. If the law in question is immoral, unconstitutional, etc then while resisting it may be right, do not be under any delusion that the government will instantly cease aggressive enforcement thereof.
In the fallout following a grand juryâs decision to not indict police for the death of Eric Garner, there is no shortage of libertarians who claim that Garner was innocent as far as the natural law is concerned.Thanks SeekAndFind.
In a republican form of government such as ours, We the People, via our representatives, most certainly have the legitimate power to regulate or even outlaw vice. And to do so is in no way a violation of the natural law.
I am NOT sure if a Republican form of government such as ours will always outlaw vice or even pass laws that encourage virtue.
John Adams once said: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
So, If by natural law, we mean the laws given to us by nature’s God, and if we believe this God gives us morality, then in a Republican form of government, it behooves the citizens to pass laws IN HARMONY with natural law.
Now, consider a state like NY or Colorado that passes a law FORCING business people to service gay weddings under penalty of stiff fines or perhaps even closure of businesses...
That is an example of a positive law that is a violation of natural law ( that is, if we agree that homosexuality is against natural law ).
You are missing my point: the cops should not have had the job of messing with Garner in the first place. This isn’t their fault, for sure, but it comes of legislatures forcing law enforcement to deal with matters too trivial and benign for police to be either effective or relevant. Laws should be written to prevent harm not to regulate harmless behavior.
Certainly, but doing so in the absence of a common consensus on just what constitutes vice will be ineffective and even counterproductive as it will breed contempt for the law, viz, laws against alcohol or marijuana consumption.
It’s not a disingenuous question. Sure, you are correct insofar as you identify refusal to submit to arrest as the immediate cause of the confrontation and all subsequent events flowing from that.
But, it doesn’t begin and end there, does it?
Surely you can’t be suggesting that a society where police can arrest and detain anyone with force on almost a whim is one we ought to celebrate and encourage.
Physical arrest ought to be used only when necessary - and not for crimes such as over-flushing a toilet or selling an odd cigarette or two on the street. Cops have better things to do, and we as taxpayers have better things to do with our money than to fund this sort of waste.
Then who is to enforce the law if not law enforcement agents?
Most here agree that the loosies law is subject to debate, but insofar as it exists were not surprised it’s enforced, and scofflaws are dealt with harshly.
You persist in understating the crime. This wasn’t selling an odd cig or two, this was persistent business for which he had been apprehended some 8 times.
And this wasn’t merely being arrested for a debatable crime, this was active statement and act of refusal to comply.
It’s actually rather difficult to understate the natural evil and malfeasance involved in selling loose cigarettes to willing buyers on the street, I don’t care how many times he did so, or how many times he was caught.
A four liter flush is made no more evil by multiple flushes. One cigarette or 20, big deal. And again, I don’t really know how it would be possible to understate the evil in this activity as there is none.
So he’s a violator of a malum prohibitum regulation; ticket him and move on.
It would be difficult to postulate a more pernicious waste of police powers than trying to effectuate a physical takedown of someone whose underlying “crime” is this trivial.
Yes, cops don’t make the laws, but they are charged with enforcing them. This was not Mr. Garner’s first rodeo with the justice system. He was what is called a frequent law enforcement consumer. He should have been quite familiar with the process.
People being restrained by cops frequently yell and holler than they can’t breather, are being hurt, having a heart attack, etc. in an attempt to get the cops to let go. The cops had no idea Garner was asthmatic, and he didn’t die there. He died at the hospital. Might as well blame the doctors.