Maverick Philosopher

The Destruction of Jurisprudence

Victor Davis Hanson:

Now we are left with a final toxic gift from this [Boomer] generation: the destruction of jurisprudence, a system designed not to easily protect the popular and admired but those often pilloried in the public square, the unorthodox, eccentric, and unliked.

Even Trump’s antagonists know that had Donald Trump been a man of the left, or had he not run again for president, he would never have been charged, much less convicted, of felonies or been punished with nearly a half-billion dollars in legal fees and fines.

We all accept that the charges brought against him by a vindictive and left-wing Letitia James, Alvin Bragg, Fani Willis and Jack Smith—all compromised by either past politicized prosecutorial failures or boasts of getting Trump—have never before been brought against any prior political figure or indeed any average citizen. They were instead invented to target a single political enemy. So what hallowed law, what constitutional norm, what ancient custom, or what Bill or Rights has the fading left not destroyed in order to erase Donald Trump from the political scene?

There is now no distinction between state and federal law. Once a prosecutor targets an enemy, he can flip back and forth between such statutes to find the necessary legal gimmick to destroy his target.

Statutes of limitations are no more as errant prosecutors and political operatives in the legislature can change laws to dredge up supposed crimes of years past, to destroy their political enemies, by employing veritable bills of attainder.

The very notion of an exculpatory hung jury depends on who is to be hung.

Judges can overtly contribute to the political opponents of the accused before them. Their children can profit in the tens of millions by selling to politicos their relationship to the very judge who holds the fate of their political opponents in his hands.

In sum, the First Amendment guaranteeing the right of the defendant to free speech is now not applicable. Asymmetrical gag orders are.

The Fourth Amendment is now torn to shreds by those who boast of “saving democracy.” When the FBI, on orders from a hostile administration, storms into the home of the leading presidential candidate and ex-president’s home, armed to the teeth, treats a civil dispute as a violent felony, and then doctors the evidence it finds, then constitutional insurance against “unreasonable searches and seizures” becomes a bitter joke for generations.

The Fifth Amendment’s protection that no person “shall be deprived of life, liberty, or property, without due process of law” has been destroyed when an ex-president cannot summon expert legal witnesses to testify on his behalf and when he cannot bring in evidence that contradicts his accusers. There is no due process when one ex-president is indicted for the very crimes his exempted successor has committed.

The Sixth Amendment’s various assurances are now kaput. No one believes that Trump was tried “by an impartial jury of the State”—not when prosecutors deliberately indicted him in a city where 85 percent of the population voted against him and are by design of a different political party.

No longer will an American have the innate right “to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor” when Donald Trump was never informed by prosecutor Alvin Bragg of the felony for which he was charged, with little advance idea of all the hostile prosecutorial witnesses to be called, and with no right to call in experts to refute the prosecution’s bizarre notion of campaign finance violations.

The Seventh Amendment is likewise now on the ash heap of history. The publicity-seeking judge Arthur Engoron, a political antagonist of Trump, warped the law in order to serve as judge, jury, and executioner of Trump’s fate, without recourse to a jury of even his biased New York peers.

The Eighth Amendment will offer assurance no longer to the American people that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Donald Trump was fined $83.3 million in the E. Jean Carroll case for an alleged assault of three decades past, brought by partisan manipulative waving of the statute of limitations, with the politicized accuser having no idea of the year the assault took place, with her accusations arising only decades later when Trump became a political candidate, with her own employers insisting she was fired for reasons having nothing to do with Donald Trump, and with her narrative eerily matching a TV show plot rather than any provable facts of the case.

By what logic was Trump fined $175 million for supposedly inflated asset valuation to obtain a loan that was repaid with interest to banks that had no complaint? Since when does the state seek to inflict such “unusual” punishments for a crime that never before had existed and never will again henceforth?

In sum, our departing weak-link generation leaves us this final Parthian shot— that when a toxic ideology so alienates the people who are rising up to prevent its continuance, then the desperate architects of such disasters can dismantle the rule of law to destroy its critics.

And so, a single generation has broken apart the great chain of American civilizational continuance. But if this weak-leak generation thinks the evil that they wrought is their last word, they should remember the warning of a great historian:

“Indeed men too often take upon themselves in the prosecution of their revenge to set the example of doing away with those general laws to which all alike can look for salvation in adversity, instead of allowing them to subsist against the day of danger when their aid may be required.” – Thucydides 3.84.3

The above unexceptionable points adduced by Hanson will,  however, have no effect on our political enemies who -- I hate to have to say it -- include not only leftists but also those we used to consider friends: never-trumping so-called 'conservatives'  such as the sorry bunch over at the Bulwark. (See, for example, this piece by A. B. Stoddard.) A house divided cannot stand against external threats, and we have never been more divided.  There are dark days ahead. Time to (wo)man up, gear up, speak out, and put your money where your mouth is, but with detachment from the outcome, and steady awareness that it is all a passing scene and nothing to get too excited about. 

Is Illegal Immigration a Crime?

It is. Nancy Pelosi and other prominent Democrats have been lying to us. Illegal immigrants are subject to criminal penalties. While improper entry is a crime, unlawful presence is not a crime. One can be unlawfully present in the U. S. without having entered improperly, and thus without having committed a crime. 

If a foreign national enters the country on a valid travel or work visa, but overstays his visa, failing to exit before the expiration date, then he is in violation of federal immigration law. But this comes under the civil code, not the criminal code. Such a person is subject to civil penalties such as deportation.

So there are two main ways for an alien to be illegal. He can be illegal in virtue of violating the criminal code or illegal in virtue of violating the civil code. 

Those who oppose strict enforcement of national borders show their contempt for the rule of law and their willingness to tolerate criminal behavior, not just illegal behavior.

Frédéric Bastiat on the Law

To gain historical perspective and philosophical insight as we slide into the abyss, you must read Bastiat among others. Our current situation is nothing new and what the Frenchman writes is directly relevant to our decline. The owl of Minerva spreads its wings at dusk. It's twilight time. Can we turn things around? I don't know. It may be too late. As a citizen I lament, as a philosopher I rejoice in the opportunity to learn something. Everything below is reproduced from this source.

Frederic Bastiat (1801-1850) was a French economist, statesman, and author.

The Law

The law perverted! And the police powers of the state perverted along with it! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose! The law become the weapon of every kind of greed! Instead of checking crime, the law itself guilty of the evils it is supposed to punish!

If this is true, it is a serious fact, and moral duty requires me to call the attention of my fellow-citizens to it.

What Is Law?

What, then, is law? It is the collective organization of the individual right to lawful defense.

Each of us has a natural right — from God — to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties? If every person has the right to defend even by force — his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right — its reason for existing, its lawfulness — is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.

Such a perversion of force would be, in both cases, contrary to our premise. Force has been given to us to defend our own individual rights. Who will dare to say that force has been given to us to destroy the equal rights of our brothers? Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces?

If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.

You may look away . . .

. . . but it won't make the madness go away. Still, "Out of sight, out of mind" is a way to peace of mind. But is such peace worth wanting if its price is ignorance of imminent threats to your life, liberty, and well-being? Can you afford to ignore the sheer suicidal insanity of the Left? Examples are legion.

Here is a recent one: Illinois law requires landlords to sell or rent to illegal aliens.

The Republic is on its last legs when law is used both to undermine the rule of law, and to punish productive citizens who accept the risk of buying properties, refurbishing them, and then putting them up for rent or sale. 

The Manipulative Rhetoric of Garrett Epps

Keith Burgess-Jackson on a law professor gone amok:

Two years ago this past month, law professor Garrett Epps published a short essay entitled “Common-Good Constitutionalism Is an Idea as Dangerous as They Come” in a high-brow literary magazine, The Atlantic. That he published his essay in this organ rather than, say, a law review suggests that he was trying to reach non-specialists. The result, I am afraid to say, is a disaster. The essay is too simplistic to be of any use to his fellow law professors, but too arcane and abstract for many or most of the magazine’s readers.

Was Kyle Rittenhouse a Vigilante?

I have been known to refer to David French as a useful idiot in the sense usually attributed to V. I. Lenin, but I won't repeat that legitimate charge here. I'll just say that French is exasperating in the Trump-hating pseudo-conservative style of David Brooks, George F. Will, Bill Kristol, Mona Charen and the rest of the all-talk-and-no-action bow tie brigade.   Here is French in The Atlantic,  publication in which is a good tip-off as to one's political stance:

When Kyle Rittenhouse walked the streets of Kenosha in the midst of urban unrest following the police shooting of Jacob Blake holding a rifle in the “patrol carry” or “low ready” position, similar to the positions used by soldiers walking in towns and villages in war zones, without any meaningful training, he was engaged in remarkably dangerous and provocative conduct. But that dangerous and provocative conduct did not eliminate his right of self-defense, and that self-defense claim is the key issue of his trial, not the wisdom of his vigilante presence.

French fails to note that the police shooting of Blake was justified inasmuch as the black criminal with an impressive rap sheet refused to obey police commands and pulled a knife on the officer. French is undoubtedly aware of the lethality of knives and indeed that their lethality is in some circumstances in excess  of that of a 9mm semi-automatic pistol. But let that pass.

Note the phrase "vigilante presence." A vigilante is someone who takes the law into his own hands. But the authorities had abdicated and  Kenosha was at the time lawless. Someone who defends life, liberty, and property in a Hobbesian state of nature against armed barbarian arsonists, looters, and potential murderers is arguably not a vigilante. But of course it depends on how one defines 'vigilante.' 

If a citizen shoots a home invader who threatens death or grave bodily harm to the home's occupants, no one calls that a vigilante action even though the citizen has taken crime prevention and law enforcement into his own hands.   The law makes an entirely reasonable exception in a case like this thereby suspending in such circumstances its monopoly on the use of force in law enforcement and crime prevention. This exception allows for others. When the authorities abdicate, they no longer can claim to have a monopoly on the use of force since they have refused to employ force in the upholding of the law. So it falls to the citizen.  When the authorities are in dereliction of duty, their authority evaporates.

It is thus a cheap slander on the part of French to tar Rittenhouse with the pejorative 'vigilante.'   Later in the article,

But there is also an immense difference between quiet concealed carry and vigilante open carry . . . .

Two points. French is suggesting that open carry, as such, is a vigilante action. It is not, although it is inadvisable in most circumstances. If that is not what French wanted to imply, then he is a sloppy writer. Second, Rittenhouse was out to deter the thugs and concealing his weapon would not have had that effect! 

Can you appreciate why someone would consider French to be a useful idiot? Instead of standing up for the rule of law and condemning both the politicians who want to defund the police, and the leftist prosecutors who refuse to prosecute criminals, he wastes his energy attacking an idealistic. good-hearted  17- year-old  boy who bravely if unwisely stood up against the barbarians. The net effect is to give aid and comfort to those French ought to be opposing. Like Rod Dreher and others, he doesn't understand that he has to take a side here and that it is impossible to float above the fray as if he were a transcendental spectator with no stake in the outcome.

The question to put to French is: Which side are you on?

Related: David French, Christianity, and Politics

Civil Liability for Gun Manufacturers?

Of course not! Substack latest.

"Ignorance of the Law is No Excuse"

AN EMINENTLY REASONABLE PRINCIPLE, but only if the law can be known by the average citizen who exercises appropriate diligence.  For that exercise of due diligence to be possible, however, laws must be relatively few in number, rational in content, and plainly stated.  If that were the case, then ignorance of the law would be vincible ignorance and thus no excuse or defense.  But it is not now the case.  

The Trial of Kyle

The Rittenhouse trial was not about the 17-year-old primarily, but about one's right to defend oneself with lethal force against a lethal threat. Hence the great significance of this case. An absolutely crucial moral and legal principle is at stake. The righteous Right won this time, but the fact that the pernicious Left tried to railroad and destroy the intelligent, decent, and well-meaning kid shows that they will stop at nothing to destroy our Anglo-American system of justice, the best the world has yet to see.  Leftists smeared him as a 'white supremacist' against all evidence, and against all sense: Kyle and his assailants are all white. The Democrat 'president' of the United States, Joseph Biden, joined in the smear.  Rittenhouse's defensive actions, and the ensuing show trial, had nothing directly to do with race. And given all the clear video evidence, Rittenhouse should not have been criminally charged in the first place. 

But again, it is not primarily about Rittenhouse.  As bad as the Left's policy of personal destruction is, far worse is their policy of political destruction: the hard Left, which now controls the Democrat Party, aims to "fundamentally transform" (Obama), i.e., destroy, the American polity and system of government by, among many other things, opening the borders to any and all, eliding the distinction between citizen and non-citizen, giving the franchise to non-citizens, conspiring to give the vote to felons while still in prison, defunding the police, emptying the prisons, eliminating cash bail, transforming the public schools and the universities into  culturally Marxist seminaries, erasing the historical record, putting up statues to criminals  . . . .

The battle lines have never been clearer. Get ready. 

The line, it is drawn, the curse, it is cast

The slow one now will later be fast

As the present now will later be past

The order is rapidly fading

And the first one now will later be last

For the times, they are a-changin'.

The Biblical Dylan in prophetic mode. The civil rights battles of the '60s were fought and won. Now a different civil rights struggle is upon us, and Dylan's words again resonate and apply.

 

Related: Victor Davis Hanson, Can the FBI be Salvaged?

It Can't be Legislated

A law can be legislated, but respect for the rule of law cannot be legislated. In the absence of the latter, positive laws are but tools of the powerful.

Dura lex, sed lex

"The law is hard, but the law is the law." Not to a leftist, however, for whom the law is but an expression of power. Power knows no moral constraint.

An Important Issue in Political Philosophy: Robert Barron versus George Will

For many of us who reject leftism, and embrace a version of conservatism, there remains a choice between what I call American conservatism, which accepts key tenets of classical liberalism, and a more robust conservatism.  This more robust conservatism inclines toward the reactionary and anti-liberal. The difference emerges in an essay by Bishop Robert Barron entitled One Cheer for George Will's The Conservative Sensibility. The bolded passages below throw the difference into relief.

And so it was with great interest that I turned to Will’s latest offering, a massive volume called The Conservative Sensibility, a book that both in size and scope certainly qualifies as the author’s opus magnum. Will’s central argument is crucially important. The American experiment in democracy rests, he says, upon the epistemological [sic] conviction that there are political rights, grounded in a relatively stable human nature, that precede the actions and decisions of government. These rights to life, liberty, and the pursuit of happiness are not the gifts of the state; rather, the state exists to guarantee them, or to use the word that Will considers the most important in the entire prologue to the Declaration of Independence, to “secure” them. Thus is government properly and severely limited and tyranny kept, at least in principle, at bay. In accord with both Hobbes and Locke, Will holds that the purpose of the government finally is to provide an arena for the fullest possible expression of individual freedom. [. . .]

With much of this I found myself in profound agreement. It is indeed a pivotal feature of Catholic social teaching that an objective human nature exists and that the rights associated with it are inherent and not artificial constructs of the culture or the state. Accordingly, it is certainly good that government’s tendency toward imperial expansion be constrained. But as George Will’s presentation unfolded, I found myself far less sympathetic with his vision. What becomes clear is that Will shares, with Hobbes and Locke and their disciple Thomas Jefferson, a morally minimalistic understanding of the arena of freedom that government exists to protect. All three of those modern political theorists denied that we can know with certitude the true nature of human happiness or the proper goal of the moral life—and hence they left the determination of those matters up to the individual. Jefferson expressed this famously as the right to pursue happiness as one sees fit. The government’s role, on this interpretation, is to assure the least conflict among the myriad individuals seeking their particular version of fulfillment. The only moral bedrock in this scenario is the life and freedom of each actor.

Catholic social teaching has long been suspicious of just this sort of morally minimalist individualism. Central to the Church’s thinking on politics is the conviction that ethical principles, available to the searching intellect of any person of good will, ought to govern the moves [sic] of individuals within the society, and moreover, that the nation as a whole ought to be informed by a clear sense of the common good—that is to say, some shared social value that goes beyond simply what individuals might seek for themselves. Pace Will, the government itself plays a role in the application of this moral framework precisely in the measure that law has both a protective and directive function. It both holds off threats to human flourishing and, since it is, to a degree, a teacher of what the society morally approves and disapproves, also actively guides the desires of citizens.

I applaud the idea that the law have both a protective and a directive function.  But to what should the law direct us? 

On a purely procedural liberalism, "the purpose of the government finally is to provide an arena for the fullest possible expression of individual freedom. " This won't do, obviously. If people are allowed the fullest possible expression of individual freedom, then anything goes: looting, arson, bestiality, paedophilia, voter fraud, lying under oath, destruction of public and private property, etc.  Liberty is a high value but not when it becomes license. Indisputably, ethical principles ought to govern the behavior of individuals. But which principles exactly? Therein lies the rub. We will presumably agree that there must be some, but this agreement gets us nowhere unless we can specify the principles.

If we knew "with certitude the true nature of human happiness or the proper goal of the moral life" then we could derive the principles. Now there are those who are subjectively certain about the nature of happiness and the goal of life.   But this merely subjective certainty is worth little or nothing given that different people and groups are 'certain' about different things.  Subjective certainty is no guarantee of objective certainty, which is what knowledge requires.  This is especially so if the putative knowledge will be used to justify ethical prescriptions and proscriptions that will be imposed upon people by law.

For example, there are atheists and there are theists in almost every society. No atheist could possibly believe that the purpose of human life is to know, love, and serve God in this world and be happy with him in the next.  From this Catechism answer one can derive very specific ethical prescriptions and proscriptions, some of which will be rejected by atheists as a violation of their liberty. Now if one could KNOW that the Catechism answer is true, then those specific ethical principles would be objectively grounded in a manner that would justify imposing them on all members of a society for their own good whether they like it or not.

But is it known, as opposed to reasonably believed, that there is a God, etc.?  Most atheists would deny that the proposition in question is even reasonably believed.  Bishop Barron's Catholicism is to their minds just so much medieval superstition. Suppose, however, that the good bishop's worldview is simply true.  That does us no good unless we can know that it is true. Suppose some know (with objective certainty) that it is true. That also does us no good, politically speaking, unless a large majority in a society can agree that we know that it is true. 

So while it cannot be denied that the law must have some directive, as opposed to merely protective, function, the question remains as to what precisely it ought to direct us to.  The directions cannot come from any religion, but neither can they come from any ersatz religion such as leftism.  No theocracy, but also no 'leftocracy'!  Separation of church and state, but also separation of leftism and state.

This leaves us with the problem of finding the via media between a purely procedural liberalism and the tyrannical imposition of  prescriptions and proscriptions that derive from some dogmatically held, but strictly unknowable, set of metaphysical assumptions about man and world.  It is a dilemma inasmuch as both options are unacceptable.  

I'll end by noting that the main threats to our liberty at the present time do not emanate from a Roman Catholicism that has become a shell of its former self bereft of the cultural relevance it enjoyed for millennia until losing it in the mid-1960s; they proceed from leftism and Islam, and the Unholy Alliance of the two.

And so while the dilemma lately noted remains in force, a partial solution must take the form of retaining elements of the Judeo-Christian worldview, the Ten Commandments chiefly,  and by a restoration of the values of the American founding. Practically, this will require vigorous opposition to the parties of the unholy alliance.

Should Firearms Manufacturers be Civilly Liable for Gun Crimes?

Joe Biden thinks so:

Hold gun manufacturers accountable. In 2005, then-Senator Biden voted against the Protection of Lawful Commerce in Arms Act, but gun manufacturers successfully lobbied Congress to secure its passage. This law protects these manufacturers from being held civilly liable for their products – a protection granted to no other industry. Biden will prioritize repealing this protection.

The sentence I italicized is false, as you can see from the following summary of the Act. It is a willful, politically-motivated misrepresentation. The manufacturers remain civilly liable for product defects, just like other industries.  What the act prevents is solely their being held liable for "criminal or unlawful misuse of a firearm."

Protection of Lawful Commerce in Arms Act - (Sec. 3) Prohibits a qualified civil liability action from being brought in any state or federal court against a manufacturer or seller of a firearm, ammunition, or a component of a firearm that has been shipped or transported in interstate or foreign commerce, or against a trade association of such manufacturers or sellers, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, penalties, or other relief resulting from the criminal or unlawful misuse of a firearm. Requires pending actions to be dismissed. [emphasis added.]

The Act is reasonable and Democrat opposition to it is the opposite, as I now argue.

Suppose I sell you my car, transferring title to you in a manner that accords with all the relevant statutes. It is a good-faith  transaction and I have no reason to suspect you of harboring any  criminal intent. But later you use the car I sold you to mow down  children on a school yard, or to violate the Mann Act, or to commit  some other crime. Would it be right to hold me  morally responsible for your wrongdoing? Of course not. No doubt, had I not sold you that particular car, that particular criminal event would not have occurred: as a philosopher might put it, the event is individuated by its constituents, one of them being the car I sold you. That very event could not have occurred without that very car.  But that does not show that I am responsible for your crime. I am no more  responsible than the owner of the gas station who sold you the fuel that you used for your spree.

Suppose I open a cheesecake emporium, and you decide to make cheesecake your main dietary item. Am I responsible for your ensuing  health difficulties? Of course not. Being a nice guy, I will most likely warn you that a diet consisting chiefly of cheesecake is contraindicated. But in the end, the responsibility for your ill health lies with you.

The same goes for tobacco products, cheeseburgers, and so on down the line. The responsibility for your drunk driving resides with you, not with auto manufacturers or distilleries. Is this hard to understand?  Not unless you are morally obtuse or a liberal, terms that in the end may be coextensive.

The principle extends to gun manufacturers and retailers. They have their legal responsibilities, of course. They are sometimes the legitimate targets of product liability suits.  But once a weapon has been  legally purchased or otherwise acquired, the owner alone is responsible for any crimes he commits using it.

But many liberals don't see it this way. What they cannot achieve through gun control  legislation, they hope to achieve through frivolous lawsuits.  The haven't had much success recently.  Good.  But the fact that they try shows how bereft of common sense and basic decency they are.

Don't expect them to give up.  Hillary was in full-fury mode on this one.  According to the BBC, "She proposes abolishing legislation that protects gun makers and dealers from being sued by shooting victims." Biden follows in her footsteps.

There is no wisdom on the Left.  The very fact that there is any discussion at all of what ought to be a non-issue shows how far we've sunk in this country.

Nat Hentoff on 'Hate Crime' Laws

The very idea of a 'hate crime' is an absurdity to anyone who can think clearly. Is this why it is so beloved of the Left?

Hats off to Hentoff for a fine explanation in this 5:56 minute YouTube video of what is so wrong and dangerous and unconstitutional about 'hate crime' legislation. 

Of Cats and Mice, Laws and Criminals

Georg Christoph Lichtenberg, The Waste Books, tr. R. J. Hollingdale, New York Review Books, 1990, p. 101:

Certain rash people have asserted that, just as there are no mice where there are no cats, so no one is possessed where there are no exorcists.

Lichtenberg's observation puts me in mind of anarchists who say that where there are no laws there are no criminals.  That is not much better than saying that where there are no chemists there are no chemicals. 

Just as there are chemicals whether or not there are any chemists, there are moral wrongs whether or not there are any positive laws* prohibiting them.  What makes murder wrong is not that there are positive laws prohibiting it; murder is wrong antecedently of the positive law.  It is morally wrong before (logically speaking) it is legally wrong.  And it is precisely the moral wrongness of murder that justifies having laws against it.

And yet there is a sense in which criminals are legislated into existence:  one cannot be a criminal in the eyes of the law unless there is the law.  And it is certainly true that to be a criminal in the eyes of the law does not entail being  guilty of any moral wrong-doing. There are senseless, incoherent, and unjust laws. 

But the anarchist goes off the deep end if he thinks that there is no moral justification for any legal prohibitions, or that the wrongness of every act is but an artifact of the law's prohibiting it.

As I like to say, anarchism is to political philosophy what eliminative materialism is to the philosophy of mind. Both are 'lunatic' positions. But 'lunacy' has its uses.  It is instructive in the way pathology is.  We study diseases not to spread them, but to contain them. We study diseases of the mind not to promote them, but to work out the principles of intellectual hygiene.

____________

*Positive laws are those posited by a legislature. See here:

In general, the term "positive law" connotes statutes, i.e., law that has been enacted by a duly authorized legislature.  As used in this sense, positive law is distinguishable from natural law. The term "natural law", especially as used generally in legal philosophy, refers to a set of universal principles and rules that properly govern moral human conduct. Unlike a statute, natural law is not created by human beings. Rather, natural law is thought to be the preexisting law of nature, which human beings can discover through their capacity for rational analysis.

 UPDATE (1/24). Tom Anger comments:

I agree with what you say in "Of Cats and Mice, Laws and Criminals"; specifically, this:

 

What makes murder wrong is not that there are positive laws prohibiting it; murder is wrong antecedently of the positive law.  It is morally wrong before (logically speaking) it is legally wrong.

 

But I have a problem with the quoted material in the footnote; specifically, this:

 

[N]atural law is not created by human beings. Rather, natural law is thought to be the preexisting law of nature, which human beings can discover through their capacity for rational analysis.

 

I have never been able to accept that view of natural law. Where does the preexisting law come from?

 

My view is that natural law consists of norms that arise from human nature. An example would be the Golden Rule, or ethic of reciprocity. It seems most likely to have arisen from experience and normalized through tacit agreement before it was enunciated by various "wise men" over the ages.

 

BV: Well, if natural law is grounded in human nature, then there might not be much or any difference between what you are maintaining and what the authors of the footnote say.  Both of you would then be saying that law cannot be wholly conventional.

The Stalinization of Trump Derangement Syndrome: "Show Me the Man, and I'll Find You the Crime"

From a Cato Policy Report:

. . . Alan Dershowitz discusses his time litigating cases in the old Soviet Union. He was always taken by the fact that they could prosecute anybody they wanted because some of the statutes were so vague. Dershowitz points out that this was a technique developed by Beria, the infamous sidekick of Stalin, who said, “Show me the man and I’ll find you the crime.” That really is something that has survived the Soviet Union and has arrived in the good old USA. “Show me the man,” says any federal prosecutor, “and I can show you the crime.” This is not an exaggeration.

And now Donald J. Trump, the legally elected president of the United States, is the man.  To prosecute someone for a crime, some crime has to be alleged.  But in this case what is the crime?  Alan Dershowitz raises the question and answers it: there is no crime. 

There is no evidence that Trump or his team colluded with the Kremlin to swing the election in Trump's favor. But even if there were, such collusion would be at worst political wrong doing, not a crime.  This is not my opinion but the opinion of a distinguished Harvard law professor who is not a Trump supporter.  As Dershowitz told Tucker Carlson last night, "I voted for Hillary Clinton very proudly."

Around 3:10 Dershowitz speaks of "hacking the DNA" several times. He means: hacking the DNC, the Democrat National Committee.  Carlson failed to catch the mistake.

I now want to make a point that Dershowitz did not make last night, namely, that phrases like 'hacking the election' have no definite meaning.  You can literally hack into John Podesta's e-mail account, but you can't literally hack an election.  (It has been claimed that the password he employed was 'password.' Could Podesta be that stupid or careless? I am skeptical.)  Of course, you could use 'hack an election' to mean 'influence an election,' but then you will have changed the subject.  Almost all of us, from low-level bloggers to the most august pundits, were trying to 'hack the election' in the sense of 'influence the election.' 

What we have here with the appointment of special prosecutor Robert Mueller is not an inquiry into whether a crime has been committed, but a witch hunt: a search for a nonexistent crime to pin on a much-hated man.

But didn't Trump obstruct justice by firing Comey?  Is that not what is maintained by such powerful intellects as Maxine Waters and Nancy Pelosi? Of course not, as Dershowitz points out at 3:38 ff. Trump's firing of Comey was well within the president's constitutional rights. "Under the unitary theory of the executive, the president has the right to direct the justice department." I would add that the  president fired Comey for good reason.

No doubt the 'optics' were bad: the firing looked self-serving. So the haters pounced suggesting that the only reason Trump fired Comey was because Comey was about to expose criminal acts by Trump.  But that is just nonsense. Again: which criminal acts? 

Even if Trump was sick of Comey and wanted him out for personal motives, he had solid impersonal legal reasons for firing him.  They were set forth in the Rosenstein memorandum.

The Trump haters appear to be committing a version of the genetic fallacy.  The psychological motivation of a claim or action is irrelevant to the question of the truth of the claim or the justifiability of the action.  Had Hillary or Bernie or Jill or Jeb! been president, each would have been justified in firing Comey.  Again, this is because of the availability of solid impersonal legal reasons for his firing.  And you can bet all of Hillary's ugly pant-suits that she would have fired him  had she won as she was 'supposed to.'

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Fake Law

Here:

Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law's legitimacy and the warping of judges' self-understanding of their constitutional role.

Ad Ignorantiam and the Law

The day before yesterday I wrote,

In a criminal case the probative bar is set very high: the accused has to be shown guilty beyond a reasonable doubt.  Here too there seems to be a legitimate appeal to ignorance: if it has not been shown that the defendant is guilty beyond a reasonable doubt, the conclusion to be drawn is that he is not guilty.

We will have to examine this more carefully in a separate post.

Herewith, the separate post.  Plainly, the following is an invalid argument:

1. It was not proven beyond a reasonable doubt that it was Smith who killed Jones.

ergo

2. Smith did not kill Jones.

Examples like this appear to support the idea that some appeals to ignorance (or arguments from ignorance) are reasonable and non-fallacious.  According to Douglas N. Walton,

. . . the criminal law presumes that a person is not guilty if he has not been shown to be guilty.  This is an ad ignorantiam form of argument, but it can be reasonable in the context of the rules of argument in the criminal law.  (Informal Logic: A Handbook for Critical Argumentation, Cambridge UP, 2007, 20th ed., p. 47)

I wonder if this is right. Which better represents a criminal process that terminates in an acquittal?  Is it the above argument or the following argument?

1. It was not proven beyond a reasonable doubt that it was Smith who killed Jones.

ergo

3. The presumption of Jones' innocence has not been defeated and Jones is in the eyes of the law not guilty.

I now think it is the second argument.  But note that (i) the second argument is valid, and (ii) there is no appeal to ignorance in the second argument.  The validity of the second, enthymematic, argument is obvious when we make explicit the tacit assumption, namely, that

4. If the accused in a criminal proceeding has not been proven to be guilty of the crime with which he is charged beyond a reasonable doubt, then the presumption of innocence has not been defeated and the accused is in the eyes of the law not guilty.

So the second argument is (formally) valid.  It also does not represent an appeal to ignorance.  One is not arguing that:  Jones is not guilty in reality (as opposed to in the eyes of the law) because it has not been proven that he is not guilty.  One is arguing  that the presumption of innocence has not been defeated.  The following are different propositions:

a. Jones is not guilty

b. Jones' presumption of innocence (POI) has not been defeated.

It ought to be obvious that they are different.  They are logically independent.  Each is consistent with the negation of the other.  Thus the following sets are consistent dyads: {Jones is guilty; Jones' POI has not been defeated}, {Jones is not guilty; Jones' POI has been defeated}.

Conclusion

According to Walton, ". . . the criminal law presumes that a person is not guilty if he has not been shown to be guilty.  This is an ad ignorantiam form of argument . . ."  I think this betrays a misunderstanding of the notion of presumption, and in particular, presumption of innocence. 

The presumption is not that a person is not guilty if he has not be shown to be guilty; the presumption is that he is to be treated as if not guilty, if he has not been shown to be guilty.  In the case of O. J. Simpson, almost everyone agrees that he is guilty of murdering Nicole Brown Simpson and Ronald Goldman.  Yet he was found not guilty.  Obviously, there is a difference between being not guilty (being not guilty in fact) and being found not guilty (being not guilty in the eyes of the law).  The presumption of innocence was not defeated in that trial.  But that is consistent, as I argued above, with the accused's being guilty.

It is therefore a mistake to think that the POI procedural rule embodies an appeal to ignorance. And since there is no appeal to ignorance here, there is no reasonable or non-fallacious appeal to ignorance.

UPDATE:  Dave Bagwill writes,

 

My grand-dad did not mince words, nor did he suffer fools. When I tried to trick him with verbal technicalities, he would accuse me of "trying to pick the fly shit out of the pepper".

 He would have said that about your latest post 'On Ad Ignorantiam and the Law', but he would have been wrong. You made some very fine, fine distinctions in that post that really cut to the heart of the matter. Thanks, and well done. (I've used that book by Walton for years and generally found it useful.)

You're welcome, Dave.  My response to your grandfather would be to make yet another distinction, one between hairsplitting and the drawing of necessary distinctions, and then distinguish different kinds of hairsplitting.

One sort of hairsplitting is  to make distinctions that correspond to nothing real, distinctions that are merely verbal. The 'distinction' between a glow bug and a fire fly, for example, is merely verbal: there is no distinction in reality. A glow bug just is a firefly. Similarly there is no distinction in reality between a bottle's being half-full and being half-empty. The only possible difference is in the attitude of someone, a drunk perhaps, who is elated at the bottle's being half-full and depressed at its being half-empty.

But this is not what people usually mean by the charge of hairsplitting. What they seem to mean is the drawing of distinctions that don't make a practical difference. But whether a distinction makes a practical difference depends on the context and on one's purposes. The truth of the matter is that there are very few occasions on which the charge of hairsplitting is justly made. On almost all occasions, the accuser is simply advertising his inability to grasp a distinction that the subject-matter requires.

Walton may be the premier writer on informal logic.  His book is apparently well-thought-of.  2007 saw the 20th edition.  I'd guess there have been editions since then.

 

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