Proportionality and Justice, and the Rule of Law

I.
Secession is not an initiation of force. The principle itself is one of peace; withdrawing your consent to a government endeavoring to be left alone is not a violent act, as some would have us believe.
Timothy Sandefur’s view that secession is an act that can be put down by force, killing people if necessary, inherently assumes that secession is a violent act. 

It must necessarily assume this stance or Sandefur’s position could in any sense be construed as libertarian. If his position is not based on secession as a violent principle, it cannot have any validity at all. Any peaceful action met with force must be considered illegitimate. 
Sandefur’s position relies on the notion of positive law; that any law the legislators or magistrate passes is just. Positive law holds the rule of man-made law above any concept of natural law. Under natural law we would repudiate the use of force in situations other than in self-defense.
The notion that a government may do this because secession would affect all the other individuals still consenting to the arrangement and cause them harm is fallacious as well (this argument parallels Abraham Lincoln’s famous non sequitur that the Union would cease to exist if states were allowed to secede). One could say the same thing about an arrangement where someone voluntarily signs up for my gym, paying me twenty dollars per month and then decides to leave my gym; i certainly am harmed by this, but do i have a right to compel this person to stay a member of my gym and patronize my business? No; the decision of whether we will patronize a particular government is an intensely personal choice and is fundamentally no different than the decision of whether or not we will choose to patronize a particular business.

An example Murray Rothbard once used said:

A is a successful seller of razor blades. But then B comes along and sells a better blade, teflon-coated to prevent shaving cuts. The value of A’s property is greatly affected. Should he be able to collect damages from B, or, better yet, to enjoin B’s sale of a better blade? The correct answer is not that consumers would be hurt if they were forced to buy the inferior blade, although that is surely the case. Rather, no one has the right to legally prevent or retaliate against “harms” to his property unless it is an act of physical invasion. Everyone has the right to have the physical integrity of his property inviolate; no one has the right to protect the value of his property, for that value is purely the reflection of what people are willing to pay for it. That willingness solely depends on how they decide to use their money. No one can have a right to someone else’s money, unless that other person had previously contracted to transfer it to him.

The truth is, if a government proclaiming to be instituted for the purpose of the protection of our liberties and property is fulfilling its purpose, it wouldn’t need to resort to force to compel individuals to submit to it. If a government is doing its job well, it should be able to rely on the voluntary agreement and contributions of its citizens to sustain itself. Namely, the necessity of the monopoly of force that is central to any scheme of government is evidence that the government is inefficient and would be quickly eclipsed by more attractive arrangements if forced to compete.
II.
Implicit in the theory of justice in the notion of proportionality; we ask ourselves “does the punishment fit the crime?”
Imagine walking down the street and you start to cross the street. A police officer decides to stop you because you didn’t use a crosswalk and charges you with jaywalking.  He decides that your punishment is to be hung on the spot; we easily arrive at the conclusion that the punishment is not proportional to the crime.
Often it is contended that we need to accept responsibility for our actions and take the punishment that comes with it. Implicit in this perception is the notion of justice. If we commit a crime and subsequently cause harm to an individual, our ability to accept responsibility for our action and bear the punishment is a recognition of its justice; it is the recognition that we are morally responsible and deserve to be punished.
However, in the case of the jaywalker, to accept responsibility for the crime and concede the punishment of death is to succumb to injustice. In this instance, where punishment is not proportional, we may say that man can consistently accept responsibility for his actions while at the same time recognizing the injustice of the law and repudiating the punishment. Even further, as man becomes aware that a vast quantity of behaviors are unlawful despite not causing harm to anyone else, he will lose respect for the law and consequently reject any and all arbitrary punishment as illegitimate.

There is no honor in submitting to unwarranted punishment; there is only honor in resistance to all that is unjust. To passively accept disproportional punishment is not only doing a great disservice to yourself, it is doing a great disservice to humanity. The more we are willing to accept injustice, the greater the danger of injustice becoming the standard. Henry David Thoreau said, Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?” A society in which arbitrarily harsh punishment is customary is a society of tyranny and bondage. We must resist, by deadly force if necessary, every attempt of the government to dispose of proportionality and substitute a capricious system of despotism in its place. So long as we are at the mercy of arbitrary power, we can never be truly free.
III.
As the tyranny of law becomes more prevalent, the greater the damage the rule of law does to the citizens. Under the rule of law, where no one is beyond reproach of the law, a citizen that commits victimless crimes must be punished regardless of whether the law itself is just or not. The rule of law is only just if we limit the scope of law to those actions that invade on an individual’s property rights; namely, violent actions. 

The more voluminous the law becomes, the more difficult it becomes to understand and abide by the laws. More law creates more classes of criminals who have done nothing to harm anyone else. Eventually, the law becomes so far reaching that all of society becomes a class of criminals; the only difference between a murderer and a jaywalker is a question of degree. If, under the law, everyone may be considered a criminal, it undermines the fundamental purpose of the law: justice. Further, it drastically skews the criminal justice system into a system where we are guilty until proven innocent.
The rule of law is important because as long as our rulers are subjected to the same laws and punishments we are, the greater the incentive there is against creating arbitrary laws. So long as the scope of our laws remains confined to strict limits, the rule of law remains beneficial; a system in which our rulers are subject to the same laws as we are ensures an equitable system of justice. However, once we surpass the limits defined by the non-aggression axiom whereas we define crimes to include actions in which we do not harm another we come to an impasse. 

I would much prefer a system of law where if I commit a victimless “crime” I am in no danger of punishment versus a system of law where a king is also subject to the same punishment as I for a victimless crime. The problem with the rule of law is that it may be used to justify gross excesses of positive law just the same as the most fundamental natural law. If we may define the rule of law simply as strictly recognizing the natural law principle of non-aggression and applying it to all citizens equally, I can approve of this conception of the rule of law. But if we are simply to define the rule of law as applying whatever law may exist to everyone equally, regardless of the content of the law (as we currently do), I cannot consent to the rule of law as a beneficial institution. If the definition of the “rule of law” can be used to justify positive law and not recognize natural law, the rule of law is a misguided principle.
Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s