Liberty Matters

Bad Laws and Good Rhetoric

Aeon asks:  “To rally people to see [an unjust statute’s] lack of authority, is it better to say, ‘That’s not even a law!’ or ‘That’s a bad law’?”  And Aeon suggests by way of answer that even if the first approach should turn out to be technically correct, the second approach is a “more effective strategy for mobilizing dissent”; and his reason for this is that those who “go around insisting that the income tax is illegal” are “generally regarded the same way as moon-landing-hoax people or flat-earthers.”
I think the income-tax denial approach is actually a different strategy from the lex injusta non est lex approach.  The income-tax denier says, “That’s not a law because of the details of positive legislation (e.g., the text of some statute, the history of its enactment, or both).”  The lex injusta approach, by contrast, says, “That’s not a law because it’s unjust.”  So any rhetorical drawbacks of the income-tax denial approach do not necessarily reflect negatively on the lex injusta approach.
Of course Spooner uses both approaches.  In 1845 he took the income-tax denial approach in appealing to the text of the Constitution, properly interpreted, to show that slavery lacked legal authority; and in 1870 he in a way took the income-tax denial approach again in appealing to the circumstances of the Constitution’s ratification to show that the Constitution itself lacked legal authority.  (Though of course his way of conducting the income-tax denial approach involves normative premises.)  And in both periods he also defended the broader view that any legislative enactment inconsistent with natural law lacks legal authority.
In any case, Spooner’s income-tax denial approach with regard to slavery’s legality seems to have had a fair bit of rhetorical effectiveness. The Unconstitutionality of Slavery went through several printings, won the endorsement of such prominent abolitionists as Frederick Douglass and Gerrit Smith, and was even “officially adopted by the Liberty Party in 1849”[88] as the decisive statement on the legal status of the institution.  This is hardly akin to the reception accorded flat-earthers.
But the lex injusta non est lex approach seems to have its share of rhetorical effectiveness too.  After all, it’s the basis of Martin Luther King’s arguments in his “Letter From Birmingham Jail,”[89] one of the most popular and frequently cited documents of the civil-rights movements; and as I’ve mentioned before, the doctrine’s use in a mainstream action movie like Machete is likewise indicative of its possessing some popular resonance. 
Plus it was the rallying cry of Spooner’s great rival William Lloyd Garrison; while the two disagreed on what I’ve been calling, following Aeon, the income-tax denial approach (far from defending the Constitution à la Spooner as a crypto-abolitionist document, Garrison denounced it as “a covenant with death and an agreement with hell”),[90] the two men were quite close on the lex injusta doctrine.  Garrison wrote that “properly speaking, there is but one government, – and that is not human, but divine; there is but one law, – and that is ‘the higher law’”; and all human governments, democratic or otherwise, are “based upon the doctrine that ‘might makes right’” and so “must ultimately perish.”[91]  Given Garrison’s status as arguably the most influential of the American abolitionists, the lex injusta approach must not be such a rhetorical dealbreaker.
As I’ve written elsewhere, “for those of us who are involved in radical political projects such as agorism that involve promoting mass disobedience to and bypassing of governmental edicts,” the lex injusta approach has the attraction of “depriving unjust statutes and decrees of the ... aura of authority that attaches to the word ‘law’” – while “those whose political projects are more moderate and reformist may reasonably prefer the weaker ... terminology.”[92]
I think some remarks of Spooner’s fellow abolitionist Wendell Phillips lend additional (and inadvertent) support for my preference for the lex injusta approach.  In his 1847 critique of the first volume of Spooner’s Unconstitutionality of Slavery, Phillips complains that by upholding the principle that “Only what is just and right is law,” Spooner is taking “the first step toward anarchy.”[93]  Phillips writes:
There can be no more self-evident proposition, than that, in every Government, the majority must rule, and their will be uniformly obeyed. Now, if the majority enact a wicked law, and the Judge refuses to enforce it, which is to yield, the Judge, or the majority? Of course, the first. On any other supposition, Government is impossible. Indeed, Mr. Spooner’s idea is practical no-governmentism. It leaves every one to do “what is right in his own eyes.”[94]
Phillips, by contrast, insists that “for the purpose of the civil government of any nation,” it is properly up to “the majority of that nation” to “decide what is just and right”; and “their decision is final, and constitutes, for that nation, Law.”[95]
I think Phillips is right about the natural connection between the lex injusta doctrine and anarchism (even though most historical proponents of lex injusta – Plato, Cicero, Aquinas, etc. – have been very far from being anarchists).  The difference is that I reverse the evaluation; if Spooner’s legal naturalism is “practical no-governmentism,” I say not so much the worse for Spooner’s approach, but rather so much the better.
Of course Phillips’s concern about the dangers of unrestrained private judgment are akin to those that Randy raises in his most recent contribution.  I’ll address that concern in my next post.
[88.] Kunal M. Parker, Common Law, History, and Democracy in America, 1790-1900: Legal Thought Before Modernism (Cambridge: Cambridge University Press, 2011), p. 180.
[89.] Martin Luther King, Jr., “Letter From Birmingham Jail,” Liberation: An Independent Monthly (June 1963), pp. 10-16, 23.
[90.] Quoted in Wendell Phillips Garrison and Francis Jackson Garrison, William Lloyd Garrison, 1805-1879: The Story of His Life Told by His Children, vol. 3 (Boston: Houghton Mifflin, 1894), p. 412.
[91.] William Lloyd Garrison, “Voting – Government – Slavery and War,” The Liberator (1 August 1856), p. 2; online at: <>.
[92.] “Legal Naturalism Is a Disjunctivism,” online at:  <>.
[93.] Wendell Phillips, Review of Lysander Spooner’s Essay on the Unconstitutionality of Slavery, Reprinted From the “Anti-Slavery Standard,” With Additions (Boston: Andrews & Prentiss, 1847), p. 15.
[94.] Phillips, op. cit., p. 10.
[95.] Phillips, op. cit., p. 15.