A Primer on Law, Crime, and Justice
LAW is not a “rule of civil conduct prescribed by the supreme power of a state.” Rather, Law is the “rule, principle, obligation or requirement of natural justice.” 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.” “Law is organized justice.”
CRIMES are not “things that have been made illegal by whatever body dictates such things in a given society.” Rather, Crimes are “those acts by which one man harms the person or property of another.”
JUSTICE: “When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all of these. They are defensive; they defend equally the rights of all. . . . [T]he statement, the purpose of the law is to cause justice to reign, is not a rigorously accurate statement. It ought to be stated that the purpose of the law is to prevent injustice from reigning. In fact, it is injustice, instead of justice, that has an existence of its own. Justice is achieved only when injustice is absent.”
Law is defensive. Its purpose is to prevent injustice from reigning. The responsibility of the prosecutor within the Law is to defend the rights of all, and thereby to prevent injustice from reigning. The responsibility of the criminal defense attorney within the Law is to defend the rights of his client, and thereby to prevent injustice from reigning.
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You can define words however you (or Lysander Spooner) wishes to have them defined. But to declare that speakers of English misunderstand English words (or that lawyers misunderstand legal terms) because they don’t accept your special take on them – well, that’s Through the Looking Glass:
‘There’s glory for you!’
`I don’t know what you mean by “glory”,’ Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!”‘
`But “glory” doesn’t mean “a nice knock-down argument”,’ Alice objected.
`When I use a word,’ Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.’
`The question is,’ said Alice, `whether you can make words mean so many different things.’
`The question is,’ said Humpty Dumpty, `which is to be master — that’s all.’
1I, too, of course, regularly use the words “law” and “crime” in the colloquial way you (and others) formally define them. But I think it’s important to acknowledge as often as possible what can be their only true meaning. Consider the context in which Spooner was writing. He was writing about black slavery. Whether or not the government called harboring a fugitive “slave” a “crime,” it wasn’t a crime. To call the “laws” of the Nazis concerning Jews “laws” is to diminish the very concept of Law, is to diminish the only true Law.
2Denotations are not “colloquial” uses. You treat words, which are after all no more than linguistic conventions differing from group to group, as if they had some idealized, platonized form waiting to be discovered – and you’ve discovered them (or maybe Spooner or whoever Spooner took from).
There’s a difference between philosophical ideas of “Law” and “Crime” (which pretty much require both the quotation marks and the upper case) and the word “law” or “crime.” If you insist that the words can properly be used only as a philosophical concept (and yours, by the way, not everyone’s, lots of folks believed – and still believe – that genocide and slavery are morally acceptable, if not obligatory), fine. Believe what you will. But you’re not likely to convince anyone by simply declaring it so.
Humpty Dumpty it still is.
3I believe you’ll find each of our definitions for these words in the dictionary. I refer you to the chapter in The Unconstitutionality of Slavery that I linked to for why “my” definitions are the more proper definitions of these words. But I don’t insist that these words can properly be used only in their most proper sense. Nevertheless, if when people define “law” as “a rule of civil conduct prescribed by the supreme power of the state” they mean to say that law is not first and foremost the “rule, principle, obligation or requirement of natural justice” (by which the lawfulness of, e.g., the state’s “laws” are measured), as I think people defining it in this way typically mean to say, that’s pernicious.
You got me on my use of the word “colloquial” though.
4Lots of things are in dictionaries. The question is primary meaning. And, by the way, what the hell is “natural justice”? You sure that you have a better handle on that than any number of people who disagree with you? How do you know?
How many wars have been fought because god (you know, what many people believe to be the font of “natural justice”) told each side they were right? You’re insisting that the “correct” definition is an abstraction that can only be defined either as another abstraction or as “What I believe.”
If you think that’s helpful, I can’t stop you. I can enjoy the philosophical debate, but not when the defined terms are, by definition, little more than divination or revelation.
5On what basis were the Nazis tried as criminals. On what basis did we as a society finally come to understand that human slavery was a crime. Only when the understanding that slavery was a crime became sufficiently widespread in society was that understanding enacted in the constitution. But many understood with every fiber of their being that slavery was a crime well before that point in time. Likewise, many of us clearly perceive and understand that locking a person up in a cage like an animal for possessing or selling pot (or for other mere vices) is a crime. Some things I’m sure of and some things I’m not sure of. I’m sure that locking a person up for possessing pot is a crime.
I think we understand a lot more about “natural justice” than you give us credit for. We use the same rational processes legislators are supposed to use in enacting the government’s laws, unhindered by the special influences which go into making legislation and which are characteristically at odds with justice.
6Certainty is a wonderful thing. There are many in our society who believe with every fiber of their being, to an absolutely certainty, they couldn’t be more sure, that homosexual sex is not merely something that doesn’t interest them but that it is so evil, so horrifically wrong, so morally indefensible, that it must be outlawed. There are those who believe, with equal fervor, that homosexuals should be killed. The people of the Westboro Baptist Church believe it is so wrong that God (in whom they also believe, and theirs gets an uppercase “G”) kills American soldiers because this nation does not adequately punish homosexuality. They believe that all rational and reasonable people should agree with them, and don’t see why that doesn’t happen.
Others, of course, are quite sure – equally sure, in fact – that homosexuality is morally fine and that no rational, reasonable person could disagree.
Good to know that my sense of “natural justice” is right and their sense of it is wrong and that we can all agree on that.
Yes, we abolished slavery in this country by Constitutional amendment. That’s when it became illegal, when the law adopted what you believe (and what I believe) to be the correct position on slavery. Of course, that happened because the North won what at least some in the South still refer to as “The War of Northern Aggression” as they celebrate Confederate Memorial Day.
I’m not saying that there isn’t some collective national consensus on certain things that are right and wrong (though it’s far from unanimous, and national rather than universal). But you know, we’re each inclined to believe that our sense of what’s right is in fact what’s right. Just ask the folks who stone women to death as punishment. It is, they’re quite sure, the right thing to do. I assume you’d disagree. And of course, you both know you’re right. Whew, glad your approach to things resolves the question.
7One thing I’m not sure of is whether the death penalty is ever justified. But the very fact that I’m not sure leads me more and more to believe that we as a society should not be imposing that particularly-drastic form of coercion.
We have nothing other than our sense of justice, however poor or developed it might be, however much or little consensus we might achieve, to guide we the people in our law-making.
The point, the import of advancing the definition of law I’ve advanced, is to diminish respect for the coercive power of the state.
The very disagreements and presumed uncertainty you cite over what justice entails are part of the argument for liberty, and against the right of the state to do whatever a majority of citizens through their elected representatives purportedly wants to do so long as a judge says it doesn’t violate the constitution.
Suppose a clean slate without the state. The instinct for self-preservation is a constant, as is the concomitant inkling that each of us has the right to self-defense, of person and property; hence the definition from Bastiat of the law as the organization of the right to self-defense. There will still be people like the Westboro Baptist Church according to whose false conception of justice homosexuals have no rights, just as there will still be robbers and murderers. The slave-owners thought of the abolitionists as threatening their rights to property. As neighbors we’ll just have to consult our poor sense of justice (informed by whatever is informative) in deciding whose side to take when Westboro comes calling at Adam and Steve’s house, and in organizing with others our right to self-defense. There’d be nothing else to consult, just as there’s nothing else to consult now.
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