An 'Inner' Morality of the Law?

Most political demonstrations that actually try to do something are illegal. And the usual reply to direct action is strict legalism, which doesn't address the arguments that protesters make. It's tiring when legalism itself is so often cited as if 'morality' were bound to it. Morality and law are two separate things. But to push the thesis even further, there is no morality. This is something I'm comfortable with saying. There is no morality. There is only moral sentiment. And these sentiments are not universal. You cannot speak of duties to any of these things--'morality' or 'law'--insofar as they do not exist or there is nothing binding about them. So my Kantianism doesn't go very far. Still, if you had a duty it would be to preserve the nebulousness of 'morality' foremost and 'law' second.

Some have suggested, however, that there is an inner morality to the law itself. I tend to agree with this argument that Lon Fuller puts forth, but only to a certain extent. On this account, a legal system itself has to meet certain conditions which then make it even functional, and only when it's a functioning legal system can we talk about whether there is morality to its external practices and whether we are bound to it. Fuller argues for a natural law theory about this legal system. But I disagree: there isn't any kind of morality built into the system. There is nothing inside it or coincidental with it. There are only relativistic moral sentiments of those legislating, and the historicism about the history of lawmaking attests to this. But there is an interesting point to make here which doesn't leave us completely in the dark. Meeting these conditions certainly makes a legal system useful and functional for legislating. And that is the first objective--isn't it--to make legal systems functional? At this point, nobody is worried about whether we're doing what is "morally right": because it is preferable to have no legal system at all, then to have one in which, for example, cases are decided by the King ex post facto at the end of each year. We would not know which rules to follow before breaking them! So our first question is simply a question of functionality and structure. We can then ask, for what purpose should the legal system have a purpose? And that, I would say, is to facilitate a society where no one person's rights are violated for the sake of anyone or anything else.

Law basically has three functions then. Maintaining property rights, human rights, and enforcing contracts. I don't think we are truly bound to any system which demands more of us than this. Such a society ensures that no individual rights are violated. But in fact, we can pressure this further and ask whether we are even by nature bound to a system which demands these basic rules? It is possible to live outside the system entirely. Individualist Anarchists like Murray Rothbard would certainly argue for it. Yet I suppose it depends on what your sentiments are. But here is something firm: having a structure to assert the trustworthiness of a contract is certainly useful, and so is having the right to property and protection from invading marauders. So in this way, the minimal state has an attraction to it, and those on the outside would want membership. It isn't coercive in any way.

But back to the political demonstrations, which is really what I want to make a point about. For those of us who believe we live under a tyrannical regime by the very nature and structure of our legal system, have we any recourse but to violently oppose our government? We do not like this policy of war-making in our name. Our elected officials have failed us. There is corporate lobbying in the White House. These are all things for which I oppose my government. The petitions for which we have signed have not been considered thoughtfully, and it isn't simply 'representation' which is lacking. Have I, then, an obligation to follow the rules of my government obediently? To the extent that following these rules are useful, yes. But its external laws (that is, everything legislated) never seemed morally binding to me in the first place. To the extent that change is more important than temporary comfort, the obligation seems null.

JFK said, "Those who make peaceful revolution impossible will make violent revolution inevitable," and I believe this is certainly true. Those who make peaceful revolution impossible will make violent revolution inevitable. Is it true then that peaceful revolution is impossible? Consider what has happened in the last six years since 9/11. No one outside the Congress and the special war cabinets decided whether there was indeed a justified causus belli for the invasion of Iraq. The petitions of citizenry have no effect, and individuals' rights are being violated. Will peacefully signing more of the petitions change anything government is doing to violate these rights? No, this is impossible at this point. General Petraeus has said we ought to spend ten more years in Iraq, and this is unacceptable if you share the sentiment. And so, affirming JFK's point, and realizing that the encouragement for 'peaceful change' is the osing argument, then indeed a violent revolution is inevitable at this point.