Tom McKenna said on January 08, 2009  

Ken-- I'm not a statist. In my comment to your previous post, I state: "the decision to wilfully violate a just law enacted by legitimate authority is itself a moral failing."

There can be, are, and have been, unjust laws. The determination of when a law is unjust is a thorny issue, since it is ordinarily not a matter of mere private interpretation, but ought to follow from at least some formal body of moral reflection accepted by norms generally recognized in classical Western moral reasoning.

Of course, slavery and Jim Crow are two great examples of such exercize in identifying unjust laws. While it is not easy or self-apparent how to articulate when a law is unjust, it is a task that can be accomplished... but as you say, that is a topic for another place and time.

 Anonymous said on January 08, 2009  

Excellent post. Thanks. The malum in se/malum prohibitum distinction is about as useful as the distinction between general and specific intent.

I must say, however, I had trouble following your math :) I even busted out my Windows calculator to try to follow your speeding hypo, to no avail. As you say, though "Nevertheless, it makes the point." :)

 Flash Gordon said on January 09, 2009  

"Speeding" is immoral?

Is setting the speed limit unreasonably low so that all traffic is "speeding" in order to write more tickets immoral? After installing a red-light camera at an intersection the politicians and bureaucrats have been known to shorten the yellow cycle in order to raise more revenue from "violators" even though the shorter yellow cycle increases accidents. Is that moral?

What is immoral is creating a dangerous situation for others. If politicians and bureaucrats had a sense of shame it might be immoral to speed because the speed limit would be set and enforced solely for safety reasons. But that is not the case and it never will be.

Shortening the yellow cycle to raise revenue from a red light camera is not just immoral. It is criminal. If anyone is killed in that intersection the politicians and bureaucrats who made the decision to shorten the yellow cycle to satisfy their greed for other people's money should be charged with murder.

 Aussie Pleader said on January 09, 2009  

Nice post. In violating the constructed laws of the state (as opposed to the 'natural laws' of society) a good rule of thumb is to give caesar caesar's due (ie. do the crime, do the time with head held high). God or History will look after the rights and wrongs of it all down the track.

And as to your last comment, that's got to do with the 'golden rule' (who has the gold, makes the rules). Not sure if a 'natural' or 'constructed' law, but one to ignore at one's own peril.

 Rick Horowitz said on January 09, 2009  

I just can't agree that all laws deserve our deference. At least not at all times.

Apparently, I'm not alone in that, as there are no human beings on earth who have not broken some law at some point in their lives. You actually may not even know when you've done it, but you've done it. But there's neither enough time nor enough honesty in the world for me to prove that statement. You'll just have to ask yourself if this is true of you. And, no, you don't have to tell. The government may not care about things like the Fifth Amendment, but you can.

And, incidentally, even the government breaks its own laws all the time. It just either ignores that fact, or pronounces it "okay." Usually for some "greater purpose" The latter is sometimes called "a balancing test" wherein the governmental interest wins. After all, it IS the government.

Laws end up on the books in all kinds of ways and from all kinds of sources, some of which, frankly, are not legitimate, however much they may have the stamp of governmental approval.

And although some laws just should not exist, there is often nothing a minority (particularly if it appears at the moment to be a minority of one: oneself) can do about it, other than ignore it.

Of course, in the end, our legal system breaks down to "might makes right." So ignoring a law which should not exist can bring consequences.

That still doesn't make the law right. And, for some people, it still doesn't justify giving it deference.

 Edintally said on January 09, 2009  

You need a new dictionary. Malum in se is Latin for "evil in itself", not "wrong in itself" HUGE difference.

Are you really positing that "..[an] angry woman who broke the public peace by habitually arguing and quarreling with her neighbors." is inherently evil? Really?

and

"punishable by dunking: being placed in a chair and submerged in a river or pond."

this is not immoral behavior of the State? Really? Seriously?

I'm beginning to feel like I'm on an episode of Punk'd.