The blog Thoughts on Liberty recently posted a piece arguing that Snowden should face punishment for his actions.  The main argument:

In short, I’m not hugely happy with the idea of people breaking the law for reasons of principle (even when those principles are very high minded) and then being unwilling to take the rap if caught. If we all took it upon ourselves to break the law whenever we felt like it because reasons, things would go to hell in a handbasket pretty quickly. For every Edward Snowden there are people committing far more serious crimes they also believe to be sanctioned by their consciences: FGM. Honour killings. Vendetta. And applying it selectively is the fastest and surest way to destroy the rule of law, particularly the requirement (which Hayek sets out with admirable clarity in The Road to Serfdom) that laws be applied consistently.

We can’t let people off simply because they happen to break the law in ways we like. So Socrates drank the hemlock. Cicero waited patiently for his executioner. Thoreau and King went to jail.

I’m too busy to write a long response to a short argument, but here’s what I see as wrong with this:

A. First, it assumes that governments have authority. (Authority = the thing that makes you have a duty to obey the law because it’s the law.) But it’s pretty much the consensus in political philosophy that governments don’t have authority, since none of the arguments (consent, hypothetical consent, tacit consent, democratic equality, good Samaritanism, etc.) for government authority work. Anyone familiar with the state of political philosophy would thus know that it’s very controversial to assume government authority, and would thus recognize that she has the burden of proof to establish there is any authority whatsoever. This article just assumes there is authority without argument.

B. Second, even if governments did in general have authority, they don’t have authority to do whatever they please. So, even if I had a duty to pay my taxes, it doesn’t mean that I have a duty to do just whatever my government commands me to do. If governments have authority at all–and it’s not clear they do–their authority is sharply delimited. Snowden revealed that the government was doing something it had no authority or legitimacy to do. To take an obvious example, Alan Turing was forbidden from engaging in homosexual intercourse. But that was far outside the rightful scope of the British government’s rule, and so he had no duty to obey that law, even if we suppose, contra political philosophy, he had a general duty to obey the British government.

C. The argument above commits an elementary fallacy. It equivocates between two sets of claims, 1 and 2:

  1. You may break an unjust law. You may break a law you know to be illegitimate and non-authoritative.
  2. You may break any law you believe to be unjust. You may break any law you believe to be illegitimate and non-authoritative.

Dale complains that we can’t just have people break any law they dislike. Even if she’s right about that, that’s not what anyone defending Snowden is saying. Snowden should be pardoned because he was correct, not because he believed himself to be correct. Society might well break down if everyone broke any law he disagreed with. But society would probably be improve if people rejected, ignored, and broke laws they correctly believe are unjust.

D. Regarding punishment: Socrates submitted to Athens because he subscribed to a mistaken theory of government authority: tacit consent theory. If Plato’s account is to be believed, then Socrates might have decided to live had he only taken the first two weeks of a contemporary introduction to political philosophy course. Same with Cicero–he also subscribed to a theory of government authority that has been thoroughly demolished. Thoreau and King allowed themselves to go to jail because they believed that this was useful in promoting their cause, not because they believed the government had any right to put them in jail. They had no duty to the government to submit. (King thought he had a duty to others to submit only because submission was necessary to help his cause.)

Consider Turing again. The government tells Turing he can’t have gay sex. When the government does that, it does something deeply evil and unjust. It then tells Turing he can either be chemically castrated or just agree not to have gay sex anymore. Is Turing above the law? Of course he is. My excrement is above that law. When the government tells Turing he can’t have sex, it has already violated his rights. To punish him further violates his rights. Turing can just say,  ”When the rest of you pass an unjust law, you have wronged me. When you enforce that law against me, you further wrong me. I should feel free to disobey if I can get away with it.”

See also my old post on why promising to obey orders doesn’t excuse you or enable you to commit injustice.

Update: Check out this article, “Contempt of Cop”.

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  • Les Kyle Nearhood

    I do not agree with A at all. I do agree with B . Snowden is not a hero because of the way he acted after his revelations. But I am glad he did make them.

    • adrianratnapala

      Yes. Or rather I don’t *understand* A — it simply references a body of philosophy without explaining it. JB might be right about government authority, but I am pretty sure that the rule of law is a good thing. This means we must not lightly condone lawbreaking.

      B is valid — governments can’t just make any law they like. Moreover, the Americangovernment is bound by a written constitution that explicitly protects free speech. A secrecy law that says officials can suppress anything at all is an obvious 1st Amendment violation. Details of nefarious activities by government agents — i.e. things like Snowden’s leaks — are A-grade textbook examples of protected free speech.

  • Jameson Graber

    So if I follow you, it’s wrong to side with Socrates and at the same time believe he ought to swallow his poison.

    • Aeon Skoble

      Yes, he was wrong to argue that he had an obligation to drink the hemlock. That doesn’t mean he was wrong to drink it. He advances several other reasons, many of which are perfectly fine. But the argument that it’s always unjust to go against the laws is not only wrong on its face, Socrates himself just got done explaining why it’s wrong (in the Apology).

      • Farstrider

        Who said it was always “unjust”? The question is, is it always illegal? Yes, yes it is.

        • Aeon Skoble

          Your point is that it’s illegal to violate laws? That’s a tautology. But it can get interesting if there’s one law that says do x, and another that says don’t do x. Snowden took an oath to defend the constitution. Keeping that oath (i.e., not violating the law) may entail whistleblowing, even if that seems to violate some other law (don’t talk about your work). Which trumps? Defending the constitution.

  • Rachel

    I wish that it was the consensus view that authority is bogus. It is less so the consensus view and more just the correct view. The vast majority of political philosophers, or academics in general, are unquestioning state lovers who apologize on behalf of the state at every turn, and who assume the authority of the state because they’ve never been critical enough to question it. Indeed, they recoil and criticize everyone who dares challenge their childhood dogma. It is sad how hard they try to find justifications for it.

    • Jason Brennan

      Philosophers are statists, but they tend to believe the state is legitimate, but not authoritative. That is, we should have a strong social democracy, but there is no duty to obey the law because it’s the law.

      • Chris Pacia

        I don’t see how that is reconciled. Someone doesn’t have a duty to obey a law, but it is morally legitimate to harmfully coerce someone into obeying the law?

        Like Rachel above, I’m under the impression most philosophers believe in political authority for various reasons.

        • Phil

          Brennan said that they tend to believe that there is no duty to obey the law BECAUSE it’s the law. There may be a duty to obey it for other reasons, perhaps on deontological grounds or consequentialist grounds. On deontological grounds, one could have a duty to make compromises when living in a cooperative environment, and to make and receive concessions where it is fair to do so. On consequentialist grounds, because it may promote the general welfare.

          If you examine your own moral views, you may find that you believe it is legitimate to harmfully coerce someone into obeying property rules. You may think that a private defense agency has the right to use violence to stop some individuals from using some natural resource, if some other individual claims it exclusively for himself.

          You can believe that political philosophers accept the legitimacy of the state for personal gain. If so, write up a paper with a sound argument about why the state is illegitimate and submit it to some academic journal. It’s easy to spot a valid argument, and if you make empirical claims, it’s easy to check your sources. For your moral premises, my guess is, in the end, it would all come down to your moral intuitions. Then we have to ask, why are your intuitions more reliable than those of political philosophers?

    • Phil

      Have you ever considered that these political philosophers have been far more critical than you and have good reasons to believe the state is legitimate? Have you ever considered that you are just too bad at philosophy to discriminate between good and bad arguments? I bet if I asked you why you’re an anti-statist, I’d get a tirade about how taxation is theft and how governments violate natural rights, or some such nonsense. Sure, the creationists could be right and the majority of biologists wrong, but I find it unlikely. Likewise, the small number of anti-statists could be right and the vast number of political philosophers wrong, but again, I find it unlikely.

      • Libertymike

        Have you considered the possibility that the universe of effective argumentation is not cabined by what philosophy geeks deem it to be?

        • Phil

          My last sentence above demonstrates that I have.

          • Libertymike

            Have you considered the possibility that the political philosophers of whom you write do not have good reasons to believe that the state is legitimate?

          • Phil

            Sure, but they also have good reasons to present arguments about why the state is illegitimate. Then their peers will respond with objections, and they will reply to the objections. This is how the method of philosophy works. People want to distinguish themselves by making sound arguments. Just like biologists have good reasons to present evidence that goes against evolution. Rachel’s assertion above denigrating philosophers is the equivalent of the creationists assertion denigrating scientists: “they just want to sin.” An equally cheap shot could be leveled at her, that she doesn’t have a good argument against the state but simply doesn’t want to pay her taxes.

    • Phil

      Have you ever considered that these political philosophers have been far more critical than you and have good reasons to believe the state is legitimate? Have you ever considered that you are just too bad at philosophy to discriminate between good and bad arguments? I bet if I asked you why you’re an anti-statist, I’d get a tirade about how taxation is theft and how governments violate natural rights, or some such nonsense. Sure, the creationists could be right and the majority of biologists wrong, but I find it unlikely. Likewise, the small number of anti-statists could be right and the vast number of political philosophers wrong, but again, I find it unlikely.

    • Farstrider

      “more just the correct view”

      According to you?

      These are not questions that have objective answers that all people agree to, obviously. There is no reason for anyone to believe that you have secret knowledge on the correctness of this view that others do not have.

  • Sarah Skwire

    I’m glad you wrote this, Jason, as it saves me from needing to post on it. the only thing you didn’t include that I’d thought of noting is that it is very difficult for me to be persuaded that the honorable thing for Snowden to do is to accept the just and legal punishment for his actions when we can be reasonably confident that–whatever form his punishment would take–it is highly unlikely to be either terrifically just or particularly legal.

    • adrianratnapala

      Why would it not be honourable if he chooses matyr himself by returning to the USA — even if the punishment he gets is not just or even legal. I agree though that honour does not *demand* that he return to face this punishment.

  • Aeon Skoble

    Exactly right. I spent way too long arguing against this in FB comments yesterday.

  • j r

    Poor thoughts indeed. By Dale’s logic, Harriet Tubman was one of the 19th century’s greatest larcenists, or at the very least a fence.

    The claim that nobody is above the law is rhetorically interesting, but it just doesn’t carry any weight. The status of the law is directly proportional to the morality of the law and the extent to which we all have a say in its adoption and enforcement. Secret laws that nobody knows about and no one can offer comment on, by their very definition, don’t have much authority.

    • Farstrider

      If people are defined as “property” and Tubman “stole” them, then she is in fact a “larcenist.” That is simple logic.
      What you are really saying is that she violated an unjust to achieve a greater good. And I agree with you. But make that point, rather than pretending what she did was legal. It plainly was not.

      • j r

        If people are defined as “property”…

        You should have stopped writing right then.

        In what world does the authority of a plainly unjust law supersede the authority of each individual person not to be exploited for free labor?

        Greater good implies that there is some sort of legitimate rights competition at play. In the Tubman case there is obviously not one. In the Snowden case, it’s pretty hard to find one either. I suppose that you could argue that the U.S. government’s secret spying program is about safeguarding the rights of American citizens from enemies, but could you really say that with a straight face?

        • Farstrider

          There are two questions: (a) is the conduct prohibited by law and (b) ought the conduct be prohibited by law. We obviously agree on b in both cases, but this post — and apparently you — think that is the same as a. They are not the same.
          There is also this notion that doing the right thing should be easy and free. I’m not sure where that comes from, but the fact that something is easy and free should make you more suspicious about its morality, not less.

          • j r

            I’m going to admit that I honestly don’t know what you’re talking about. Did Harriett Tubman break the law? Yes. Does it make any sense to call Harriett Tubman a larcenist? No.

            I believe the phrase is “hindsight is 20/20.” You can choose to point out the fact that Tubman was breaking the law at the time, but standing here in 2014 calling her a larcenist is… well, it’s absurd. We know that slave owners and the laws that protected them were wrong as much as we know the earth is round. To act as if there is any moral ambiguity here, you make yourself into one of these mythical people standing on the shore of southern Spain warning Columbus that he’s going to sail off the edge of the earth.

            In regards to Snowden, we don’t have 20/20 vision. It is indeed morally ambiguous, but Dale claims that it isn’t. She claims that Snowden is a criminal who ought to be punished for the breeches of his employment contract and whatever security laws he violated. Snowden is certainly no Tubman, but he ain’t Aldrich Ames either. He is a whistle blower and we are supposed to have protections for such people.

          • Farstrider

            Very much wrong. Calling someone a criminal is not the same thing as calling them or their conduct immoral, and it has nothing to do with they should be admired or not. Tubman is to be praised because she violated the law on principle. She should therefore (and I think would) wear the badge of thief with pride. She broke the law to act morally.

            She did the right thing, even though it was the illegal thing, knowing the punishment that might result. Where I come from, that is called “the courage of your convictions.”
            Why do you want to take that away from her, by twisting every day language to pretend that plainly illegal conduct was actually legal?

            So in answer to your question, “does it make any sense to call Harriett Tubman a larcenist?” Yes, but only if words mean something.

            I personally admire Snowden BECAUSE he violated the law, BECAUSE he knowingly committed a crime and bore the risks that violation entailed. Why would you take that away from him?

          • Theresa Klein

            So you think it would have been just to punish Harriet Tubman because she broke the law? Do you think she ought to have been prosecuted for larceny?

          • Farstrider

            No, but it would have been LEGAL.

          • Theresa Klein

            Nobody is saying prosecuting Snowden would be ILLEGAL. We’re saying we shouldn’t do it, morally.

          • Farstrider

            I’m not convinced that is what other commentators said. I detected an effort to redefine terms so that one could say Snowden was not a criminal and therefore could not be punished. I took issue with that because words have meaning and that meaning matters.
            But you and I, at least, are in thunderous agreement on your last point.

          • j r

            You misread.

          • Farstrider

            Somehow my prior post got lost, so I’ll try again.

            You seem to be suggesting that there are “moral people” and then there are “criminals,” and that the two are somehow mutually exclusive. They plainly are not. Tubman is both moral and a criminal — because the only requirement of being a criminal is that you broke a criminal law. Indeed, Tubman should (and I think) would wear that badge with pride. She violated a law for the sake of a moral principal, and risked the consequences of doing so. Where I come from, that is called the “courage of one’s convictions.” Why would you take that away from her?

            I admire Snowden BECAUSE he violated the law, BECAUSE he risked criminal sanction, for a higher purpose. None of those facts make his conduct legal, however. Morality and legality are two different questions with two different answers. I should think you can figure out why.

            In short, “does it make any sense to call Harriett Tubman a [criminal]?” Yes, but only if words have meaning.

  • Barry Soetoro

    I mean, Helen Dale literally is only famous because she pen-wrote a book a one-hit-wonder novel which she pretended was autobiographical and of a different race than she is, so I’m not really sure what everyone’s expecting here.

    • Sarah Skwire

      Thank you for the fine demonstration of how dumb ad hominem attacks make you sound.

      • Spank

        to be fair, I’m not sure this is ad hominem argument (i.e., she’s wrong because she’s dumb) so much as it is advice to lower one’s expectations and to not get too worked-up. Prof. Brennan wouldn’t waste his time writing posts against 7-year-olds, would he?

        • DavidRHenderson

          Maybe, Spank, but this 63-year old appreciated it.

      • barrysoetoro

        Nope, not an ad hominem argument, thanks to Spank for explaining why. Just stating facts about Helen Dale, look her up on Wikipedia. Nice try though.

  • zjohn

    Yes. Well said.

    There two general arguments I see against Snowden:

    1. He broke “The Law”. That’s it. Never mind his reasons. They don’t “legally” matter.

    This is the one you tackle here.

    2. He put Americans in danger by leaking information. He’s treasonous.

    This argument actually annoys me more because I find it emotional, sensationalized and hard to argue against beyond demanding proof…which never gets anywhere. This argument is the one that is far more sinister because it brings out the vigilante in people. It’s dangerous. It empowers the state to go further and further.

    • Les Kyle Nearhood

      My only argument against him is that he was involved in what amounts to civil disobedience but then did not stick around and bring it through the court systems so that there might be some actual changes in the law. He chickened out and fled to Putin who is hardly the paragon of liberty.

      • Andrew F.

        Chicken is not a word I normally associate with Edward Snowden’s story. I suppose it may have been braver yet if he stayed to face prosecution, but I am not convinced it would have been useful. As Jason pointed out, submitting to jail furthered the goals of MLK’s and Thoreau’s civil disobedience (or at least they believed it did). Is there any other principle that would justify allowing yourself to be imprisoned for breaking an unjust law?

        Here’s how I see the argument for whether Snowden’s staying would or would not be useful in pushing reform. On the one hand, seeking refuge in Putin’s Russia may be mistaken for an endorsement of Putin’s Russian, and Snowden therefore mistaken for a hypocrite. Having him here on the block may have a benefit of keeping media attention on his case. On the other hand, Snowden being on the other side of the world and temporarily safe from imprisonment may have helped focus attention on the substance of the leaks rather than the man who leaked them. That’s a hard call, and I won’t fault Snowden for leaving the country.

      • Theresa Klein

        Well, there are court cases against the law working their way through the courts, which he enabled. So you can’t totally say that by evading the courts, he prevented the court system from ruling on the law.

      • Mark Rothschild

        Snowden did not commit civil disobedience (whatever that is).

        He exposed crimes against the Constitution. He did it in the only way that he could. If he had gone to a US senator or congress critter with his information he would have been immediately arrested. He left the country and bravo for it.

  • stevenjohnson2

    The excerpt advances two arguments. First, it appeals to authority, specifically, Friedrich Hayek’s The Road to Serfdom. Second, it advances a slippery slope argument against allowing an exemption to Snowden on grounds that Snowden was morally justified. Brennan’s points don’t address the actual excerpt but his reconstruction of its underlying principles.

    Skipping over whether Brennan’s A,B,C&D actually apply to Hayek (who I thought was still highly esteemed by many libertarians) or whether Brennan accepts slippery slope arguments, I’m not sure the refutation advanced is correct.

    A assumes that law not somehow must be morally justified from an individualist perspective, ignoring the role of force in natural right, much less law. In this case, it assumes that the US government has no moral right to spy on enemies foreign and domestic, without troubling to make an argument against alleged necessity.

    B assumes that individual laws must be morally justified to an individual, rather than justified by the process of legislation and proper law enforcement. In this case, In this case, it assumes that the passage of the legislation is irrelevant to the moral justification, without troubling to make an argument against the view that Snowden’s trial is precisely how his individual choice to defy the law must be justified.

    C imagines an equivocation in Dale’s argument that is invisible in the excerpt. The real oddity of course is that Dale seems to be ignorant of the fact that she is arguing against the pardoning power. It is already law that people can be let off for breaking crimes, just because. And people can annul an unjust law by making it unenforceable. Snowden also can be justified by jury nullification.

    D agrees that Cicero was accepting authority rather than being too tired to run. If I remember correctly Cicero had also written “enim inter arma, silent leges,” I’m not sure that he agreed that legal, much less moral, authority was the issue.

    I believe Snowden is a hero, no doubt imperfect, as all heroes are.) It seems to me that Dale’s real argument against Snowden is ultimately a Hobbesian sovereignty one. But I disagree that the natural rights of individuals are extinguished by the delegation of sovereignty. In the Snowden case, the US government is a regime that we desperately need to change. Snowden’s actions against this regime are justified by its rottennes. Snowden cannot get a fair trial from such a regime. If he chooses to accept a pardon in exchange for stopping further revelations? As I say, no hero is perfect.

  • http://badoutcomes.blogspot.com/ Robert H.

    He mixes them up, but isn’t the relevant question for his argument not whether the state has authority (ie, should Snowden have obeyed the law), but whether the state is legitimate (ie, can and should the state punish Snowden and is doing so ethical)? He’s not saying “Snowden had a duty it not break the law,” he’s saying “we can’t have everyone running around breaking the law so punish those who do.

    I also take the argument to be epistemic — we can’t know the proper role of the state, but the consensus opinion of a liberal democracy is more likely to be right then we are. Breaking the law and then submitting to punishment gets the best of both those worlds — you get to do what you think is right in a way the polity has agreed on.

    The blurb you quoted doesn’t mention it, but gong to court is also, in a democracy with rights, often the only way to excercise thiose rights. If as Snowden could win a court victory that would free himself and advance first amendment or statutory protection for whistleblowers (not likely, but possible), does he have a duty to try to do so?

    Lastly, I’d just say that if the state is legitimate and has a policing and military defense function, it needs to keep *some* secrets. I’m not sure you’ve drawn the line any clearer than the quote you disagree with.

  • http://badoutcomes.blogspot.com/ Robert H.

    Just had a thought — why do you have to justify state authority to justify a duty to obey the law? The law predates and is more universal than the state (ie tribal customary law), as is the norm that the law should be obeyed.

    Most people throughout history have acted like the law has inherent authority regardless of whether it is produced or enforced by a state (if they didn’t, customary law wouldn’t work, and for most of history most law was customary), so why would Snowden’s duty hinge on the authority of the law’s source? Why can’t we just say that obeying the law of your time and place is a basic and useful impulse we all have rising to the point of a duty, like obeying your parents or oath keeping, but that at times countervailing duties or consequential considerations can overwhelm the duty to obey the law? That seems to accord with what people actually think and do. Or has political science also proven they you don’t have a duty to obey your parents?

    I mean, people fundamentally aspire to not be criminals. People look down on criminals. Only when society has really intense problems does that stop being true. Maybe that’s because everyone everywhere all the time misunderstood political science; maybe it’s because law abidingness is, like greed or filial piety or what have you, one of the basics of human nature a political structure has to work with. If it is the latter, discussing the scope of and how to manage a duty to obey the law would seem more fruitful than “nope no duty go nuts just don’t get caught or do anything otherwise unethical.”

    • Jason Brennan

      Distinguish three things:
      1. Duty to abide by useful and functional social conventions.
      2. Duty to do what’s morally right.
      3. Duty to obey the government.

      1 and 2 don’t cover Snowden, so the only thing that can explain why he’d have a duty to turn himself in and face the heat is 3. But 3 doesn’t obtain here either.

      • http://badoutcomes.blogspot.com/ Robert H.

        “The law” is bigger than the sum of those three things — a customary law can have nothing to do with the government or what is morally right. It is also more than just a useful and functional social convention, since it is widely considered to be a binding law by the relevant actors in a way a mere social norm is not (lawyers call that opinio juris; it’s a defining requirement of customary law).

        As such, you can’t disaggregate the question “Is there a duty to obey the law or face it’s punishments” into the three questions you just asked.

        Now at a certain level of specificity you could just ask those questions — if you ask should he have obeyed *this* law, perhaps — but at that point you’re abandoning any sort of broader moral principals for case-by-case reasoning in which case, you know, just be a consequentialist. Broadly utilitarian consequentialism is awesome.

        • http://badoutcomes.blogspot.com/ Robert H.

          Or to be more succinct, the law might have inherent authority simply because it is recognized as the law. It does not necessarily have to borrow the authority of the state, community, jirga, or whoever else is enforcing it; *they* can borrow *its* authority.

          I’m not convinced that’s right, but there’s such a consensus among scholars and lawyers that customary law gets it’s authority from people recognizing it as law that you’d think you’d have to deal with the same argument when talking about the authority of statutory or case law.

          And whether or not it’s right, it is how people behave.

          • Theresa Klein

            Do people really obey the law out of respect for the law for it’s own sake, or because they recognize that the law is backed by the authority of popular consensus? So even if they disagree with it, they know it will be enforced.

            When laws are not backed by popular consensus do people generally respect them anyway? How many unjust laws do you know of that are widely obeyed in spite of a popular consensus that they are unjust?

          • http://badoutcomes.blogspot.com/ Robert H.

            That’s relatively common. I know plenty of people who don’t think smoking pot is immoral, don’t think there is a popular consensus against it, don’t think the state would punish them for smoking pot, and might enjoy smoking pot. Their main hang up is that it’s illegal, they see it more as a crime than a regulatory violation, and they don’t want to break the law or be known as criminals.

            To pick another example, in later imperial Roman law most people thought there was too much binding writing from the jurists (it was hard to keep track of it all) and that some of it was stupid. That’s the whole reason Justianian commissioned the digest: to winnow and refine all that crap. But prior to Justinian’s legal reforms, it appears everyone felt bound to try to enforce and live by the tangled writings of dozens of centuries dead jurists.

            I could keep going, but that’s fairly common. Normally if there is a big legal reform, just before the reform, 1. Everyone thought the law was stupid and/or unjust, 2. Everyone was obeying it with a pretty high frequency, not always out of fear of punishment and clearly not, where the law wasn’t promulgated or enforced by the state, out of respect for the state (again, see customary law. And yes, communities do sometimes think their customary laws are dumb or unjust but keep enforcing them anyway).

  • Taylor

    Two questions…

    1) From Friday’s “Last Man Standing” :)

    Cop talking to Tim Allen: Ya know how everyone hates their boss and everyone hates the govt? Imagine if the govt WAS your boss!

    Whether the govt has the right to enforce unjust laws against citizens, doesn’t the govt IN THIS CASE possibly have the right to enforce their employment contract voluntarily entered into? And when your boss is the govt, don’t those enforcement mechanisms clearly include all those things which the govt claims they may do? Seems like there may have been informed, explicit, consent when you agreed to your paycheck.

    2) I hear that Socrates/Cicero were wrong regularly. But the authority they were submitting to was of a specific local form. I think it is possible that their arguments are stronger (i.e. I tacitly consented because I lived here) when it is relatively easy to leave. Locke makes the same argument about Englishmen becoming Frenchmen and vice versa. Thus is it possible that they don’t need to be dismissed outright but instead understand that close local decision making is required for their arguments to hold? It really seems to be a different thing to say a small, tight, community of friends, family and neighbors may pronounce these judgments over you, than to extrapolate that into a broad endorsement of govt at any distance.

  • Anthony Gregory

    Fantastic!!

  • Farstrider

    First, states obviously have actual authority, because they have all the guns and prisons. Maybe you mean “moral authority” or “proper authority,” but that is a different issue altogether. That dispenses with A.

    Second, the governments in this country do not have authority to do whatever they please – their authority is delimited by, for example, the Fourth Amendment. Indeed, the only reason we need to have things like the Fourth Amendment is because everyone knows states have authority (in other words, that A is false) and that authority can be abused. Notably here there is no limit on the government’s ability to prohibit disclosure of certain information or on its ability to punish people who disclose it. That dispenses with B.

    Third, there is no meaningful difference between a law you think is unjust and a law that is unjust, to a person standing in your shoes. No one has perfect knowledge of such things, and it is doubtful that there even is a “right” answer all the time — reasonable minds can differ as to what is or is not an unjust law. That dispenses with C.

    At best your argument is that you don’t think the government should punish Snowden because you disagree with the laws he violated. Unfortunately, there is no reason to believe you have or should have a veto in that regard.

  • DavidRHenderson

    Very beautiful article, Jason.

  • Theresa Klein

    Society might well break down if everyone broke any law he disagreed with. But society would probably be improve if people rejected, ignored, and broke laws they correctly believe are unjust.

    I think a better way to say this is that if society decides that the perpetrator was correct in his assessment of the law, then it is within society’s perogative not to punish him. We don’t punish people just because they break the law, we punish them because WE agree that the law in question is a just and good law.

    To say that society should punish people for breaking unjust laws, is to say that society should be neutral with respect to the laws are just or not. Which is nonsensical. Of course, society gets to control what the laws ought to be and if they are unjust, we get to stop enforcing them, and indeed, repeal them.

    • Farstrider

      “We don’t punish people just because they break the law, we punish them because WE agree that the law in question is a just and good law.”

      This is prescriptive, not descriptive. This is actually not how law works, outside the vanishingly rare instances of jury nullification, although you may wish it to be.

      • Theresa Klein

        This is a philosophy journal, not a law journal. If the law says the law must always be enforced even when everyone thinks it’s wrong and agrees that the law should be changed, then that’s like saying society should never repeal unjust laws, because they’re the law!

        • Farstrider

          But you keep talking, incorrectly, about how the law is, not how it ought to be. Worse, your errors in that regard undercut your arguments.

          The law DOES say that it must be enforced even if everyone thinks its wrong and should be changed, UNTIL it is repealed. In other words, repeal is the sole mechanism for dealing with an unjust law. But until it is repealed, it remains the law.

          (Again, I’m leaving out things like jury nullification, which is pretty rare, prosecutorial discretion, which is usually abused, and judicial review, which is really just another aspect of “law”.)

          • Theresa Klein

            The law says repeal is the sole mechanism for dealing with an unjust law.
            But we get to make the laws, so we get to say what mechanisms for dealing with unjust laws are. And if we say that we get to deal with unjust laws by not enforcing them, then we do. We rule the law. It does not rule us. Just because the law says something doesn’t mean that it IS.
            The law is not truth. We are.

          • Farstrider

            I disagree. The law is a system by which competing interests are sorted out. Part of that system involves determining how it is changed or modified over time.
            No one has the singular right to opt out of this system. If they did, it wouldn’t be the law, it would be advice.

          • Theresa Klein

            We’re not talking about a “singular right” to “opt out”. We’re talking about the right of the general polity to NOT ENFORCE the laws when it AGREES with the individual in question that the law in question is unjust.

          • Farstrider

            How do we know the general polity feels that way? Do we take a poll or hold an election for every criminal charge? No. The way the general polity expresses disagreement with laws is to repeal them.

          • Theresa Klein

            In general I agree that we ought to repeal laws if we’re not going to enforce them. I just don’t think it has to be a prerequisite for not enforcing them.

            Usually a particular case that seems very unjust is what alerts us to the fact that the laws ought to be changed. There’s no good reason to go ahead and enforce it anyway, and say “so sorry, we didn’t realize this was unjust until after we were forced to punish you!”

            Also, we have clemency and pardons for a reason.

          • Farstrider

            If the argument was for clemency, or pardon, I think we’d be on the same page.

  • MARK_D_FRIEDMAN

    Ms. Dale does not mention “political authority” even once in her essay, but instead specifically relies on respect for the rule of law. So, I don’t know why Jason believes she is arguing from the former. If Snowden has an obligation to turn himself in, it stems not from the fact that our state has political authority, but because he owes this to his fellow citizens.

    In a state that roughly adheres to the rule of law (yes, I know, its a big if, but compared to North Korea?), it might be the case that is simply inconsistent with its maintenance if law-breakers act as judges in their own case. Especially, when their actions potentially harm their fellows. Given that even high-minded, sincere people may be mistaken in their judgments, it might be that a person like Snowden is morally obligated to his fellow citizens to allow them to judge, rather than take the matter into his own hands. The alternative might be too dangerous.

    I am not sure myself about this, but it is a much better argument than what Jason attributes to Dale. Why invent an inferior argument in order to easily refute it?

    • adrianratnapala

      I think you have done a good job of demolishing JB’s argument A, but argument B is still intact — it amounts to saying that it was unconstitutional for the government to classify Snowden’s documents as secret.

      Should Snowden should submit his legal argument to the US justice system in person? If he does so, he will immediately be attacked by prosecutors who will throw everything they can at him, and intimidate him into a plea bargain. If he doesn’t buckle, he is still at the mercy of unpredictable judges.

      Mostly rule of law happens because we voluntarily obey the law. And Snowden would argue that he was in fact obeying it — as he doesn’t have to obey unconstitutional secrecy orders. Rule of law doesn’t mean we voluntarily submit to prosecution whenever someone thinks we disobeyed it. The 5th amendment of the US constitution even recognises this (indirectly).

      • MARK_D_FRIEDMAN

        If the government’s actions are unconstitutional, they can be challenged all the way up to the Supreme Court, and in fact this is now happening. Of course, the S. Ct. might get it wrong, and the government could get away with an illegal policy for some time, at least until Congress takes action. I think it comes down to whether you think the system conforms closely enough to the rule of law. Obviously, I wouldn’t suggest this course of action in a totalitarian regime.

        • adrianratnapala

          No, in the big picture I think the US is pretty good at conforming to the rule of law — though hardly perfect. Moreover, if it’s police catch you, then you have no choice but to submit to the judgment of the system; that his how it must be. But the police have not caught Snowden. Does he have a moral duty to turn himself in? Can we reasonably demand this of him if we believe his accusers are probably in the wrong? I say no and no.

          I will go further: rightly or wrongly America gives the executive many ways to let suspects off the hook without trial. Surely Snowden is a better recipient for that kind of thing than Marc Rich (http://en.wikipedia.org/wiki/Marc_Rich).

          • MARK_D_FRIEDMAN

            I usually am not at a loss for opinions, but in this case I am just not confident that I have an adequate grasp of the facts, i.e. what is the exact nature and scope of the spying, what damage was done to the legitimate security interests of the U.S. and so on. So I just don’t know. But, I agree with your second paragraph.

    • Mark Rothschild

      Dale does not really make an argument at all.

      Her statements “We can’t let people off simply because they happen to break the law in ways we like.” and “No one is above the law” are beside the point. Snowden does not elevate himself above the law he elevates the Constitution above the law.

    • Jason Brennan

      A distinction without a difference, as far as I can see. Your interpretation doesn’t make her argument seem any better to me.

      • MARK_D_FRIEDMAN

        Well, I didn’t falsely attribute an argument to you, and secondly, replying with the same degree of argumentative sophistication you just provided, “gee, I think you’re wrong.”

    • Sergio Méndez

      “In a state that roughly adheres to the rule of law (yes, I know, it’s a big if, but compared to North Korea?)”

      We could also say “With a personn like Charles Manson that adheres to the rule of law (yes, I know, it´s a big ig, but compared with Adolph Hitler?)”…

      • MARK_D_FRIEDMAN

        Yep, we could surely say that. It adds absolutely nothing to the conversation, but we sure could say it.

        • Sergio Méndez

          It simply showss that your intend to make the US goverment in a good light (to make it pass as morally aceptable) comparing it with a totalitarian nation as North Korea is absurd. If that adds nothing to the conversation, I guess is your problem,. not mine.

  • Herb

    I wish instead of getting into abstract philosophical arguments about “government authority,” we would talk specifics of the Snowden case.

    Snowden not only violated the law, but he violated the terms of his employment contract. Before they paid him a cent, they explained, “If you steal and leak information, we’ll prosecute you. Do you agree not to leak information?” Finger crossed behind his back, he says, “Yes.”

    So even if he rejected the authority of the government, he agreed to the authority of his employer, who mostly definitely promised prosecution for stealing and leaking secrets.

    If I’m understanding the argument correctly, one who’s heart is pure and good should not be bound by the law or his word. As far as I know, this is a novel interpretation and will take you further in a classroom than in a courtroom.

    • adrianratnapala

      You can’t put him in jail for violating an employment contract. You can sack him, and perhaps take money out of his retirement fund or something.

      The legal argument against Snowden must come down to saying that US officials can suppress information about any topic they like and send to jail those who leak it.

      • Herb

        When you work for an NSA contractor….yes, you go to jail for violating your employment contract, especially if you violated it by leaking classified secrets. I’m pretty sure the contract that Snowden signed outlined all of this, citing the relevant sections of the U.S.C. by number.

        So to review….and hey, maybe I’m just not understanding the argument, but it seems like this:

        A) Governments have no “real” authority, so one is not bound to follow laws they don’t like.
        B) Voluntary contracts also have no “real” authority, and you can violate them at will and without consequence as long as you have a sufficiently virtuous reason.

      • adrianratnapala

        Herb, you are trying to have it both ways.

        You can say that their is a law about classified secrets, which can put people in jail. But laws are subject to the constitution — and the 1st Amendment can’t simply allow arbitrary facts to be suppressed this way. Or else you can say Snowden has contractually agreed to partially waive his free-speech rights when he took a security sensitive job. Well and good, but now we are in the realm of civil contracts — that’s not what is going to put him in jail.

        • Herb

          Alright….I guess we should clarify. Are we talking about how things actually work? Or are we talking about how things SHOULD work if a certain philosophical outlook were more popular?

          What will put Snowden in jail is a conviction for the crimes for which he has been accused.

          Would you accept such a conviction?

    • Mark Rothschild

      His employer (complicit in violating the Constitution) can
      sue Snowden for violating his contract (done in order to protect the
      Constitution). I think that such a suit would (and should) fail.

      • Herb

        If such a suit were filed, I seriously doubt that it would even mention the Constitution, and it would only fail if his employer were not able to demonstrate a contract violation, which, in this case, will not actually be that difficult.

        But that’s neither here nor there as we’re also talking about criminal infractions. So yes, his employer could sue…..and he can also be prosecuted.

        If we were follow the Constitution this is how it would work:

        A person is accused. They offer a defense. It is argued over and deliberated upon, and then later, a ruling is issued. The pro-Snowden side would prefer we skip all that and go straight to the clemency hearing. Do no discovery. Look at no evidence. Consult no statute. Present no case. Offer no defense.

        My question is do we do this for everybody now? Or just for Edward Snowden?

        • Mark Rothschild

          Defending the Constitution is an affirmative defense akin to the affirmative defense of necessity.

          Any discussion of clemency should be in reference to those who broke the law, not those who defend the Constitution.

          • Herb

            If Snowden ever argues in court that he was “defending the Constitution,” he had better be prepared to have answers for all the questions he will be asked on cross-examination.

            Prosecution: “On such and such date, did you log-in to such and such computer and copy such and such files?”

            Snowden: “Yes, but…..”

            Prosecution: “On such and such date, did you deliver classified materials to unauthorized person X?”

            Snowden: “Yes, but…..”

            Prosecution: “Did you flee the country and apply for political asylum in several host nations?”

            Snowden: “Yeah, but….but I’m defending the Constitution.”

            Incredulous jury member (under his breath): “From Russia?”

            It’s going to be rough. If that’s the argument they’re going to go with, the best they’ll get is a lenient sentence. Acquittal? Fuggetaboutit.

            I think that’s why the pro-Snowden camp is not calilng for him to come home. They know it’s unlikely he’ll prevail in court. Sure, some think it’s because the system is corrupt or illegitimate.

            I think others know they have a very weak case.

          • Mark Rothschild

            I have not claimed that a court will allow Edward Snowden to raise an affirmative defense.

            A trial would be only a formality.

            Russia is a responsible international actor these days, as opposed to You-Know-Who.

          • Herb

            Trials are always formalities, and the fairest trial of all is the one in which the guilty is convicted. What makes a trial particularly devastating to Snowden is that he has already published a full confession after having fled the country.

            Snowden doesn’t want a fair trial. He wants a statue to himself.

            And this is surely a joke:

            “Russia is a responsible international actor these days, as opposed to You-Know-Who.”

            It made me laugh anyway. Seriously?

  • jdkolassa

    Thoughts On Liberty is basically a left-libertarian version of the conservatarian blog “Pocketful of Liberty.” They really need to take the best bloggers from both and have them join United Liberty (disclaimer: where I am assistant editor) and let the other two go away. Please.

  • Chmee

    “No intelligent man has any respect for an unjust law. He simply follows the eleventh commandment.” (Thou Shalt Not Get Caught)
    - Robert Heinlein

  • http://thoughtsonliberty.com/ Gina Luttrell

    King’s writings would seem to disagree with you on why he went to jail:

    “I hope you are able to see the distinction I am trying to point out. In
    no sense do I advocate evading or defying the law, as would the rabid
    segregationist. That would lead to anarchy. One who breaks an unjust law
    must do so openly, lovingly, and with a willingness to accept the
    penalty. I submit that an individual who breaks a law that conscience
    tells him is unjust, and who willingly accepts the penalty of
    imprisonment in order to arouse the conscience of the community over its
    injustice, is in reality expressing the highest respect for law.” (Letter from Birmingham Jail) http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

  • BS

    It seems as if Ms. Dale presupposes legal positivism, which, is pretty scary.

  • Jflycn

    Another good example is Schindler. Would some say he/she is unhappy because Schindler was not punished after he broke Nazi’s law?

  • StephenMeansMe

    “Snowden was *correct*…” about what exactly? There wasn’t anything in his leaks that was genuinely illegal (which in itself might be the most problematic, but still). If you mean correct in a moral sense… well, IMO there can be better and worse means to the same end. He chose the worse.

    • John

      Come now. There’s plenty of stuff in those leaks that are illegal, it’s just that…the government doesn’t recognize it as illegal. Because…it appoints the justices that say so.

  • John

    I think the more interesting angle is…..what secrets does the government get to keep from its people? For any reason. I would argue that in times of actual war, you could make a case. But the secrets are kept from Americans. You have to be cleared to even know about them. You can be punished just for divulging them to a citizen. I can see no justification for this. We have a civil court system. The government needs to show actual damages. But for the most part, it is only damaging things that it is illegal for them to do. Or things they should NOT do, like spying on allies.

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