Thursday, January 17, 2013

A Maxim, The Law, And The State Of The Nation

It might well be that the greatest blessing to have recently descended upon these United States is l'affaire Gregory: the exculpation, by prosecutorial discretion alone, of pseudo-journalist and tendentious Washington twit David Gregory for openly and flagrantly breaking a D.C. law that's been used to incarcerate other, entirely blameless persons. That little development has made it painfully, undeniably clear that the rule of law as it's generally understood -- i.e., that the law is above all persons and makes no exceptions for an "elite," however conceived or defined -- no longer applies in our nation.

But that doesn't capture the full, horrific absurdity of the thing. Hearken to David French's assessment:

Of course prosecuting Mr. Gregory would have been sad and — on many levels — absurd, but so is the law under which he would have been prosecuted. In fact, if absurdity were a defense to prosecutions or other adverse legal actions, an enormous swathe of our regulatory state would be swept away.

Can we even speak of the rule of law as a meaningful concept when we combine an explosive regulatory state with near-absolute prosecutorial discretion? As many others have noted, the regulatory state makes ever-more conduct — even benign conduct — unlawful, while absolute discretion grants the prosecutor the right of the King’s pardon. Overlay that legal reality with a stark red/blue divide, and the situation is ripe for the most base forms of political and personal favoritism.

French has pinned one of the most egregious, inexcusable features of our current regime:

The great majority of the "rules" that are imposed on Americans with the force of law are not "laws" in the proper sense.

They're "regulations."
Rules composed by unelected bureaucrats.
Bureaucrats whose names we're forbidden to learn.
Many of whom are issued firearms and wear them daily.
Whose jobs are protected by Civil Service rules any union would envy.

I've searched the Constitution of the United States from end to end and back again, and in only two places does it use the word "regulate:" the Coinage Clause and the Interstate Commerce Clause. That word has given birth to millions of "regulations" with the force of law, by the imposition of which nameless, faceless persons -- persons against whom private citizens have no recourse -- can enforce draconian penalties on defenseless Americans for conduct that harms no man even in its most extended implications.

Either this is absolutely indefensible or I woke up in the wrong universe this morning.

But wait: there's more! The luxuriance of these unlegislated laws "passed" by unelected un-legislators is compounded to an infinite degree by a circumstance for which few of us spare even an occasional thought: It doesn't matter whether we know anything at all about those "laws." At neither the state nor the federal level is any effort is made to inform the private citizenry about their issuance. Even so, we're considered bound by them, subject to their force, and exposed to punishment for violating them.

Oftentimes, we only learn about some such "law" at the moment we violate it. A fortunate few discover their vulnerability "just in the nick of time:" by asking permission to develop a recently purchased plot of land, for example. Never mind that the notion that an American must obsequiously ask permission, like a serf in a feudal realm, to do something that harms no one with an item of his own, honorably acquired property is itself execrable, a clear violation of the natural law of property and the rights pertaining to it. That's merely insult added to injury: a deadly insult atop the mortal injury to the concept of individuals' rights.

In this connection, there's an old maxim that serves our masters in good stead:

Ignorance Of The Law
Is No Excuse

I have no idea how old that maxim is. It originated long before America. Probably it was coined in Europe, when Europe could still be non-sardonically called Christendom. It didn't hang in the air, unsupported and self-justifying. It arose from a fundamental understanding of the proper role of the law: an understanding we of the Twenty-First Century have largely forgotten, but might, in the aftermath of l'affaire Gregory and the indefensible responses of politicos to the Newtown atrocity, at last succeed in recovering.

I asked one of the members of Parliament whether a majority of the House could legitimize murder. He said no. I asked him whether it could sanctify robbery. He thought not. But I could not make him see that if murder and robbery are intrinsically wrong, and not to be made right by the decisions of statesmen, then similarly all actions must be either right or wrong, apart from the authority of the law; and that if the right and wrong of the law are not in harmony with this intrinsic right and wrong, the law itself is criminal. [Herbert Spencer, The Proper Sphere Of Government]
Nevertheless, in the inexplicable universal votings and debatings of these Ages, an idea or rather a dumb presumption to the contrary has gone idly abroad, and at this day, over extensive tracts of the world, poor human beings are to be found, whose practical belief it is that if we "vote" this or that, so this or that will thenceforth be. Practically men have come to imagine that the Laws of this Universe, like the laws of constitutional countries, are decided by voting. It is an idle fancy. The Laws of this Universe, of which if the Laws of England are not an exact transcript, they should passionately study to become such, are fixed by the everlasting congruity of things, and are not fixable or changeable by voting! [Author unknown, cited by Herbert Spencer in The Proper Sphere Of Government]

Herbert Spencer was at one time the most popular writer in the English-speaking world. His uniquely lucid and eloquent expositions upon natural law, the moral-ethical bounds of legislated law, and the overall proper demesne of the State enlightened and uplifted millions of readers -- so much so that in his dissent in Lochner v. New York, Associate Supreme Court Justice Oliver Wendell Holmes felt compelled to write that "[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." (So much for persons who look to Holmes as a champion of freedom.) As we can see from the two citations above, Spencer was unbending on the principle that legislated law that goes beyond the bounds of the natural law is unjust and pointless.

But Spencer was a man of Victorian England, a Christian nation that promulgated a standard of personal conduct and social propriety that became a model for Western Civilization. Yes. that standard was frequently violated by those with the wherewithal to get away with it; nevertheless, no one dared to claim that the standard itself was wrong, or pointless, because some persons chose not to observe it. Even the worst of Victorian sinners insisted upon the sincere inculcation of that standard in the education of his children.

Victorian England was the leading light of European Christendom. Those were the decades when England was the policeman of the oceans and the banker to the world -- when an Englishman's promise was generally deemed as trustworthy as any statement made on Earth.

The courts of Victorian England were world-renowned for probity and justice. No Victorian was permitted to claim that the law ought not to apply to him by virtue of his station, or because he was unaware of it. But the Victorians knew what Spencer had articulated to the rest of the world: to be just, a legislated law must conform to the natural law.

If legislated law conforms straitly to the natural law, then it follows that ignorance of the law really is no excuse: because any adult can deduce the law's requirements from basic moral principles every Christian child is expected to learn by heart:

  • Thou shalt not murder.
  • Thou shalt not steal.
  • Thou shalt not commit adultery.
  • Thou shalt not bear false witness against thy neighbor.
  • Thou shalt not covet.

Murder, as Spencer has told us, is not wrong because it's against the law; it's against the law because it's wrong, and not all the peregrinations of rhetoric can make it right. But equally, property rights are not rights because the law concedes them; the law must concede them because they're written into the laws of the universe as expressed in the nature of Man. No degree of demosthenic expostulation can justify theft, fraud, or any other interference in a man's peaceful use of his honestly acquired property -- including such interferences as politicians are disposed to commit.

No man of our time can know the law to its full extent. Even lawyers disclaim such acquaintance with the law, which is why they specialize, often quite narrowly, in this or that aspect of the law and the practices it demands. Nor are the demands and constraints of the law, or the profusion of regulations imposed upon us with the force of law, deducible from basic moral principles as the Victorians knew them.

How, then, can it be just to penalize a man for not being aware that if his backyard is damp three days out of three hundred sixty-five, it's a federally protected "wetland" with which he is forbidden to interfere? To punish him for not knowing that a raccoon is a legally protected "fur-bearing animal" that he may not kill even at hazard to his family? Or to incarcerate him for bringing a rifle or an ammunition magazine into some state where the laws forbid anyone but its myrmidons to possess those items?

How is the innocent ignorance of a law -- a brutal, unfounded, exception-riddled, discretionarily-applied "law" made by persons who will pay no costs for its effects upon the unaware and innocent others -- not a perfect excuse?

Ironies, as usual, abound. In appreciation of the predictable political responses to the Newtown atrocity, Americans have gone on an armament-buying spree...yet Barack Hussein Obama claims the NRA is to blame for exciting fear. Though they all know full well that no so-called assault rifle fired even one round at Newtown, power-mongering politicians have nevertheless descended with their full fury on such weapons -- defined according to cosmetic rather than functional characteristics! -- in an effort to demonize them and vilify those of us who own them. And though David Gregory was fully aware of the laws of the District of Columbia -- indeed, he and his producers had asked the D.C. police to exempt him from prosecution for using one as a TV prop, and had been refused! -- he went willfully ahead and violated them anyway, and will receive no penalty for doing so, though D.C. has wielded those laws against utterly innocent others who've been bankrupted, imprisoned, or both.

Perhaps Obama is correct.
Perhaps America isn't a Christian nation.
A Christian nation would rise in righteous wrath against a regime that dared perpetrate such injustices.
Indeed, it would have done so long before this.
And it may do so yet.



lelnet said...

"I have no idea how old that maxim is. It originated long before America. Probably it was coined in Europe, when Europe could still be non-sardonically called Christendom."

Close, but no cigar. The maxim dates back to the Roman Republic, which makes it not merely older than the designation of Europe as "Christendom", but literally older than Christianity.

Of course, the main thrust remains correct...the notion that ignorance of the law is no excuse builds upon the assumption (valid when first articulated in Latin, and continuing to be at least mostly valid through most of the centuries since) that ignorance of a law one is in the process of violating can only be of the utterly willful (and hence culpable) variety, rather than genuinely innocent. That is, that the law _makes sense_.

Needless to say, this hasn't been the case in any Western society in my lifetime, or yours either.

furball said...

Well said, Fran!

DakWolf said...

ReBlogged @

Phaedo said...

A fine essay, in my view. Tightly reasoned and well-written. In support of it I recommend Harvey Silverglate's Three Felonies a Day and Philip K. Howard's The Death of Common Sense.