Quickies: “Hidden Law”

     Ponder the following from Andrew McCarthy:

     For a number of years in the mid-aughts, we debated the merits vel non of waterboarding. I defended the legality of this interrogation method — in the restrained practice of the CIA, not as cruelly administered historically — mostly based on a strict interpretation of the federal torture statute. It was not an endorsement of the tactic in any particular case. The opposition’s point was well taken that the existence of a legal justification (which they did not concede) would not necessarily make the use of waterboarding good policy. We volleyed ticking-bomb scenarios and slippery slopes back and forth.

     As a lawyer, I instinctively believed we should be able to write rules clarifying the extremely rare circumstances in which aggressive tactics could be used. Critics forcefully countered that the very writing of rules was an authorization that would be stretched to cover non-dire circumstances. Jonah Goldberg reminded us about the “hidden law,” which as applied here, counsels forbidding across the board that which should be forbidden in almost all situations, in the belief that if a dire emergency did arise, good people would act outside the law, do what had to be done, and hope that others would understand and forgive.

     [Emphasis added by FWP]

     In Goldberg’s argument for “hidden law,” which McCarthy, an unusually ethical lawyer, cites humbly and without qualification, lies the starkest, truest wisdom: There are times and cases when we simply have to trust to the judgment of good people.

     In The Machinery of Freedom, David Friedman poses a probing test case:

     A madman is about to open fire on a crowd; if he does so, numerous innocent people will die. The only way to prevent him is to shoot him with a rifle that is within reach of several members of the crowd. The rifle is on the private property of its legitimate owner. He is a well known misanthrope who has publicly stated on numerous occasions that he is opposed to letting anyone use his rifle without his permission, even if it would save hundreds of lives.

     What sane man would refrain from seizing the gun and acting as necessary? Would he have any reason to fear being indicted and tried for theft? What jury on Earth would convict him?

     What McCarthy and Goldberg termed “hidden law” might better be called reality.

     If you make the criminal code sanguinary, juries will fail to convict. If the law is too mild, private vengeance comes in. – Ralph Waldo Emerson, “Compensation”