A Pied Piper to Disobey

Monday, May 18, 2015

John Stossel, a commentator I usually find worthwhile, writes approvingly of a foolish proposal he recently encountered in By the People: Rebuilding Liberty Without Permission, by Charles Murray:

... Government has become so oppressive, constantly restricting us with new regulations, that our only hope is for some of us to refuse to cooperate.


Murray argues that citizens and companies should start openly defying all but the most useful regulations, essentially ones that forbid assault, theft and fraud.
And, a few paragraphs later:
What if we all stopped trying? The government can't put everyone in jail. Maybe by disobeying enough stupid laws, we can persuade judges that only rules that prevent clear, real harm to individuals should be enforced: "no harm, no foul."

Law is not always the best indication of what is good behavior. Riots in places such as Ferguson and Baltimore remind us that even cops sometimes behave badly.
There are many things wrong with this proposal, but I will touch on just a couple here.

First, Stossel (if not also Murray) equivocates between law and regulation and, worse, he does not distinguish between proper laws and improper laws. At the same time, Stossel appeals to popular offense against intrusive, improper laws and regulations (while failing to make this important distinction) by implying that their great sin is "uselessness". Pardon me for pointing out that even the worst offenses against liberty in the books are there precisely because somebody, somewhere, argued that they were useful enough to be put on the books, and enough of the electorate was unconcerned enough to allow them to stay there. Rather than bickering about whether some law (out of an overwhelming number) is "useful" or not, we really need a national conversation about what government is for. If we did that, and proponents of the view that a proper government is that which protects individual rights carry the day, there will be great political pressure to get rid of improper laws and regulations on principle. Many people recoil from a debate over first principles because it seems complicated and far removed from reality, but this is really the only way to economically consign entire swaths of law to the dustbin of history, rather than get mired in bickering over countless particulars. (Or, and this is what this proposal really amounts to, just giving up on the whole idea of creating a proper government or achieving one by an orderly process.)

Second, as this proposal stands, who knows what perfectly legitimate set of laws (e.g., private property) some large faction of people might decide is "useless" and begin disobeying wholesale? Stossel's own examples of the dangerous anarchy in Ferguson and Baltimore show us exactly where this proposal can and will go without the kind of conversation and legal process I just described.

This proposal, which I've seen called "civil disobedience", may seem tempting tactically, but it offends morally and strategically. Ayn Rand's thoughts on that topic should indicate why, in light of some of the problems I have just pointed out regarding acting before thinking in the name of securing liberty:
Civil disobedience may be justifiable, in some cases, when and if an individual disobeys a law in order to bring an issue to court, as a test case. Such an action involves respect for legality and a protest directed only at a particular law which the individual seeks an opportunity to prove to be unjust. The same is true of a group of individuals when and if the risks involved are their own.

But there is no justification, in a civilized society, for the kind of mass civil disobedience that involves the violation of the rights of others -- regardless of whether the demonstrators' goal is good or evil. The end does not justify the means. No one's rights can be secured by the violation of the rights of others. Mass disobedience is an assault on the concept of rights: it is a mob's defiance of legality as such.

The forcible occupation of another man's property or the obstruction of a public thoroughfare is so blatant a violation of rights that an attempt to justify it becomes an abrogation of morality. An individual has no right to do a "sit-in" in the home or office of a person he disagrees with -- and he does not acquire such a right by joining a gang. Rights are not a matter of numbers -- and there can be no such thing, in law or in morality, as actions forbidden to an individual, but permitted to a mob.

The only power of a mob, as against an individual, is greater muscular strength -- i.e., plain, brute physical force. The attempt to solve social problems by means of physical force is what a civilized society is established to prevent. The advocates of mass civil disobedience admit that their purpose is intimidation. A society that tolerates intimidation as a means of settling disputes -- the physical intimidation of some men or groups by others -- loses its moral right to exist as a social system, and its collapse does not take long to follow.

Politically, mass civil disobedience is appropriate only as a prelude to civil war -- as the declaration of a total break with a country's political institutions. [bold added]
I must state my disagreement with the idea implicit in this proposal that it is too late to save our country by legal, civilized means, starting with moral suasion. I shudder to imagine what would result from such a "revolution", when even the best of the insurgents -- the ones wielding the supposedly mighty pens -- don't even achieve clarity for themselves regarding the final objective.

-- CAV


Steve D said...

I agree with you about civil disobedience, especially in the case where it involves even the possibility of violating someone’s individual rights. Sit-ins and blocking traffic are not mere civil disobedience; they are criminal acts. A better example of ‘good’ civil disobedience might be the refusal to pay one’s taxes which Ayn Rand agreed was perfectly moral, albeit not necessarily recommended. A national conversation about the proper function of government will be necessary for any real change to occur. This won’t happen though, until objectivism, specifically its ethics of selfishness, penetrates much further into our culture than it has so far. That will take time.

In the meantime, what happens when and if ‘civil disobedience’ becomes necessary to protect either yourself or another from a grievous violation of their rights? Take as an historical example, those people who violated the Fugitive Slave Act? Or the police office ordered to fire on peaceful protesters? At some point it becomes not just a right but a moral imperative to disobey. The real question is when will that red line be crossed? In certain cases, it may already have been crossed. If I was on a jury, I certainly couldn’t in good conscience convict someone of marijuana possession.

BTW, nullification of law, which is a much narrower concept than civil disobedience; both by jury (individual vs. state law) and by state (state vs. federal law) is not only constitutional in the US (since it is not forbidden) but was considered the correct legal remedy by the founding fathers. As a side note, it is actually written into the Canadian constitution. This is not to say that a mere legal remedy could solve today’s problems. Only a philosophical (ethical) paradigm shift can do that. However, as a tactical remedy to prevent individual cases of harm, nullification may be worth considering.

I think Stossel is unclear in the article because his thinking has always been unclear. He makes no differentiation between regulation and law, has only a vague understanding of the proper function of government, etc. The closest he comes to that understanding is his point, ‘no harm, no foul”. He talks about stupid laws and doesn’t want to see anyone get hurt but has no plan how to prevent that from happening. How do you make sure people only disobey improper laws if they don’t know which laws are improper? One good point he makes is about the reciprocal duplicity of the two parties; how they pick and chose the laws they want to disobey.

Realist Theorist said...

Like so many people, Stossel implies that the U.S. government is doing things that its voters do not like. This is a widely accepted notion. From the perspective of any individual voter, the government is doing many things he disagrees with -- often vehemently. However, lots of other voters do agree with the government (not necessarily a majority, but a sizable minority).

If a voter thinks taxes are too high, or drugs should be legal, or abortions should be legal, or that he should be allowed to add a back porch without asking his city's permission, or that environmental regulations are too strict, or that the government should not be running schools, ... he must remind himself that these things exist because a large group of voters want them.

It's convenient to blame all the things we don't like on the concrete entity of "government". Indeed people from opposing parties, with opposing views can both agree that this entity of "government" is doing all the bad things to us... instead of blaming each other.

I suspect there's an element of psychological alienation here, as in: "I cannot change anything about the way the government works, therefore it ain't me, n or any other single voter... we're all powerless pawns."

Anonymous said...

Hi Gus,

Indeed, Indeed.

Speaking of lacking clear distinctions between law and regulation and between proper and improper law, a commenter at another website with classical liberal leanings made the claim that the purpose of gov't is "to make people behave." And that if a majority of the people supported it, then a police state was not too far to go in pursuit of that end. All in the name of law and order, dontcha know.

Hmm, I wonder what that sounds like in German...

c. andrew

Gus Van Horn said...


Many good points here, but I'm lucky just to check in today.

One thing I'll briefly comment on is jury nullification. I'm not sure I agree it's legal here in the U.S., although it sometimes happens. Also, FWIW, I think Objectivist intellectuals may be divided on it. I am undecided myself, but recall someone, possibly Harry Binswanger, calling it anarchic.


Anonymous said...

Interestingly the Supreme Court made the same point about anarchy. However they also conceded that while the jury might not have a right to nullify laws, they had the power to do so. Since the jury’s decision is sacrosanct by law, and they cannot be questioned about it; ever, the government has no means to prevent nullification. They further allowed that it was impossible and unreasonable to force juries to rule against their own conscience.


One point which can be discerned between the lines of that article is that nullification happens rarely which is obviously the way it should be.

I’d like to clarify the point I made about a ‘tactical remedy’. This cannot be the main motivation since that would have an anarchist bent and of course it would not be very effective anyway. The key is not so much to prevent excesses by the government but to allow an individual jurist to act morally and not be forced contribute to the gross violation of another person’s rights. That said, a positive side effect might be to bring the issue to the public’s attention.

Gus Van Horn said...


Thanks for sending that in. Nullification is, as we discussed, then, a de facto power, and not de jure.