Legimimacy in Law, or, the Invasion of the Cola Commandos

Badiun proposes that, in my novel THE GOLDEN AGE, the Hortators, and the Sophotechs, formed a sort of hidden government, because they employed their considerable powers of persuasion to persuade people. I pointed out that the persuasion was non-coercive, ergo non-governmental. he replied that all governments are ultimately non-coercive, since government rests on the consent of the governed. I accused him of propounding a paradox: that law was the same as non-law. At this point, I need more space to clarify my position:

The beginning of the discussion is here.

"If government is to govern others by using coercion, i.e. strength, its own power must be derived from something else." "the government is based on the consent of the governed."

Ah, but to what, exactly, do the governed consent when they consent?

You propound a pretty paradox: that government must rest on the consent of the governed, since no government rests on force alone to compel the consent of the governed. Since government rests on the voluntary consent of the governed (you argue) ergo all consent of any body has the same moral suasion as obedience to a government: governments that do not rely on force are merely secret governments.

By that logic, the Coca Cola bottling company, General Motors, the National Rifle Association, the Democrat Party, the Roman Catholic Church, Oprah, and the New York Times are secret governments, because they can persuade so many people to adopt certain ideas and behaviors, including the consumption of cola.

Hobbes likewise propounded a paradox: he argued that if you agree to a highwayman to ransom your life, you must carry out the agreement even when the highwayman no longer has a pistol at your head, on the grounds that the agreement was a rational exchange — your life for your money. He went on to argue that even when princes acted like Highwaymen, rebellion was always illogical and immoral.

His argument suffered from the same shortcoming as yours. He drew no distinction between cases where the use of force is legitimate versus illegitimate, just as you draw no distinction between cases where the right to use force is present versus absent.

Might I suggest that the concept of ‘legitimacy’ is fundamental to this discussion?

I suggest that the concept of legitimacy has two elements: the formality of the law, and the justice of the law.

Even a cursory glance at the arrangements of civil society will confirm that the law is coercive, for otherwise it is not law; but what kind of coercion is involved? I submit that it is coercion where the parties involved tacitly or openly hold the coercion to be from a legitimate authority and for a legitimate legal purpose.

Suppose that during wartime the government asks all citizens as a patriotic duty to buy warbonds and to participate in a scrap metal drive. The full moral suasion of the leadership, and all the patriotic sentiments of the public are engaged. One lone man decides not to buy warbonds and not to contribute to the drive.

1. Suppose his neighbors burn his house in retaliation. This would be a case of coercive force on the part of the neighbors, but no one would call it legitimate.

2. Suppose a policeman, in his capacity as an officer of the law, arrests the man. The judge cannot condemn him, and the officer may be liable for punishment for having exceeded his authority. This again is not a legitimate use of force.

3. Suppose the neighbors decide to boycott the man’s business, or to denounce him in public assemblies. This is not a use of force at all, even if the man’s business suffers terribly. If the town grocer refuses to sell him produce, and the town doctor refuses to treat his illnesses, this boycott could lead to his death, and yet it is still not, logically speaking, a use of force.

4. Suppose the legislature passed a bill saying that all citizens must buy warbonds and donate to scrap metal drives, but the formalities of the law are not obeyed–the executive never officially signs the bill into law. The nonconformist man does not buy warbonds and does not participate in the scrap metal drive. A police officer arrests the man. Again, this is not a legitimate use of force, even if it is under the color of law.

In each case, the man who does not abide by this unsigned law is not open to any legal punishment, even if his neighbors disapprove. In his conscience (if his conscience is healthy and normal) he is not a law-breaker, merely a non-conformist.

In each case the man’s conscience does not urge him to buy warbonds as a matter of conforming to the law. Whether or not his conscience pricks him for being a non-conformist, or failing his patriotic duty, or for offending his neighbors, is another matter.

5. Suppose a law, passed by a formally correct process, is so unjust or cruel that it shocks the conscience, and no honest man can bring himself to obey it. Such a law is arguably illegitimate, even if it is formally correct. Suppose again that the whole community rises up as one to oppose the law, and they refuse to obey as one. Now, one man in that crowd is not a non-conformist: he is abiding by the thoughts and actions of all his neighbors. He is a law-breaker. His justification is that the law is illegitimate, that is, no law at all.

From this is can be seen that non-conformity is not the same as illegality, and that force formally used by officers of the law to compel subjects to stay within the bounds of the law is not the same as force using informally or illegitimately to compel conformity to mere custom or public opinion.

You propose that Mr. Obama, acting by himself in his own person, cannot by the strength of his hands force a US taxpayer to pay his taxes, nor can he compel, merely by the terror of his skills as a pugilist, the police and armed forces to carry out his orders. This is a trivial comment, and not related to our discussion. The office of the presidency, by the legitimate forms by which that office holds power, is charged with executing the laws, including gathering the taxes the legislature, in their folly, has passed into law.

It is not that the president scares men into obedience by using force: it is that citizens consent or accede to the use of force against them, when that force is legitimate and lawful.

Let me direct your attention to the difference between a criminal and an enemy soldier. Clearly the criminals, at least at times, submit to the officers of the law for punishment, and they are not in the moral posture of a man who surrenders to an enemy power. Even as they break it, criminals, by and large, still recognize the legitimacy of the law, or else they would not submit to correction — they would either surrender as to an enemy power, or would fight to the death.

Let us also look at the opposite case. Let us suppose that some private body, one which has no authority to use force to carry out its programs, attempted to use force. Suppose, for example, that the Coca Cola bottling company, or the Democrat Party, or the Roman Catholic Church, or the New York Times, attempted to collect money directly from the US taxpayer, and threatened the same with an armed squad of men. Is there any possibility, no matter how small, that the US Taxpayer would regard this use of force as legitimate? Suppose further that the Coca Cola bottling company, or the Democrat Party, or the Roman Catholic Church, or the New York Times send to the taxpayers on official-looking stationary a threatening letter, saying the taxpayers would be audited, or their wages garnished, or bank accounts seized, if any taxpayer were found in non-compliance. What response would the conscience of the taxpayer prompt him to voice? Obedience? Or a gush of laugher?

I suggest that even those who consent to be mulcted by the Cola Company out of fear would not regard the payment as legitimate, and would resist as soon as prudence thought it safe, or honor thought it right.

But suppose again that the Coca Cola bottling company has more Pinkertons, more men under arms, and a larger legal force than the mayor’s office of the local township. The local township sends out a letter, on official stationary, demanding the payment of a local school tax. The only cop is town is Slow Joe, who has never arrested anyone. Like a soldier from the Land of Oz, let us say he has turned his blunderbuss into a flowerpot. The local township has less ability than the Coca Cola bottling company or the New York Times to send armed men to your house. And yet, if you do not pay your taxes to the local township, what would the conscience of an honest man say?

Suppose again that you have no children in the local school, You have no wish to available yourself of the services on which the local tax is paid. Would the conscience of an honest man excuse him from payment of the tax?

Suppose again that you do not drink Coca Cola. You are a Pepsi drinker. Many advertisements urge you to drink Coke. The President himself, the Pope, and Miss America all write you personal letters asking you to drink Coca Cola. Your paramour says she will find another lover you if you do not drink Coke. Would the conscience of an honest man say he has a legal obligation to drink the substance? If he ceased to drink Coke, he is certainly a non-conformist. But is he a law-breaker? Would an honest man think he had the moral right to take up arms to resist the Coke Commandos who came to his door in overwhelming numbers to force him to drink? I am not asking whether an honest man would think it prudent to resort to armed resistance! No one can resist the Coke Commandos! But would he think he had  a moral right to resist, even if that resistance were futile?

"The law cannot be the principle of government, since it is the government which creates laws."

I am not convinced this is the case. An older and more healthy conception ofthe law is that it exists in nature, and that judges discover it, not that judges invent it. The legislature, in this older conception, exists only to make new laws to clarify old laws, to distinguish close cases, or to amend the law where the law contributes to some unjust outcome.