What is the law? Is it simply what’s to be found in legal statutes and government decrees? Or is it something broader, affected by and inseparable from both morality and custom?
This is one of the fundamental debates in philosophy of law. On one side stand the positivists, who propose a narrow view of the law as separate from ethics and other concerns outside of the direct commands of the state. On the other, we have natural rights theorists, who believe the law and morality are inseparable. Indeed, according to natural rights theorists, illegitimate laws aren’t laws at all.
On what grounds may this debate be settled? And what’s really at stake here? Is there more to this than a question of semantics? Legal expert Michael Zigismund guides us through this debate, and applies it to three areas: Nazi law, slavery, and gun ownership. He concludes with a summary of a “third way”, which he argues takes the best of both while avoiding their pitfalls: the Hayekian view of law as emergent practice.
Special thanks to Jackie Blum for the podcast art, and The Tin Box for the theme music.
0:20 – Introduction to Michael Zigismund
2:02 – What is law?
8:53 – Common law v. customary law
11:36 – Positivism v. natural law
16:45 – Is Nazi law law?
19:23 – Separation thesis
22:54 – Application to federalism
26:14 – Where does morality of law come from?…
Here’s a perfectly simple sentence: “You should think for yourself”.
Here’s another fairly straightforward sentence (put aside whether you agree with it or not): Thinking that you should think for yourself is just thinking what the people who think that you should think for yourself think you should think.
How do we get from the first sentence to the second? Well, the second sentence applies a general principle to a specific instance. The general principle is that for any belief x you might hold, holding it amounts to thinking what those who think x think you ought to think.
The second sentence is cute because it sets as the x a sentence that seems to contradict the spirit of the general principle.
An aside: this principle is true if you take out the word “just”. But, then, if you take out the word “just”, it becomes trivial. Keeping the “just”, the principle is obviously false. We sometimes think things for other reasons than agreeing with those who also think them.
What happens if we take the second sentence and take is as the x for a new application of the principle? You get this:
Thinking that thinking that you should think for yourself is just thinking what the people who think that you should think for yourself think you should think, is just thinking what the people who think that thinking that you should think for yourself is just thinking what the people who think that you should think for yourself think you should think, think you should think.…
I think most people ask themselves this from time to time. What if I’d lived in the sixties? What if I’d grown up on the corners of West Baltimore circa 2002? Sometimes it’s not a question, but a wish or fear: wouldn’t want to be that guy. At its best, this kind of identity projection motivates gratitude (“thank God I wasn’t born in a refugee camp”) and empathy (“could’ve happened to me”).
As intuitive as it feels to ask these questions, upon some analysis, they don’t seem to be as meaningful as they initially appear.
I have to disambiguate here. I’m not talking about wondering what it might be like to be, say, Björk or Emma Goldman. There’s nothing particularly troubling about that. I assume there actually is some way that it is like to be Dan Harmond (at least for a given moment, or maybe for an average moment within some time range). There’s nothing odd about wondering what that’s like.
What’s odd is for me to wonder what it’d be like for me to be Larry David (my apologies, but I’m going to keep doing that). After all, when I say “me”, that’s supposed to refer to who I actually am. So, to ask what it’d be like for me to be Rasputin is to ask what it’d be like for William Nava (the person he, in fact, is) to be Rasputin (the person he, in fact, was). But isn’t that silly? Because if William Nava were, say, Ed Wood, he would, among other things, not be William Nava.…