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?…
There’s a problem about political discourse that’s been bugging me for a while and I think I finally understand what it is.
Ethics presumes agency. It makes no sense to make an ethical demand of an entity that is not an agent. It’s why we don’t demand of the Earth that it stop producing hurricanes. We can wish things were one way or another, but we can only add a “should” if we’re talking about something an agent can make a choice about.
I see no reason to imagine there is such a thing as “collective agency”. Indeed, there are powerful reasons not to believe in agency of any sort, even individual. But individual agency also has a lot going for it, not least of which is the visceral experience of having choice over personal actions. In the case of “collective” actors, there is no corresponding experience of agency that needs to be accounted for. This seems like good enough reason to regard collective agency as a useful fiction.
So when we say, for example, “war is wrong”, whose action are we talking about? War is not an action individuals take, only groups. So it is not subject to ethical evaluation. As something caused by an entity with no moral agency, war is more like a hurricane than like a murder.
Of course, that’s not the end of ethics and war. It’s plausible to argue that individual participation in war is wrong. And it’s important to note that if each moral actor acted ethically, the non-ethical but still very unfortunate events we call wars would no longer happen.…
I’m fond of saying that libertarianism is a branch of the left. My argument is very simply Murray Rothbard’s argument in “Left and Right: The Prospects for Liberty“. I don’t think I’d change or qualify a word of that essay. If you haven’t read it, I couldn’t recommend it more strongly.
Roughly, Rothbard’s argument goes as follows: traditionally, the left has always been the movement positioned against the ruling class. The right was the monarchs and aristocrats, and their goal was maintaining and enriching their own power. The left fought against them. And things could really be as simple as that. But the advent of socialism created a complication: socialists have leftist goals (distributing welfare among the people), but propose to achieve them through rightist means (state power).
Rothbard thus sees socialism as a “middle of the road” movement: left aims, right means. Libertarianism, on the other hand, opposes both the goal of consolidated welfare for a privileged class, and the means of state power. Thus libertarianism should rightly be seen as the modern iteration of the anti-unjust-power tradition of the left.
This is all well and good. I still buy this. This is how I personally think of “libertarianism” and “the left”.
The contemporary “Left”
But I have a confession to make. I know full well that that’s not how most people interpret these words. “Libertarianism” – although it’s burdened by unfortunate associations with racism, corporate privilege, constitutionalism, and other unsavory dispositions (how fair/accurate those associations are is a subject for another post) – I think people more or less see as I do.…