Matters of Law

Many moons ago, as a young lad, I took a quiz that, as I recall, was supposed to test your depth of thinking. One of the questions therein was a form of "the law is the law" reasoning, and it served as my first introduction to what I now know as an "appeal to law" fallacy.

One explanation reads:

someone tries to encourage or defend an action purely because it is legal, or tries to condemn an action as morally reprehensible, purely because it is illegal.

Any clear-headed person who considers this at arm's length should see the problem. Laws are constructs. Some of them serve a good purpose, some do not. What "good" is takes us into the question of morality, its sources, its evolution, and its synthesis with the societies we form. A liberty-based society that elevates the individual will judge "good" differently than a communitarian society that subordinates the individual to the collective, and billions of words have been put to paper on the matter.

Thing is, many, perhaps even most, people lose some clarity when pondering a circumstance that elicits emotional response in them. The saga of Donald Trump is only one of countless examples, but its prominence on the political stage makes it worth talking about.

There is a counterpoint to the appeal-to-law fallacy: the law matters. Whereas the former tells to elevate our judgment above what's written on the page, the latter tells us that we must not ignore what's on the page in our prosecution of acts we judge bad or immoral.

The immortal "Devil's speech" from A Man For All Seasons offers us Paul Scofield declaring,

I'd give the Devil benefit of law, for my own safety's sake.

I recently witnessed an exchange where some (conservative, Trump-disliking) folks opined that they wanted Trump convicted, no matter the nuances of law, because his actions were an offense against goodness and propriety. I number myself among those who deemed his demands that the election results be overturned reprehensible, and felt his January 6th behavior was repugnant, but I refuse to join in a figurative lynch mob that would allow for stretch-past-breaking legal jiujitsu in order to "get that [redacted]!"

Our society is (nominally/aspiringly) based on the primacy of the individual. Our system of laws is supposed to skew heavily against wrongly imposing punishment (better that a hundred guilty go free than one innocent be convicted). We know, however, that those in government are far less beholden to that principle than to their own aspirations, and we have witnessed a grotesque string of lies, deceits, derelictions of principle, and abuses of power across the past eight years or more, based on a "presumed guilty" mindset.

This doesn't make Trump innocent of what he is currently accused. At first glance, there does indeed appear to be a lot of "ham sandwich" in the indictments, but I'll watch the process unfold and reserve final judgment until later.

Where I won't reserve judgment is in those cases where I see people demanding he be convicted apart from the plain letter of the law. If massive creativity and precedent-busting interpretation are required to reach a conviction, then we should default to "miscarriage of justice" conclusions, no matter how Orange-Man-Bad we feel. We need not even go down the path of selective prosecution, double standards, and the like to demand that the law be placed ahead of the conviction. The rights of the individual, whether you deem them inherent, Creator-endowed, or evolutionarily-sourced, stand above the desires of the mob. It is via the law that those rights are upheld, and it must be via the law that they are abridged as punishment for transgressions against others.

We can and should judge the laws that codified slavery as wrong, no matter their enactment. Same for coercive bigotries (aka Jim Crow), same for other infringements of individual rights. We can and should also judge laws that restrict individual liberty as wrong, no matter their enactment. Therein lies the fallaciousness of appeal-to-law, and there is even a mechanism - jury nullification - in our system of jurisprudence for subordinating "wrong" laws to our moral compasses.

However, we must not sidestep the law in seeking to punish, no matter how sure we are of the misdeed, and no matter how offended we are by the mal-doer. If we do, we are no better than the lynch mobs of yore.

Or for the political prosecutions in nations such as the Soviet Union, where the legal machine served the entrenched powers in the guise of serving the collective. For that is the inevitable outcome of putting "the law" above the individual. Human nature being what it is, handing someone the tools with which to prosecute others without restricting him to only the proper use of those tools is a large step down the road to gulags and other political prisons. When the outcome is permitted to sidestep the law, the entrenched powers will inevitably take a society down the totalitarian path.