One consequence of bossing people around in so many aspects of their lives and making them do things they don’t feel are necessary is that they might have an increased desire to break the law since the rules are so arbitrary. If you’re playing a game and somebody is constantly changing the many confusing rules, chances are you’ll get frustrated and consider cheating. This reaction is an important one to analyze, which we’ll do in the next chapter.
For now, let’s review: Natural laws are observable, pre-existing, and equally binding. They protect natural rights, which we possess without any government saying so. And they create negative duties—a requirement only that other people not do things that would violate those rights. Positive laws, on the other hand, are not readily observable, only exist because somebody made them up, and are only binding on those under the supposed authority of the government that enforces them. They create positive rights, which only exist because the government said so. And those create positive duties, forcing people to do things they otherwise wouldn’t have to do.
It’s one thing to determine the source of a law’s authority and to whom it applies. But who gets to decide what those laws are? Today’s governments mostly rely upon legislatures to create, debate, and vote on new laws. Before we discuss the problems with this approach, let’s take a look at another method—one that involves judges determining what the law is.
COMMON LAW
When you think of England, a king or queen comes to mind, right? But the country’s political makeup has undergone a lot of changes from centuries past due to warring kingdoms constantly seeking power over one another. For example, in the year 1066 A.D. when Norman soldiers invaded the island, England was comprised of approximately eight large kingdoms, which were themselves collections of “hundred groups”—privately owned and independently governed landholdings.
Can you imagine trying to control so many different groups of people? The Normans organized counties to administer local laws and established local courts to settle disputes that arose in each community. In the decades that followed, different court systems and judges resolved issues that were brought to them, especially as it pertained to land—who owned what, and where, and under what circumstances.
As later judges and Englishmen were working through disputes, they would turn to the decisions of the past as a guide for what they should do. This is what is called common law—a set of rules governing how people should act, based on the judicial observations and decisions that shaped society in previous years. These decisions were also influenced both by rulings from the king and his court and by local customs.
Some people confuse common law with natural law, but they are distinct. First off, common law only applied to a specific group of people, rather than all people everywhere. As common law was a creation of these particular circumstances in England, it essentially has applied only to countries that were colonized at some point in time by England (or Great Britain, or the United Kingdom). Examples include Wales, Northern Ireland, the United States, Canada, Australia, Kenya, New Zealand, South Africa, India, and many more. If you find yourself in China, you won’t be the beneficiary of common law.
While natural law relies upon observable truths that apply equally to everybody, common law relies on decisions made by a few people in the past. Those outcomes were often favorable towards property rights and individual liberty, but this was not always the case. Many mistakes and bad rulings have been made in the past; common law effectively requires binding yourself to previous decisions, whether they were good or not, merely because these similar disputes were already settled. It’s basically a government of tradition.
Now, one reason why there is confusion between common and natural law is because judges under the common law weren’t considered to be “making” law or “legislating from the bench,” as you’ll sometimes hear in today’s criticisms of the courts. These judges were tasked with looking to the past for guidance, and to the community for moral direction. They aimed not to create law, but to find it.
The printing press helped with this endeavor. As written records were made of the court decisions, it became easier for judges to understand what others had decided in cases that related to the ones they were dealing with. These judicial precedents were considered to have the force of law—not merely because a past judge had made a decision, but because of the principle that similar cases should be similarly decided. Conformity was key.
When the right to a jury was enshrined in the Magna Carta in 1215—after some rebellious barons demanded a recognition of certain rights from the unpopular king—those serving on juries decided cases under the common law, based in part on local custom. Therein lies common law’s weakness.
Think for a moment: what if a community’s custom was to rob food from people named Joshua on Mondays? Or to stone redheads in the town square during a full moon? These odd cultural practices would be wrong according to our understanding of natural law, and yet according to common law, juries would declare those who participated in them to be innocent because it was acceptable according to their customs. But is that a good idea? Should customs have the force of law? Is it okay to do something merely because that thing has been done by others in the past?
One appealing aspect of this system of law is the fact that it is decentralized, meaning that government enforcement is localized and dispersed, rather than concentrated at one level and forced upon everybody. If a dictator makes a decree, that becomes binding upon each person who lives on land the dictator claims to control. But when a judge “found” the law in a particular case, it primarily affected the individuals whose case was being considered in court.
And therein lies another interesting aspect of common law: the judge could only make a decision when he was asked to do so. He wasn’t a dictator, and there was no activism—if there were no disputes to resolve, then the judge had no business to attend to. Think of it like today’s firefighters—unlike the police, who pro-actively roam about the city in search of people doing things that are illegal, firefighters only affect your life if you find yourself in need of their services.
One of the most important aspects of common law was the stability and certainty it provided. Like the path of a river that has been carved into the earth over time through many water droplets passing by, the body of law established through many court decisions striving for uniformity would be difficult to quickly alter to any degree. It takes a long time for just rules to be discovered and consistently applied in a common law system enough to be lawfully binding upon any case with similar circumstances.
Why is that important? Well, imagine you’re a traveling salesman in seventeenth-century England. If each community has different laws about where you can travel, who you can speak to, or what times of day you can approach people in the town square, it will be difficult for you to be successful—especially if those rules can be changed by a simple vote at a town council. You may get out of the business completely, worried that the arbitrary and changing nature of the law makes it difficult to plan a business when you don’t know what tomorrow will bring.
Instead, under a common law system—where the laws are a byproduct of decades or centuries of decisions—you have a more predictable environment in which to build your business. Perhaps throughout England, judges had long decided that you could freely travel in public areas, speak to anyone you wish as long as you weren’t trespassing, and approach anyone in the town square during daylight hours. Knowing of these time-tested decisions and the consistency with which judges ruled on cases that dealt with these issues, you would be able to move forward with certainty, not worried about the rules suddenly changing on you.
As you’ll see in the next section, these are advantages over what we have in today’s legal systems, where top-down, centralized government systems constantly change the “law” and directly interfere in the lives of their citizens.
STATUTORY LAW
&nb
sp; Gideon Tucker was a judge in New York during the mid-nineteenth century. In 1866, he presided over a case dealing with the estate of a man who had died. The man’s widow had been given bad advice by her attorney about his property. The problem, said the judge, “arose from want of diligent watchfulness in respect to legislative changes.” In other words, the widow and her attorney were unaware of how elected officials had changed the laws dealing with estate planning and inheritance—laws that affected her case and the distribution of her late husband’s property.
Being aware of many other instances in which legislators had changed things in ways that negatively affected the people they supposedly represent, Tucker observed: “No man’s life, liberty, or property are safe while the legislature is in session.”22
This ever-present threat to life, liberty, and property is the result of a system of statutory law—when the “law” is nothing more than whatever those in charge of the government say it is. These mandates are written down as “statutes,” or rules of conduct.
Perhaps you already see the problem here. Whereas natural law is unchanging, as it is based on universal truths, and common law is very slow to change, since it relies upon long-held traditions and previously made decisions, statutory law has no such anchor. There is no foundation; it can change over and over and over again. A legislature could pass a law requiring adult drivers to wear seat belts, repeal that law the following year, and then re-enact it the year after that.
This constant flux in the law led James Madison to express some concern about it. In Federalist No. 62, he wrote:
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?23
Read that again if it sounded confusing—it’s powerful. At the dawn of American self-government, Madison was basically saying that it would be pointless if the “law” was a mess—long, complex, constantly changing. For example, who would think that something simple like selling lemonade requires permits, regulatory compliance, and paying a fee? We cannot have confidence in a system that undergoes “such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.” Remember our example of the salesman in a common law system? Predictability allows him to proceed with his business and get on with life. But a statutory system creates constant uncertainty. Like Judge Tucker said, we are threatened every time elected officials are voting. Nobody knows what will happen, and everything is up in the air. Anything is possible, as long as there are enough votes—even making it a crime to own a feather.
That’s the situation Pastor Robert Soto found himself in during a religious ceremony in 2006. Agents from the U.S. Department of Interior infiltrated the ceremonial circle of the Lipan Apache tribe members meeting at a community center in Texas. Soto’s crime? He was in possession of prohibited feathers. Bald eagles and golden eagles are protected by the Migratory Bird Treaty Act and the Eagle Protection Act. Possession of their feathers by unapproved persons can lead to 15 years in federal prison and a $250,000 fine.
Many native tribes use these feathers in their religious practices, as the eagle is considered sacred. And other tribes have approval to use them because they are a federally recognized tribe. Unfortunately for Soto, the Lipan Apaches aren’t recognized, and are therefore prohibited from using the feathers. This is especially silly given that the tribe has been around for more than three centuries—longer than Texas has been a part of the United States of America. Soto’s group is recognized by that state, Spain, and Mexico—but not the federal government, despite petitions asking for the recognition to be made. Their petitions have been denied.24
What was most surprising for Soto was the intrusion into a religious ceremony and setting. Federal agents claimed that because the group had advertised the ceremony in the newspaper, and because money was exchanged at the event, it was not sacred. The government had, in Soto’s mind, “established what I like to call ‘unknown laws,’” allowing them to conveniently “nullify the sacredness of a gathering.”25
Can you see the problem with this legal approach? One day you could be declared a criminal, not because you knew of a longstanding law that you intentionally violated, but because your action was deemed by politicians to be punishable. Or perhaps, like Soto, you might find yourself targeted by government employees who creatively interpret ever-changing rules in their favor. In response to this, you might protest, “I can’t be guilty if I don’t know about the law I broke!”
You’d be wrong.
There’s a long-established legal principle that ignorantia juris non excusat, Latin for “ignorance of the law is no excuse.” Steve Martin once performed a comedy sketch where he suggested telling a judge “I forgot” in response to any criminal prosecution. Caught stealing from another person at gunpoint? Just tell the judge “I forgot armed robbery was illegal,” Martin joked.26
Of course, this is humorous because everybody knows that pointing a gun at somebody or stealing from them is wrong. Nobody can claim that they forgot or weren’t aware that that was against the law because these are examples of natural laws. But in a system of statutory law, how can we keep track of every law that is changed and make sure we are in compliance?
We can’t. At the level of the federal government alone, Congress has been adding an average of 55 new crimes each year.27 There are now around 5,000 federal crimes you can be punished for, and that doesn’t include all the regulations that have criminal penalties, nor all the crimes created at the state and local levels of government.28 Here are just a few examples of federal crimes:
Letting your snowmobile idle for more than 3 minutes in Yellowstone National Park.29
Selling self-pressurized animal food without warning people to not spray it in their eyes.30
Pruning coffee trees during the elfin-woods warbler’s peak breeding season.31
Selling “spaghetti sauce with meat” if it’s less than 6% meat.32
Chasing away a polar bear with your truck.33
Importing moist bamboo into the United States.34
Selling a baby pacifier with leather or chain attached to it.35
Bringing your dog to the post office if it’s not a service dog or there on official business.36
Sometimes federal statutes are based on natural law—for example, establishing a criminal penalty for murder, theft, or kidnapping—but they are more often based on positive laws, like those listed above. Actions that don’t harm another person are punished merely because a group of politicians or bureaucrats decided that they wanted to punish that type of activity.
If this seems rather odd to you, imagine being Samuel Girod. He’s an Amish farmer and a convicted criminal, sentenced to six years in prison in 2017.37 No, he didn’t kill somebody. There was no assault. Nobody had their property stolen. His crime? He had improperly labeled some health products he sold, processed them in a facility that wasn’t registered with the U.S. Food and Drug Administration, and fought the investigation that followed.38
There was no victim of these supposed crimes. The prosecutor could not produce a single witness claiming to have been harmed by Girod in any way. The government had simply decided that what he had done was wrong and punished him for not jumping through arbitrarily established regulatory hoops.
“I do not consent,” Girod told the judge, arguing that the court didn’t have jurisdiction over him—a concept we’ll explore later in the book. Outside the courthouse, supporters gathered in anticipation of the verdict. T.J. Roberts, a college student at a nearby university, held a sign that said, “I don’t ne
ed the FDA to protect me from an Amish farmer.” He commented to a reporter:
I feel what happened here is an example of judges making the law. What the FDA did here is an example of executive overreach in which they are choosing what Americans can put in or on their own bodies. I struggle to find where the victim is in this and where the crime was committed.39
Statutory law allows for—and even invites—such arbitrary crimes, punishing innocent people who have harmed nobody. No underlying morality is needed to decide what is right and wrong. All that’s needed is a majority vote or a simple decree from a king, president, or other executive. And as we’ve seen, it doesn’t really matter whether the “criminal” knew about the law before breaking it. This didn’t matter as much centuries ago, but it does matter today, as one legal commentator pointed out:
The rule that “ignorance of the law is no excuse” was born at a time when there were fewer than a dozen common law felonies, and all those crimes stemmed from and mirrored a commonly shared moral code. Today, the criminal law is a collection of social preferences. Some of them are obvious and reflect common sense notions of wrongfulness, but many reflect only a legislative judgment. It may indeed be a bad idea to ride a manatee for fun, but it is unlikely that anyone would know it was a federal crime—until they read this paper or were prosecuted for it.40
Lessons from a Lemonade Stand Page 3
