A recent editorial in the Wall Street Journal, one that was little more than a “hit piece” on those who think Edward Snowden did the nation a service and a defense of the NSA’s practices, posited an interesting statement: “He did not find or expose anything illegal.”
Yes, Snowden broke the law. That is not in dispute. And, there’s a good possibility that everything the NSA did and is still doing was and is perfectly legal. For the sake of argument, lets assume this to be true. Does the discussion end there? Does the legality of data collection – legality that hasn’t been subject to the full scrutiny of the Supreme Court – itself absolve the government of wrongdoing and eliminate any consideration that Snowden’s revelations were and are important to the people of the United States? Of course not, his revelations prompted a robust and important dialogue, and fundamentally changed the attitudes of countless Americans towards government and the surveillance state.
Countless violations of human rights, and by rights I mean the natural and inalienable rights that the Declaration of Independence, the right to life, liberty and the pursuit of happiness and all the rights those encompass such as speech, assembly, association and travel, have been violated throughout history by governments in perfectly legal manners. Even elected governments have written countless laws that violated human rights. Some are obvious and egregious, such as slavery and segregation. Others are less obvious, and some are honestly debatable.
Many people who have an interest in logic and argument or who just like to debate are familiar with the concept of a logical fallacy. There are dozens of them, and Wikipedia’s list makes for educational reading. Some are formal i.e. they can be demonstrated symbolically, and others are informal i.e. they “persuade” unjustifiably. Among the latter is “appeal to law,” which is a false conflation of law, morality and fundamental principles.
Certainly, there are laws that are immoral, and there are laws that violate the fundamental principles of this republic and of the principles of liberty. There are systems in place to address these laws, including the legislative process (among the rights guaranteed in our Constitution is the right to petition the government for redress of grievances), judicial review and elections themselves. That’s not to say, by any means, that laws should be suspect. After all, there certainly are laws that truly and accurately protect our rights. Respect for the rule of law is a critical component of any functional society, but that’s not today’s issue. Today, the issue is whether the mere fact that an action is prohibited or mandated by law is a sufficient argument for the validity of that prohibition or mandate. Can someone argue down someone else simply by declaring that “the law is the law,” or that “he broke the law?”
Enacting a law is a complicated process, one that involves many sets of eyes and many opinions. Sometimes the process is very visible and highly debated, as with signature legislation at the national level, sometimes it’s little-noticed, as with minor bits of legislation at the local level, sometimes it’s concealed or obfuscated, as with some of the thousand-page bills that come out of Congress, and sometimes it happens “in the dark,” as with much that regulatory agencies do. Yet there’s a process behind all these enactments, and usually that process isn’t the dictatorial declaration of one person sitting on a throne (even regulatory edicts go through many hands, have comment periods, and reflect direction from elsewhere). We can presume that some thought has gone into every law and regulation that’s been enacted. We can vehemently disagree with the law or regulation, and think that the enactors are ninnies or malevolent actors, but that’s a different matter. The point is, laws don’t happen without process.
An argument can be made that the mere fact of “process” adds validity to the position staked out by the law, that if something has been written into law, there has been some degree of debate and that what ended up on paper is the product of that debate. Thus, an argument against an enacted law starts from a subordinate position, and the person defending the law can simply state that its enactment supports its validity. Think about that argument for a moment, though – and consider that if the underlying reasons for its enactment are good, strong evidence for one’s side of a debate, then those reasons should be what’s presented in support of the law’s validity. Simply declaring that the law’s existence means there are good, strong reasons is lazy and willfully blind. It’s also false. History is replete with laws that were written on bad premises, on lies, on bribes, or as payback, and defense of a law that has that sort of foundation merely because the law got passed just perpetuates the injustice of its enactment.
So, beware of falling into a “the law is the law” trap. Don’t accept it if it’s used by someone else, and don’t use it to defend a position you support. It’s cheap and it’s logically indefensible. Worse, it’s morally indefensible. To place laws in primacy over the principles that inform their existence is to abandon those principles, and therein lies a path to tyranny and the destruction of those principles.
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