Eric Garner, many libertarians seem to think, was innocent as far as the natural law is concerned.
“Natural law” is an ethical tradition with an illustrious pedigree stretching back millennia. From this perspective, natural law is a transcendent moral order that provides the standard of justice for “positive law,” i.e. human legislation: If a human law contradicts the natural law, it is unjust.
The law forbidding the sale of loose cigarettes that Garner violated (repeatedly) is unjust, for it violated Garner’s “natural right to dispose of his own property (‘loosies’) at will,” as one libertarian writer put it.
Let’s assume for the moment that the above argument is correct and that the law forbidding the sale of untaxed cigarettes violates the natural law. So what? One of two implications follows from this assumption: (1) Garner acted rightly, for there is no moral duty to comply with an unjust law; or (2) Garner acted wrongly in breaking the law, for even though it is unjust, there is a moral duty to comply with, or at least not resist, laws enacted by recognized authorities (like legislators).
Neither line of reasoning bodes well for Garner’s natural law supporters.
The problem with the argument in (2) should be self-evident: If Garner had a duty to refrain from breaking the law, though it was unjust, then he acted not only illegally, but immorally. In resisting arrest, then, he was in the wrong. Why, though, would a libertarian and Garner supporter possibly want to make this argument, when it is so clearly harmful to their case? The injustice of the law forbidding the sale of untaxed cigarettes is a reason to abolish the law. It is irrelevant to the Garner case.
The argument in (1), however, is also flawed in that the conclusion—Garner acted justly—does not follow from the premise—there is no moral or natural duty to comply with an unjust law. Few and far between are those natural law thinkers who would contend otherwise, and the number of history’s great natural law theorists who would contend otherwise is approximately zero.
Socrates, for example, refused to disobey even the law under which he was unjustly convicted and sentenced to death. He implicitly contracted to abide by a system of law from which he reaped a lifetime’s worth of benefits, Socrates argued. It would be immoral to disobey this law, just because he now is harmed by it.
A good person and citizen, he told his friend, must “do what is his city and country order him” to do or else strive to “change their view of what is just [.]”
In his magisterial, Commentaries on the Laws of England, William Blackstone writes that “in relation to those laws which…forbid only such things as are not mala in se (wrong in themselves), but mala prohibita (crimes, because forbidden)”—like peddling untaxed “loosies,” say—our moral obligation is to either comply with the law or, “in case of our breach of those laws,” submit to the penalty. Whichever course of action a person chooses, “his conscience will be clear [.]”
Blackstone further notes that if everyone went about breaking those laws that they disliked—“if every such law were [viewed as] a snare for the conscience of the subject”—then “the multitude of penal laws in a state would not only be looked upon as impolitic, but would also be [seen as] a very wicked thing [.]”
He further adds that “disobedience to the law” is “an offence against conscience” only if it “involves…any degree of public mischief or private injury [.]”
Thomas Aquinas, a “rock star” of the medieval era and among the greatest of Western philosophers generally, said is that an unjust law “is not a law, absolutely speaking, but rather a perversion of law” (italics added) [.] However, a perversion of law, even when it emanates from a tyrant, still contains “something in the nature of a law,” for “it is an ordinance made by a superior to his subjects, and aims at being obeyed by them [.]”
An unjust law “has the nature, not of law, but of violence,” but it nevertheless “retains some appearance of law” in “being framed by one who is in power [.]” Thus, even an unjust law “is derived from the eternal law; for all power is from the Lord God” (italics added) [.]
To be clear, natural lawyers have always insisted that there are unjust laws that demand disobedience. But there are two things to bear in mind here:
First, the law in question, like a law requiring murder, must be wildly offensive to conscience.
Second, the disobedience should be open and conducted in a manner that is consistent with respect for law as a whole. This way, the disobedience distinguishes the disobedient from cowardly criminals while drawing the public to the injustice of the specific law.
The early Christian martyrs, Ghandi, Martin Luther King, Jr. and the “civil rights” activists of the 50’s and 60’s are among the scores of believers in natural law from throughout history who civilly disobeyed unjust laws.
Eric Garner is not to be included in their number—or even mentioned in the same breath.