From Mises Blog; archived comments below.
See also:
- Logical and Legal Positivism
- Legislative Positivism and Rationalism in the Louisiana and French Civil Codes
- Legal Positivists Are Natural Lawyers
Natural Law, Positive Law, Tax Evasion, Rituals and Incantations
Over on the LRC blog, there were some posts about the jailing of tax protestors; the following was my comment:
Yes, Irwin Schiff is–tragically, shamefully–in jail for tax evasion, “Because the judges who sit in judgment of him are paid their salaries by income taxes.” At least indirectly. But taxes are clearly not voluntary, and it is illegal to evade income tax. If the courts of a given system actually enforce a rule–provide penalties for not following the rule–this is what it means for the rule to be a law. It’s a positive law, to be sure–but a law. And it’s not only the courts–it’s the legislators, too. The tax protestors are simply wrong to say it “is” not illegal to evade income tax; it clearly is illegal, since the legal system does impose penalties for this conduct. Furthermore, the tax protestors are wrong to argue that this law is not provided for by statute. It is. And if they ever succeeded in persuading some judge that it was not, the tax statutes would simply be clarified to plug the hole.
Often the tax protestors adopt a sort of hyper-natural law stance in which they capitalize Law, in a crankish and quasi-mystical way, and refuse to even call something Law if it is not just. This has echoes of the Hart-Fuller debate where Fuller took the “natural law” view that law and morals cannot be “separated.” Hart took the “legal positivist” view that there is a difference between what law is and what it should be. I’ve always found this debate to be frustrating because the natural law side, with which I’m of course more sympathetic, seems confused and to misunderstand the positivist position. The basic idea of legal positivism–that it is possible to identify something as a law, even if it is unjust–seems to me to be obviously correct, and not even contrary to natural law thinking. It is currently illegal to sell cocaine or one’s body for sexual services or to evade income tax–but it should not be. Just law–law compatible with libertarian principles–is what positive law should be. Libertarian law, just law, is like a template or ideal by which actual, enforced law can be compared, or aspire to. (For discussion of the role of abstract libertarian principles being used to develop more concrete ethical and legal rules, see my Knowledge, Calculation, Conflict, and Law, pp. 60-63; and The Limits of Armchair Theorizing: The Case of Threats.)But to determine what the law is, one must see what rules are enforced. Oliver Wendell Holmes’s “bad man” theory of law always made a certain amount of sense to me–his view that the law is a prediction of how courts behave; it’s based on the notion that bad men “care little for ethics or lofty conceptions of natural law; instead they care simply about staying out of jail and avoiding paying damages. In Holmes’s mind, therefore, it was most useful to define ‘the law’ as a prediction of what will bring punishment or other consequences from a court.” Now we must keep in mind that identifying something as law does not mean it is just.
The tax opponents often seem to try to intentionally blur this line. When they should be arguing “the current law against tax evasion is unjust and immoral,” they say, “there ‘is’ no law against tax evasion.” They want their factual, descriptive “is” word to do the work that “should” ought to be used for. But such tricks cannot work. As Brian Doherty notes in a perceptive article,
The tax honesty movement’s vision of the world is fantastical in another way. It is not merely obsessed with continuity; it is magical in a traditional sense. It’s devoted to the belief that the secret forces of the universe can be bound by verbal formulas if delivered with the proper ritual.
(See Doherty’s It’s So Simple, It’s Ridiculous; also and Five Reasons You Don’t Owe Income Tax, Dammit!) See also Huebert‘s perceptive comments about the futility of thinking we can achieve liberty by just finding the right arguments to persuade federal judges: as he notes, the authors of a book he is commenting on “seem to think that restoring liberty is really only a matter of overturning a handful of bad court precedents. If we can just get in front of judges and do that — apparently through the irresistible power of our arguments and our lawyers’ outstanding legal skills — we can finally achieve liberty across the land.”
So, to sum up: the tax statutes do penalize tax evasion. The legislators want it this way. And the courts do act on this–and put people in jail. It is illegal to evade income tax. And, yes, this is monstrous–but there it is. And, unfortunately, I don’t think there’s any incantation, spell, or ritual that will persuade judges or legislators to see the light and start protecting our liberty. And given how dangerous the state is, it is prudent to recognize reality.
Update: Predictably, I’ve gotten a flurry of emails from the tax protestor types, ranging from the tired old “SHOW ME THE LAW” to “your tone is bad, it will make people think it’s hopeless,” to “I don’t care what the law is”.
As for tone comment–I think it’s prudent and not unlibertarian to be realistic and not to be self-delusional. Call me crazy. But this opposition to truthfully recognizing an unjust law is one of the reasons activism is dangerous–it makes people conflate substance and truth with tactical, strategic concerns–they start to identify truth with “what motivates or inspires or persuades people,” and conversely, if something is unpleasant, it’s “not true”–the ostrich approach to reality. I don’t think libertarianism requires one to be an ostrich or a martyr. (See my The Trouble with Libertarian Activism .)
As for SHOW ME THE LAW–Doherty discusses this:
The tax honesty folks similarly believe that their foe the IRS must also be bound by these grimoires of magic: that without the properly sanctified OMB number an IRS form holds no power, that without uttering the mystic word liable no authority to tax can truly exist.
And always, always, the ultimate incantation, The Question: Where does it say that I owe income taxes‘ Show me the law!
The tax honesty types have such trouble even imagining an unjust law that they just cannot accept that tax-evasion-criminality–which is clearly unjust–can really be illegal. For clear explanations (not that the tax honesty types care) of why federal legislation is behind tax evasion laws, see Doherty’s It’s So Simple, It’s Ridiculous and Five Reasons You Don’t Owe Income Tax, Dammit!; also Income Tax: Voluntary or Mandatory?; Tax Fool; and Why I won’t join the tax protesters.
Some have accused me of legal positivism–well, sure, if you mean the belief that it’s possible to identify and recognize a given rule as a law, even if it’s unjust; but not, of course, if you mean the belief that only commands of the sovereign count as genuine law (in fact my opposition to this type of legal positivism is one reason I am skeptical of many natural law arguments: they are also positivistic in this sense, in that they believe that while the legislature may not decree true “Law” or morals, God can; they just push it back a level. My view is that not even God can make evil good).
The legal positivism (in the pejorative sense) of the natural law types can also be seen in their repeated SHOW ME THE LAW question. They are so used to the modern, positivist system of written constitutions and law-as-legislation that they seem to have trouble thinking of law as something other than “what’s written in ‘the lawbooks’”. But a written Constitution is not the only way to have a constitution, as Britain’s centuries-old unwritten constitution shows; in fact, it’s better, I would argue, than an artificial, naive, utopian, constructivist one like the failed American one. And statute is not the only way to make law–or even a good, or legitimate, way, in my view (see my Legislation and the Discovery of Law in a Free Society). Laws are the rules that are legally enforced–as I noted above with reference to Fuller and Hart and Holmes’s realistic “bad man” theory of law–and these rules need not emanate only from “the law books” or a written Constitution. To think so is to succumb to the legal positivism that dominates our legislation-ridden age. (There are innumerable types of unwritten rules, including even unwritten “internal rules” of the state itself–see Alfred G. Cuzán‘s classic paper “Do We Ever Really Get Out of Anarchy?, and his forthcoming JLS paper Revisiting “Do We Ever Really Get Out of Anarchy”.)
And this also brings us back to Doherty’s comments about the “Protestant” nature of the tax honesty movement:
Their devotion to their beliefs is certainly religious. Indeed, tax litigation consultant Daniel Pilla, author of The IRS Problem Solver, says they’re “like programmed cult members — you can’t reason with them.” More charitably, the tax honesty people are staunch exemplars of America’s glorious Protestant heritage.
This observation is not merely a pun on their status as “tax protesters.” Their attitude toward the Constitution and the statutes and legal decisions regarding the income tax are uniquely Protestant, relying on a layman’s ability — indeed, obligation — to read and study and parse the original documents himself, to come to his own personal relationship with the law and the cases, and to prefer his understanding to that of the priesthood of lawyers, judges, and accountants.
“Case law” — the kind that proves that you can and will be arrested or fined for not filing or paying income tax — means nothing to them; they like to rely strictly on the statutes as written, or on Supreme Court cases and straight constitutional interpretation. Irwin Schiff, the godfather of the movement, is insistent that you shouldn’t just take his word for anything: You should check the statutes. He is, he declares, the biggest reseller of the published version of the U.S. tax code. He sells specially tabbed copies leading you straight to the pages in the multithousand-page behemoth you must see to understand his own interpretations.
It’s no surprise that the Protestantish “SHOW ME THE LAW” and their positivistic fixation on written documents as the only source of law mirrors the Protestant view of sola scriptura, or “Scripture alone,” and their befuddlement with the more nuanced and sophisticated Catholic view:
The true “rule of faith”–as expressed in the Bible itself–is Scripture plus apostolic tradition, as manifested in the living teaching authority of the Catholic Church, to which were entrusted the oral teachings of Jesus and the apostles, along with the authority to interpret Scripture correctly.
(See Scripture and Tradition.) The Catholic idea of a non-written, merely oral tradition or teaching befuddles Protestants. Thus, just as they say “SHOW ME THE LAW”–meaning a written statute–they ask the Catholics, “What’s Your Authority?” Think about it…
September 10, 2009 at 12:18 am-
Of some relevance, the seeds of a debtors revolt are playing out right now.
There are limits to what a person will take. I’ve been saying that. In this case, she said she was more than happy to pay down her debt like she had been doing, but they couldn’t leave well enough alone.
15% is bad enough, but she probably found marginal utility in it. They took that away from her without justification (according to her), while she owed them money. Who has the upper hand? I cannot find any flaw in her reasoning. They hurt her, she hurts them.
September 10, 2009 at 12:56 am-
I presume this is happening in the USA. I have always felt that the fault is in the slogan ‘No taxation without representation!’. That is an implicit promise to pay taxes when you have representative government.
Instead, you should put on your T-shirts a slogan like “The only good tax… is a dead tax!” 
September 10, 2009 at 12:59 am-
Stephan, would be interested to read your take on Marc Stephen’s “No State Project”.
September 10, 2009 at 2:45 am-
This is a really good piece, Stephan. Sensible. Your take on the Hart/Fuller debate is very nearly my own. (I’m an admirer of both H.L.A. Hart and Lon Fuller.)
September 10, 2009 at 3:38 am-
DixieFlatline,
The name you’re looking for is Marc Stevens. 
September 10, 2009 at 4:10 am-
Peter Schiff has commented on his father and the tax-fights:
http://www.youtube.com/watch?v=WpVi7zw_2oU
from 19:36 point, quite enlightening.http://www.youtube.com/watch?v=KlL5vm9GK3A
September 10, 2009 at 8:03 am-
I guess posting a video by a tragically misinformed and misguided woman with a novel idea about what constitutes civil disobedience is in the ballpark of the topic here. Ackerman has been making wild, irresponsible calls to “bring down the system” with his ever attendant knee jerk and off-the-cuff plans to bring that about. Now he suggests that this woman’s “revolt” sounds like a good idea and he can’t find a flaw in her reasoning. Dollars to donuts most could find the flaw in her contract which she signed and any responsible person could find her first flaw in the decision to maintain her desired lifestyle with credit cards.
September 10, 2009 at 8:05 am-
..the problem with the Legal-Positivism endorsement here is that Americans can never ‘know’ what the “law” is… even under the loose definitions of that Legal-Positivist view.
Legal-Positivism asserts that ‘law’ is whatever rules ‘law-makers’ produce and enforce, independent of any other concepts of ethics, fairness, or justice.
But if the law-makers product (law) becomes so vast, complex, contradictory, and arbitrarily enforced ad hoc — then there is no way an individual can even know what the Legal-Positivist body of ‘law’ is on any given day. Without common certainty of the law’s requirements — the rule-of-law can not exist.
That is exactly the current U.S. situation … where citizens can not possibly understand tens of thousands of complex Federal/state/local laws & regulations– nor predict how those laws might be applied against them at the whim of legions of government prosecutors… in arbitrary court processes.
Muggers mug you with a gun in your face. National dictators dictate rules to you with a gun in your face. Law-makers issue rules to you with a gun in our face. It’s pragmatically unwise to directly resist, as tax-protestors discover. Might often works, but might does not make right.
Legal-Positivism is totally incompatible with the long standing principles of Anglo-American rule-of-law… but very useful to those who wish to control others.
September 10, 2009 at 8:34 am-
Barton,
What is the alternative to legal-positivism?
- September 10, 2009 at 8:55 am
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Barton,
I’m reminded of the film “The Aviator” when Leonardo DiCaprio (Howard Hughes) says to Alan Alda (Sen. R.O. Brewster), “You want to go to war with me?” Alda replies with an infuriating smirk, “It’s not me, Howard. It’s the United States government. We just beat Germany and Japan. Who the hell are you?”
The type of tax protesters SK is talking about today, law books in hand, to a Federal judge: “This isn’t right.” To which I imagine an improbably candid and self aware judge responding, “We just slaughtered hundreds of thousands of Iraqis on false pretenses and without a declaration of war and then built an “embassy” the size of the Vatican in the center of all their oil. Who the hell are you?”
(PLUS, they DO have THEIR laws against not paying taxes and will remedy any loopholes, need be)
I don’t consider SK’s post to be a “Legal-Positivism endorsement”, I consider it a level headed warning from someone who really knows these bastards and the astounding power they wield due to the unfortunate misconceptions of 99% of our fellow citizens.
(I also love Doherty’s discription of the magical thinking of these tax protestors. Thanks for the reference, SK.)
- September 10, 2009 at 1:13 pm
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There are levels to normativity. Manners, ethics, law — each of these are normative realms, and each of these differ in scope and method. Legal positivists would say that it is always important to realize which level you are talking about. Legal naturalists too often fuzzy the distinctions.
My problem with legal naturalists is that they too often take for granted the superiority of their preferred ethical norms, and then proceed — without much argumentation — to saying that their ethical norms trump established law, whatever that may be.
This gambit does not change reality, however, where you have a diversity of people supporting a diversity of ethical philosophies, and saying that “ethics trumps law” is worse than useless . . . it actually scuttles the process of reforming law.
Nevertheless, each person does have some sort of ethical stance, and — despite the near-universality of the notion that one is supposed to obey established law, working to change it primarily or only within the system acknowledged by established politics — actual, practiced law and politics can push too far, and each person has to decide when to disobey. On moral grounds.
If you distance yourself from a rigid naturalism, and see the problem of obedience from a truly naturalistic (scientific/positivistic) perspective of both micropolitics and establishment politics, then you see the difficulties of any simple solution. Still, we can protest and even strategically disobey bad law; we just know there’s no philosopher’s stone (or, in America: “sorcerer’s stone”) that will protect us when the establishment aims to crush us.
The best thing about simplistic naturalism is that it sometimes does give boldness to simpletons, thus encouraging them to withstand tyranny when the odds prevail.
But the guy at Tiananmen Square, squaring off against the tanks, got disappeared, right?
Naturalism did nothing for him.
Oh, and yes, actual (“positive”) established law can become too complex. And that is very bad. The Grandfather of the positivist approach, Jeremy Bentham, excoriated lawmakers at length for this error.
Positivists themselves are not incapable of some good judgments about what law is good and what is bad. Bentham was a legal reformer. He may have pilloried (perhaps excessively) legal naturalism and the idea of Natural Law, he still believed, for the most part, in simple law and a huge scope for individual liberty and responsibility.
September 10, 2009 at 2:00 pm-
Well done, Mr. Kinsella. Thank you for your *many* excellent posts.
September 10, 2009 at 2:06 pm
September 10, 2009 at 2:31 pm-
Under a government which imprisons unjustly, the true place for a just man is also a prison.… where the State places those who are not with her, but against her, – the only house in a slave State in which a free man can abide with honor.… Cast your whole vote, not a strip of paper merely, but your whole influence. A minority is powerless while it conforms to the majority; it is not even a minority then; but it is irresistible when it clogs by its whole weight. If the alternative is to keep all just men in prison, or give up war and slavery, the State will not hesitate which to choose. If a thousand men were not to pay their tax bills this year, that would not be a violent and bloody measure, as it would be to pay them, and enable the State to commit violence and shed innocent blood. This is, in fact, the definition of a peaceable revolution, if any such is possible.
September 10, 2009 at 3:37 pm-
There’s no such thing as law, the one with power makes the rules, might is right.
Only the strong survives. The strongest wins, not the fairest.
September 10, 2009 at 8:55 pm-
USA Today beat me to it – might makes reality. Unless you are stronger than the bully you will never escape the bully. Tax protestors and friends should look at how the Mexican Drug Lords put the fear into government agents – by physical deadly force. There is no other way other than to be stronger than your enemy.
September 11, 2009 at 4:12 pm-
Gil’s last comment sums it well. In fact, the total U.S. population, properly organized, would have an easy upper hand. Imagine 150,000,000 armed and trained citizen-soldiers actually defending liberty. Would Congress have a chance? Could they convince their Army to fire on such millions defending actual freedom?
Such is the basis of the Committees of Safety: http://www.committeesofsafety.org.
September 11, 2009 at 9:19 pm-
“Imagine 150,000,000 armed and trained citizen-soldiers actually defending liberty.”
This sounds rather naive. The vast majority of the citizens do want the USA to stay as they are! Just watch what they are voting!
To count on the masses is never a good idea… especially if the result means they cannot enslave others to work for them anymore.
- September 12, 2009 at 11:48 am
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Tim,
I disagree with your assessment. I don’t believe for a moment that the “vast majority of citizens do want the U.S. to stay as they are.” Rather, most people have lost touch with liberty. They have not experienced it, yet they really do want it in their hearts. Look at all the hopefuls who voted for “hope and change” with Obama. They thought, in their hearts, that they were going to get someone who would finally set them free. Even their convoluted arguments for socialized health care systems are a striving for freedom. They simply have lost touch with how freedom is actually achieved. They think that some perfect President or Congressmen are going to finally bring it to them. They just need the fire of liberty lit under them again, and they will want it. It happened to me! I used to be one of those liberal-leaning crazies who thought government should “free” us from environmental damage and “free” us from inequality, etc. It wasn’t until someone else showed me that freedom only exists in myself that I was able to adopt the full libertarian view of government as only being an entity of force.
I now believe the ONLY way that the power usurping federal government will be stopped is when the common people once again recognize what freedom really is and take it back.
The Committees of Safety has a viable plan and format for making this happen constitutionally and by state statute. It is a far better plan than any hopes of replacing all the long-term incumbents in Congress!
September 24, 2009 at 4:34 am-
In my mind, the difference between natural law and positive law doctrine is made clear by Bastiat’s simple premise:
The only proper role of law is to protect life, liberty, and property. If the “law” is used to violate life, liberty, and property it is not “law” at all, but an instrument of plunder.
Personally, I use the term “law” to describe that which protects life, liberty, and property and the term “legislation” to describe rules and dictates imposed by a ruling class bent on plunder and control.
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