All That's Legal Is Not Right; All That's Illegal Is Not Wrong

November 30, 2011

All That’s Legal Is Not Right; All That’s Illegal Is Not Wrong

Statehate recently voiced frustration with those who would conflate the morality of a law with the existence of a law, i.e. “It’s bad because it’s illegal! It’s illegal because it’s bad!”

The moribund infirmity of this line of thinking cannot stand up to even the most tepid analysis, such that I think it unnecessary to address in any depth. But as I was thinking about all the different examples of unjust laws in history, I recalled the fact that in Cronin v. Adams, 192 U.S. 108 (1904), the Supreme Court upheld a Denver, Colorado law barring the sale of liquor to women, and prohibiting women from working in bars or stores where liquor was sold (later overturned, obviously).

This law is the perfect example of an unjust law that is passed under auspices of public health, but is not worth the candle in terms of liberty lost.* Treating men and women equally under the law, in my view, means not applying paternal levels of protection to women on the basis that women are not similarly situated in certain physical and/or mental respects. To the extent that these differences may exist or even matter, gender-neutral standards will account for them (military service is a particularly relevant area of study in this regard). But most importantly, this was clearly a ban that women themselves did not want. And if I recall correctly, the law itself had an exception for women who worked in family-owned establishments, which demonstrates that the law had little to do with protecting women, and a lot to do with keeping them out of “disreputable” places whenever possible, and forcing them into pre-ordained roles of temperance and chastity.

If you are arguing with a person who believes that you should obey the law for its own sake, think about Cronin v. Adams. Heck, think about the Jim Crow South, or anti-miscegenation laws, or the fact that, even not too long ago, is was illegal to be gay and exist.

*Given that I view freedom as a means for achieving utility and not an end in itself, I certainly believe that there are laws whose benefits outweigh the liberty lost. This is clearly not one of them.

7:59pm | URL: http://tmblr.co/ZMMjnxCei10h

(Notes: 86)