ȃȂȇ Partʺʺ: Politics and Philosophy
thought todeterminemorality. It is not true that whatever the law permits
is morally right and whatever it forbids morally wrong. Ethics is prior
to law, logically and probably also historically. Ideally, law serves a good
society by reinforcing the precepts of morality in certain clear-cut cases,
doing so through the duly restricted exercise and threat of governmental
coercion.
Unfortunately, actual law is not ideal law. Particular laws can be unwise
in their conception and wicked in their consequences and even in their
intent. Laws should always be subject to appraisal on ethical grounds. For
reasons I won’t take space to develop here (see YeagerȀȈȇȄ, pp.ȁȇǿ–ȁȇȂ), a
strong presumption runs in favor of obeying the law, even laws one thinks
should be changed. In cases of exceptionally wicked laws, however (a par-
ticular U.S. law ofȀȇȄǿcomes to mind), ethical considerations may call for
disobedience. In some such cases, furthermore, it may even be the lesser
evil for judges to render decisions contrary to the actual law; at least I can
sympathize with arguments to that effect.
Ļe foregoing is what sense I can make of the concepts of “natu-
ral law” or a “higher law.” So interpreted, I do not disparage those con-
cepts; they are legitimate and important—enough so to deserve a sen-
sible grounding. Actual laws, merely by being actual, do not acquire
ethical force beyond what their content warrants and beyond the force
of the general presumption in favor of obeying them. Laws are always
properly subject to appraisal not only in view of their purposes, conse-
quences, and side effects but also on broader ethical grounds. Ļey should
ordinarily be changed only by regular legislative and judicial processes;
but in exceptional and extreme cases, to repeat, ethical considerations
may properly lead ordinary citizens and perhaps even judges to disobey
them.
Ļese truths should not be perverted into supposing that actual com-
mon law or statutory law is not actual law after all if it is deemed contrary
to some natural or higher law. For the sake of clear thinking, we should
maintain the distinctions between actual and ideal law and between law
and ethics.
Although, then, I accept and insist on a distinction between law and
ethics, mine is not the one that Rothbard and Block make. Ļey invoke
theirs, it seems to me, in an unsuccessful attempt to confer plausibility
on their highly questionable positions concerning crime, blackmail, and
other topics mentioned above. Ļeir errors are not so easily plastered over,
since they stem from trying to deduce all sorts of detailed positions from