13 Responses to In Defense of Legal Naturalism

  1. bile September 10, 2009 at 1:04 pm #

    Isn’t this just semantics? There is a common word used… “law” and due to its far from concrete definition there are lots of adjectives to clarify.

    The way I read Stephan’s comment was that those who are arguing against taxation claiming it’s not the law are at least miscommunicating what they mean. That it’s not natural law or it’s not law as they define it. It confuses the issue. It’s all law in the general usage of the term… so just say what you mean and don’t get caught up on the “it’s voluntary, there is no statute that requires filing” bandwagon.

  2. Neverfox September 10, 2009 at 1:21 pm #

    I too saw Stephan’s article has being compatible with your analysis, Dr. Long. Isn’t he essentially emphasizing the de facto aspect as being of practical importance when measuring the effectiveness of your attempts at persuasion in court? The point, I think, is a good one: that tax deniers aren’t trying to make a general statement about natural law and why the positive law is false; they are instead acting naively in thinking that those institutions (like the IRS) that claim to enforce the law, actually care about any form of law (natural or otherwise), when in fact, it’s simply the end of collecting a tax that they care about. They will find any justification and will change the written law or “interpret” it to fit that end every time. They assume that the state wants to be shown the error of their ways, which misses the point of what motivates the state apparatus.

  3. Stephan Kinsella September 10, 2009 at 1:59 pm #

    Roderick: I wouldn’t say I was “puzzled as to why anyone would deny that unjust laws are laws”. I think I have a good idea why. I just think they are confused. As I wrote,

    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.

    Why do people hold this view, this confusion? A number of reasons, I suppose. One is an undue attachment to natural law thinking. Another is the dishonesty that too often accompanies activism–as I said, “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.” Then there is the fear that by calling something “law” they are conceding too much; they are conceding some degree of legitimacy that the law does not deserve. This seems to be the concern of the anti-IP types who refuse to call it “intellectual property” since it is not property. But to me such semantical obsessions are silly and wastes of time.

    So to me it’s not a big puzzle why people say this. But I think they are wrong. Legal theories like yours and that of, say, Hart, are interesting and useful for detailed, specialized classification of legal concepts, but not necessary IMO for basic understanding of what law is.

    And by the way, Spooner’s argument that slavery “is” unconstitutional always struck me as dishonest legerdemein, and akin to the tax nuts’ arguments that there “is” no “law” requiring payment of taxes.

    But the bottom line is that if we get ensnarled in semantics we will run in circles. Libertarians oppose the inappropriate use of force, including systematic or rule-based uses of force–what we think of as “laws”. Because these laws are real and forceful effects on our bodies and property, they get on our radar screen. If they were just mouthings of vegetative statists, no one would care. A legless, armless Nancy Pelosi lying in the gutter muttering that “there is a legal right to healthcare” would not concern us libertarians. It’s when these rules become enforced by the state–become positive laws–that they get on our radar screen. The laws–the systematic, rule-bound uses of force–that amount to aggression–that is, that are unjust laws–are the ones that concern libertarians since, well, we are against aggression.

    So this is very simple, to me, and it’s just confused by sloppy use of terminology and attempt to make this more complicated than it is. Libertarians are against aggression. That is why we are against the state–because it is the agency of institutionalized aggression. And this is why we want laws to be just–laws are rules backed up by force. That is why we are concerned about unjust laws. And of course this whole perspective implies that there can be just or unjust laws, just as there can be just or unjust uses of force.

    To cloud the waters by metaphysical, overly metaphorical, sloppy use of concepts, for strategic purposes, seems to me to be unhelpful. Who cares if someone thinks an unjust legally enforced rule is “not genuine Law”? How does this help do anything but confuse matters? Why not just say, “that law is not just”? For that is the case.

    What do you think?

    BTW, you may find of interest Wirkman Virkkala’s comment:

    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.

  4. David Gordon September 11, 2009 at 12:30 pm #

    I think that Stephan’s criticism of the anti-tax movement applies to a large extent even if one accepts the view that a purported law that violates natural law is not really a law. Many of the tax protesters argue, not that income taxes violate natural law (though they may think that this is true) but that, even if one takes a positivist view of law, there is a defect in the income tax laws that allows those “in the know” to avoid paying. They think that if you know the right formula, the IRS and courts will leave you alone.

    • Roderick September 11, 2009 at 1:15 pm #

      Yeah, it’s important to distinguish the following claims:

      1. Paying taxes is not a legal requirement because taxation is unjust.

      2. Paying taxes is not a legal requirement because the statutory language either was not enacted properly by the government’s own standards, or else does not actually authorise taxation under its most defensible interpretation.

      3. Paying taxes is not a legal requirement because if you point out (1) or (2) to a judge, they will be convinced and let you off the hook.

      (1) is true. (2) might or might not be true; one would have to look at the argument. But (3) is almost never true. A lot of tax protestors make an unwarranted slide from (2) to (3).

      • MBH September 13, 2009 at 11:33 am #

        Would you agree this also exists:

        4. Paying taxes is not a requirement of natural law, but the legal institution — which is a physical fact — does require paying taxes. Since that institution is shaped by political power, you ought to command political power and reshape the legal institution.

      • Araglin September 17, 2009 at 6:10 pm #


        In fact, when presented with a clever and technically correct argument for how, given the actual letter of the positive tax law (as well as IRS regs), a taxpayer’s actions or omissions in a particular case do not give rise to the tax liability (claimed by the IRS)–courts in tax cases will often concede that the tax payer may actually be technically correct, but nonetheless order that the tax payer ‘pay up’ anyway. Why? because, not even the judges in these cases treat the law as entirely ‘positive’: rather, they have no probelm reaching for their own (normative) policy: that, for example, ‘form’ [what the law actually provides on general principles of statutory construction] must yield to ‘substance’ [the state must have its loot, all baroque legal niceties notwithstanding]…

        • MBH September 17, 2009 at 9:00 pm #

          Araglin, why does a judge — who doesn’t treat law as entirely positive — have to treat law normatively? Can’t you hold the purely descriptive position that non-institutionalized laws are the basis for institutionalized laws? And while many judges and legal systems screw up the interpretation of non-institutionalized laws and/or the basis of institutionalized law, that doesn’t mean that natural law cannot be expressed through institutionalized law; does it?

          I’d grant that what you describe is most likely the judges’ mindset in those cases. But are there no judges who act as if ‘form’ (what the law actually provides on general principles of statutory construction) could be expressed through ‘substance’ (the state’s power)?

        • Araglin September 18, 2009 at 2:29 pm #


          As for your point about it being possible for the natural law to be “expressed” through the institutionalized law. If fact, it probably happens all the time with those institutionalized laws known to the common law as property, contract, and tort (as well as the law of agency and the law of corporations, but I realize these latter are more controversial claims among libertarians). However, I’m pretty sure the natural law is very rarely (if ever) “expressed through” the tax code.

          As far as the rest of your commen, I’m afraid I may not have been entirely clear. If you’re interested in taking a look at the Ur-case where the “substance-over-form” judicial doctrine was deployed by SCOTUS, here’s the citation:

          Helvering v. Gregory, 293 U.S. 465 (1935).

          As you’ll see, the Court doesn’t explicitly define “form” and “substance” the way I did in brackets. Rather, they assert (and here I’ll quote from Wikipedia) that “for Federal tax purposes, a taxpayer is bound by the economic substance of a transaction where the economic substance varies from its legal form.”

          By what means (epistemically) do courts detect the “economic substance” of a transaction hovering above its “legal form” or peer into the mind of the taxpayer to determine whether the transaction has a “business or corporate purpose”? Got me. My guess is that, more often than not, it’s merely a hunch that they get to nakedly assert when a taxpayer, having learned the Code backwards and forwards, cleverly structures his affairs so as to limit or eliminate tax liability. When this happens and a taxpayer outsmarts the Code (horrors!) this doctrine gives the courts an ‘out’ whereby they can admit that the taxpayer was technically correct but still refuse to say “you win.” All they have to do is utter the word “sham,” hint in the direction of the true “economic substance” of the transaction in question, slam the taxpayer with liability, and then top it off with a few recitations from Helvering, such as the following:

          “In these circumstances, the facts speak for themselves and are susceptible of but one interpretation. The whole undertaking, though conducted according to the terms of [the statute], was in fact an elaborate and devious form of conveyance masquerading as [whatever the transaction purported to be], and nothing else. […T]he transaction upon its face lies outside the plain intent of the statute. To hold otherwise woudl be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose [loot!].”


        • MBH September 21, 2009 at 9:44 pm #

          Hey Araglin, thanks for the response. I’m inclined to agree with your case: the tax code does not express natural law. But, so long as the current legal system is capable of expressing natural law, and especially insofar as it already does so, we have evidence that common law can be made to express natural law — as tricky as that may be to make happen on all fronts.

  5. Roderick September 11, 2009 at 3:40 pm #

    Oh, here’s another argument for legal naturalism.

  6. Kregus September 21, 2009 at 1:47 pm #


    Is this a coincidence?


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