It’s almost charming the way a law professor says that disappearances in Portland, Oregon, are against the law. First, you don’t need an expert in the law to know something’s wrong here. Second, the observation does not affect future behavior of those mysterious commandos dressed in their unmarked military gear. Third, the statement appears to assume we have appreciable laws against which we measure state behavior. Do we?
In a sense, we do. The law professor has something in mind when he says a particular action is “against the law”. The law, or a particular law, do exist as an idea, a standard that means something when we refer to it. Yet we ought to define the idea according to how law actually operates in society. By that definition, the law, or a particular law concerning habeus corpus, does not exist.
How does law actually operate in our society? We elect representatives, who enact laws. These laws specify what behavior is required – pay taxes – or what behavior is prohibited – murder another person. Legislators attach punishments, to visit upon people who violate the law. We have an extensive judicial process to determine whether an individual has violated a particular law, and if so, what punishment the individual deserves. Following conviction and sentencing, a department of corrections administers the punishment. We call the entire process, after legislators enact a law, enforcement. Force is the significant root.
We elect representatives. After that, the state manages legal processes from beginning to end. Specifically, it manages enforcement processes. If the state violates laws it is supposed to enforce, how can we say the law exists? Does it exist because it is ‘on the books’, as we say? Yet numerous laws remain on the books long after we – that is, the state – ceases to enforce them. They only exist in a musty book that no one opens or reads. We would not say dead-letter, outdated laws exist. Why would we say laws the state actively violates exist?
Well, you say, habeus corpus is different. Habeus corpus is a natural right, it is part of natural law, thus it exists no matter how the state treats it. We have a right not to be disappeared. The extended definition of how laws actually operate in society does not pertain to natural law. We’re happy to have a Bill of Rights, but in fact, these rights exist whether or not we write them down. We expect the state to observe these restrictions on its authority, and on its use of force, independent of legislative and legal processes.
Good point, and point taken. In that sense, the law professor refers to something real. I would say, though, that if the state does not respect citizens’ rights, natural or otherwise, the rights may as well not exist. If uniformed goons grab you off the street as you walk home from a protest, throw you in an unmarked car, and detain you for an indeterminate amount of time, in what sense does habeus corpus exist, except as a concept and latin phrase law professors like to use. The right makes no actual difference in the way the state behaves. It places no real restriction on the state’s behavior. How does it exist?
So we still use the phrase ‘against the law’, just as we use the phrase ‘there ought to be a law’. In fact, though, we make laws as we go along. We commit many important laws to paper, laws enacted at various levels of government. Many laws do not reach that level of formality, and thus do not enter the realm of legal process described above. The English called that species of law common law. Here in the United States, we often call it precedent.
Restrictions on the state, enumerated in the Bill of Rights, comprise a third kind of law. Here we formulate abstract, constitutional principles. We do not attach penalties to violation of these rights. Our response to violations is to protest, also called civil disobedience when protest coalesces into more organized activity. In egregious cases, following our own revolution against the English Crown, the next step is to replace the reponsible government.
When we couple the Bill of Rights with the Declaration of Independence, we have to place these rights in the realm of natural law. This pair of documents also sets the only precedent we have: when a government consistently ignores and violates natural rights, citizens have a single option: declare their independence from authority that does not respect their rights, and build a government of their own. Few want to do that. Yet state behavior in Portland makes you ask, “How fast will that number grow?”