If the account in this story (on the Asbury Park (N.J.) Press site) is accurate, it strikes me as quite troubling. The story reports that the religious leaders’ proclamation instructs people not to bring even criminal matters to the police (at least until they are brought to the religious authorities), and says that “it is forbidden [for religious group members] to continue to cooperate with them (secular courts) and to assist them in their efforts to pursue” coreligionists. That sounds like a recipe for frustrating justice, and making it less likely that criminals will be convicted and imprisoned.
Naturally, the authors of the proclamation have the First Amendment right to urge people to behave this way. But this doesn’t stop the urging from being harmful and wrong (though I’m happy to say that not all leaders of this religious group take this view). Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
ruuffles says:
“The child was between 11 and 12 years old when the more than yearlong alleged abuse began in Lakewood, according to the indictment.”
Who writes something like that? If a child is between 11 and 12 years old, then the child is usually described as being 11.
August 25, 2010, 11:34 amkarrde says:
This might be a reflection of the fact that the religious group in question has some opinions/teachings about settling intra-group problems themselves, as much as possible…
And a desire not to bring unfounded charges into the public sphere, where the presumption of innocence may not be given (even if it is given by the investigating officers and the Court).
On the other hand, it could be a reflection of a sweep-everything-under-the-rug mentality among the religious leaders who have to deal with it. (Need I say that this would make the statement a bad idea?)
I really can’t decide, until I know more about the individuals in this particulr case.
After clicking through to the article, I am surprised to discover that the religious leaders in question are NOT Catholic. Interesting…
August 25, 2010, 11:41 amarch1 says:
ruuffles,
August 25, 2010, 11:50 amI’m guessing that the author of the article (or the indictment?) knew only that the child was 11 or 12 years old, and thought the wording “between 11 and 12″ more professional (or whatever) than “11 or 12.”
David Friedman says:
For most of two thousand years, quite a large fraction of the Jewish population of the world was living under Jewish law despite being in countries with gentile rulers. That system–the ruler subcontracting the job of dealing with his Jewish subjects to the Jewish authorities–started to break down as a result of the shift, starting in the late 18th century, towards treating Jews as ordinary citizens of European countries rather than as a separate community within those countries.
I think what you are observing is an attempt to maintain elements of that system, and it isn’t clear to me that it is a bad thing. Why do you take it for granted that the governmental legal system is better able to handle such issues than the private legal system? I expect you are familiar with Lisa Bernstein’s work on the diamond industry, where a private legal system, in large part growing out of the same private legal system you are discussing here, seems to have done quite an effective job of replacing the formal legal system. For a second example, consider Ellickson’s description of the private legal system that, for some issues, effectively displaces the law of California in modern day Shasta County.
I don’t think you would have the same reaction to someone urging parents to send their children to a private school rather than a public school. Why is it so obvious that submitting disputes to a private court rather than a public court is a bad idea? Especially given that public courts, in recent decades, have compiled a record of dubious child abuse convictions, some of which look like cases from the 17th century witchcraft hysteria?
August 25, 2010, 11:54 amHouston Lawyer says:
All I can say, as a member of my church’s governing board, is that church governance is hard enough without bringing in criminal matters against fellow church members.
Significant segments of our population, however, are loathe to cooperate with the police. However, I don’t see how you effectively contract out law enforcement to an independent group with its own rules. Many actions by law enforcement personnel would be criminal in their own right if not authorized by statute.
August 25, 2010, 12:07 pmAlessandra says:
And such Jewish communities have prevented and/or correctly prosecuted and brought to justice every single case of child abuse within them, by any chance?
Many of their victims will tell you no.
August 25, 2010, 12:10 pmmoh456 says:
Isn’t it possible this sort of “urging” could itself be criminal activity outside 1A protection along the lines of obstruction or accessory after the fact?
August 25, 2010, 12:11 pmPubliusFL says:
How about the fact that the law recognizes a public interest in incapacitating perpetrators of serious crimes by imposing lengthy prison sentences, and that private legal systems can’t provide incapacitation?
August 25, 2010, 12:19 pmgrog says:
And are you under the impression that the U.S. justice system brings every single case of child abuse to justice?
I’m not defending the religious folks in the article or in Friedman’s depiction, but holding exterior systems to standards that quite clearly aren’t met in our mainstream system doesn’t shed any light.
August 25, 2010, 12:21 pmDavid Friedman says:
” However, I don’t see how you effectively contract out law enforcement to an independent group with its own rules. Many actions by law enforcement personnel would be criminal in their own right if not authorized by statute.”
One way is by contracting it out–I gave the example of Jewish communities during the diaspora earlier. In some cases, the royal authority was used to enforce verdicts, including capital punishment, given by the Jewish courts. Or consider a modern university police force, which acts with the approval of the formal system. Or private commercial arbitration, where the court and legal system are private but the verdicts can in many cases be enforced by the ordinary court system.
Another way is by having private enforcers do things that are criminal. I don’t know if you have read Ellickson’s Order Without Law, which is largely about private enforcement of norms in a (modern) rural California county. Some of the enforcement involves actions that, if they ever came to court, would be found to be at least mildly criminal. But one of the strong norms of neighborly behavior is that neighbors don’t take each other to court. Along similar lines, some things done by some Roma communities in enforcing their private legal system are criminal–but that hasn’t kept them from happening. For details see Gypsy Law, edited by Walter O. Weyrauch.
Beyond that, in the particular case being discussed, enforcement wouldn’t require any criminal acts. The Rabbinic court would produce a verdict and either it would be enforced by community pressure or, if the verdict was guilty and community pressure insufficient to enforce it, the offender could then be turned over to the official legal system.
August 25, 2010, 12:25 pmMatt J. says:
‘Houston Lawyer’ is missing the point. It is not that they are “loathe to cooperate with the police”. It is not even just as suggested “maintaining elements of that old system”: it is that by Orthodox Jewish dogma, it is gentile society that is lawless, they alone have the true Law, the Torah. So of course, it is judgment under Torah they consider as having priority.
Now add to that the consideration already mentioned, that the trend in child sex abuse cases really does look like a classic witch hunt, and then their actions in demanding Jews turn first to their own legal authority first doesn’t look like such a bad idea, despite the obvious clash with secular society.
August 25, 2010, 12:28 pmDavid Friedman says:
Alessandra’s comment seems to assume that the problem that worries me about the formal legal system is that it might not always bring child abusers to justice. I’m sure it doesn’t–legal systems don’t generally function perfectly. But what I was thinking of were the child care child abuse cases–one prominent one was in Massachusetts–where people were convicted of crimes of which they were clearly not guilty after trials that really do read like 17th century witch trials, complete with coached witnesses and accusations of acts that, if they had occurred, would have produced physical evidence–none of which was present.
All legal systems are imperfect in various ways; I expect Jewish legal systems have sometimes, in the past, convicted innocent people too. My point was not that the private system was obviously better but that it wasn’t obviously worse–and Eugene was writing as if it was.
August 25, 2010, 12:30 pmMatt J. says:
You are missing the point. NO legal system has the success rate you demand. Worse yet, ours has the dubious honor of falsely convicting many innocent. It really has become a witch hunt.
The saddest part of this is that our legal system SAYS it gives high priority to protecting the rights of the accused, it SAYS the accused is “innocent until proven guilty”, but the failure to do so in this witch hunt is conspicuous.
August 25, 2010, 12:32 pmDavid Newton says:
If the religious leader is talking in general terms about going to the authorities or not then that almost certainly is protected under the first amendment. If the religious leader is talking in specifics about a particular case then I believe the correct term for that is obstruction of justice: that most certainly is not protected by the first amendment.
August 25, 2010, 12:39 pmmikeyes says:
We all know how well that worked out in the Catholic Church.
By the way, I looked up the Shasta County Grand jury system which is empowered by state law and seems to be used primarily as an oversight body. It did make the Sheriff pay full value to the owner of three guns that were confiscated and then sold without proper authority.
August 25, 2010, 12:41 pmJoe says:
If the religious leaders involved are also let’s say a principal at a school, this right to “urge” is somewhat limited when they have a legal obligation to report, and not hinder others (such as other teachers of the faith or health workers at the educational institution) from doing so. “Urging” them not to very well might be illegal in certain contexts.
August 25, 2010, 12:43 pmpete the elder says:
Do you have any recent examples of how it “has become a witch hunt”? I have not heard of any “witch hunt” cases recently and the people I know who investigate these crimes do so very cautiously and have learned from the mistakes of the past where children were coaxed into making false accusations. Most of the best known child abuse “witchhunts” were over 20 years ago.
August 25, 2010, 12:46 pmGaunilo says:
I would rather have a root canal than get into issues regarding the relative efficacy of religious legal procedures versus our public ones. I have serious doubts about the goodness of both.
With that said, I do not think we can allow any deviation from the duty to report serious crimes to the civil authorities for consideration of prosecution, at the very least never on religious grounds. What the religious authorities choose to do on their own is none of our business unless they deprive a person under our jurisdiction of their life, liberty, or property without his consent.
Any variance from this posture will lead us inevitably to places we do not want to go.
As a side-bar question, does anyone know if the offense of not reporting a crime (misprision of a felony in Texas to the best of my recall)is in fact routinely prosecuted? I have never heard of one here, but since IAMAL, I might have simply missed it.
August 25, 2010, 12:55 pmDavid Friedman says:
PubliusFL raises the issue of incapacitation. Two responses:
1. To the extent that both the private legal system and the putative criminal are functioning as part of a well defined subgroup–orthodox Jews, or Roma, or …–incapacitation is provided by either expelling the convicted offender or making sure that everyone in the subgroup is aware of his status. Whether that is sufficient for the objectives of the larger group depends on whether his criminal opportunities are limited to the subgroup. In some cases they are, because he is abusing trust that he only has within that subgroup or because he is unwilling to function outside it, in others not.
2. The private court system has the option of turning over the offender they have convicted for trial by the formal court system, which can imprison him.
I should add that a private legal system acting with state sanction can imprison people–and the Jewish communal authorities of the diaspora did. But that doesn’t apply to the particular case being discussed.
August 25, 2010, 1:06 pmDilan Esper says:
There is no such thing as a self governing community that is not bound by federal and state child abuse laws. And this is the case for obvious reasons. People who do terrible things (like Catholic bishops) have this way of claiming that their misdeeds were mandated by God and that secular authorities have no right to interfere and are impinging on freedom of religion when they do.
Jewish law, canon law, sharia, etc. don’t count when fundamental public safety interests kick in.
August 25, 2010, 1:16 pmGallileo says:
When I was taking youth leadership training for the Boy Scouts sponsored under the auspices of a Church, the instructor made a very interesting point:
“[The church] wants you first to report to them any discovered child abuse. The Scouts want you first to report to them any discovered child abuse. The government want you first to report to them any discovered child abuse. Exactly one of these organizations can put you in jail. Make your own decision.”
August 25, 2010, 1:17 pmAJK says:
Is there any reason you went to such effort to avoid mentioning which religion was involved?
August 25, 2010, 1:19 pmAJK says:
I don’t get it.
August 25, 2010, 1:27 pmAndrew says:
Tonya Craft.
August 25, 2010, 1:32 pmGallileo says:
It’s a statement about the relative power of private organizations, religious organizations, and the government. I suppose to be fully parallel, I would have removed the Scout’s name too.
The names of the organizations involved is not the important detail.
August 25, 2010, 1:33 pmDavid Friedman says:
“People who do terrible things (like Catholic bishops) have this way of claiming that their misdeeds were mandated by God and that secular authorities have no right to interfere and are impinging on freedom of religion when they do.”
And people who do terrible things (Like a Massachusetts prosecutor who ended up, if I remember correctly, as governor, or a Florida prosecutor who ended up as Attorney General of the U.S., or the Texas child protection authorities who took several hundred children away from their parents on the evidence of a couple of bogus phone calls, kept them after a unanimous verdict of the state appeals court held that they had no grounds to do so, and reluctantly gave them up after the state Supreme Court affirmed that verdict) have this way of claiming that their misdeeds were only done in pursuit of justice and the public good and that nobody has any right to interfere. And they mostly are immune from prosecution–in part because the prosecutors are part of their team, in part via sovereign immunity.
There are no human institutions that can be trusted not to sometimes do bad things.
August 25, 2010, 1:33 pmBB says:
David, the rabbis have been screwing up, covering up, just like the Catholic priests. For you goyim who are curious about the problems within the hermetic fundamentalist orthodox Jewish communities (there are tons of them) there are many places to get good information. You might start at “Failed Messiah” and search the archives for “sex” or “abuse”. Shmarya Rosenberg, the webmaster, links to tons of news reports from around the world.
And it isn’t easy for Rosenberg to gather and present these news items, eithereither. Believe it or not, Jewish religious law includes an entire corpus of law and commentary on the law against ratting out fellow Jews, what to keep from the goyim, and what to do to Jewish rats and race traitors, which includes the death penalty. Rabin, the PM of Israel was declared a race traitor by rabbis in Israel and was executed in accordance with Jewish law. And these religious leaders and the religious courts they rule are the ones that David wants to handle complaints of sex abuse by Jewish religious leaders.
Don’t contribute to the continuing abuse and suffering of Jewish children by Jewish religious predators. Insist on statutory reporting to doctors, healthcare workers and police.
August 25, 2010, 1:37 pmDavid Friedman says:
Gallileo points out, correctly, that only the state can put you in jail.
But the effectiveness of a deterrent depends on probability as well as punishment. A reasonably tight community, such as the Roma or some orthodox Jewish communities, can impose quite substantial punishments via various forms of expulsion or shunning. If bringing charges to the attention of the police means that you will almost certainly be punished for violating the norms of your community, and not bringing them to the attention of the police means a very low probability of being punished by the official authorities, the latter may be the more prudent choice.
August 25, 2010, 1:37 pmArthur Kirkland says:
I see no legitimate reason for a private social organization (Scouts) or a church to request that criminal conduct against children be reported to the group before it is reported to police. A desire to avoid scrutiny, or to improve a cover-up or a legal defense, does not constitute a legitimate reason. Any moral organization would direct that the first report be made to police. That qualifier apparently excludes many churches and other organizations.
Religious entities get a lot of free rides, including with respect to criminal conduct systematic (such as with the Catholic Church’s complicity in child abuse) and individual (did they charge that kook in Florida who hid the minor from her Muslim parents yet?). Regardless of criminal or civil liability, attempting to avoid or restrict law enforcement awareness of criminal conduct against children reflects self-serving depravity.
August 25, 2010, 1:40 pmA.W. says:
i suspect that anti-semites will use this against them, but let me offer a sympathetic semi defense. this tendency to say “keep jewish problems to ourselves” is probably a self-defense mechanism developed over the centuries. they wanted to handle it themselves 1) because they might not trust authorities to be fair, and 2) because of the tendency of bigots to hold every crime committed by a jew against all jews, thus by asking them to go to leaders first, they might prevail to everyone to keep it quiet.
Given the long history of anti-semitism in the world, the development of that kind of tradition seems, well, understandable.
But in America, it seems unnecessary too. and if i was the lawyer for their temples i would tell them flat out: you don’t want to give even the slightest hint of cover up. i think i get where it comes from, but it is a tradition that has outlived its usefulness, if i am right in my hypothesis.
August 25, 2010, 1:42 pmByomtov says:
David Friedman,
You write as if this were a civil dispute between members of the community who had agreed, implicitly or explicitly, to have such disputes settled by rabbis rather than the secular courts. Indeed, some of the comments by the rabbis read the same way.
It’s not. It’s a criminal accusation and needs to be handled by the civil authorities, imperfect or not. No self-defined community has the right to declare its members exempt from the laws of the land. Even you note that in most historical cases where Jews handled their own legal matters they did so under explicit authority from the sovereign, not on their own hook.
For the rabbis to interfere with a criminal investigation (especially one requested by the father of the alleged victim) is shameful and wrong. They have no business trying, in effect, to prevent the enforcement of secular law.
August 25, 2010, 1:54 pmRonald C. Den Otter says:
Very interesting. I’d like to know more about this. Anyone? My initial thought is that one isn’t inciting another to break the law under the Brandenburg test simply by urging or encouraging another person not to report a crime to the authorities but to seek self-help w/in that particular religious community. After all, as far as I know, there is no legal duty to report a crime that you witnessed or when you were the victim. David, I’m not clear on why that would count (in most jurisdictions) as obstruction of justice. I’m not saying that you’re wrong but I’d like to hear more.
August 25, 2010, 1:55 pmByomtov says:
David Friedman,
If bringing charges to the attention of the police means that you will almost certainly be punished for violating the norms of your community, and not bringing them to the attention of the police means a very low probability of being punished by the official authorities, the latter may be the more prudent choice.
Is this intended to be a serious argument for the correctness of concealing the allegations from the police?
August 25, 2010, 1:57 pmArthur Kirkland says:
This part of the underlying article is particularly troubling:
Those “others,” and their view of religion, are pathetic.
August 25, 2010, 1:58 pmRonald C. Den Otter says:
P.S.- My initial reaction is to be horrified at the idea that religious leaders would encourage members not to go to the civil authorities to report a crime, especially a felony. In the wake of what’s happened recently, and the obvious conflcit of interest, handling it in-house is almost always a bad idea.
August 25, 2010, 1:59 pmLTEC says:
So White people shouldn’t concern themselves with Blacks killing Blacks, and police should stay out of Black neighborhoods, and non-Jews shouldn’t concern themselves with Jews raping Jews, and (as in much of the United States and Canada) non-”natives” should let “natives” deal with their own kind, and we should all descend into the sort of tribalism that makes so much of the world a disgusting place. Why? Because our criminal justice system is greatly flawed.
Also, even if one likes tribalism, it makes no sense to say that it should be legal to break our laws.
August 25, 2010, 2:00 pmOrenWithAnE says:
Isn’t NJ a mandatory reporter State anyway?
August 25, 2010, 2:06 pmDrew says:
Wonder how many people here in favor of letting these orthodox self-police their child abuse scream shrilly when muslims want to self-govern with Sharia law…
August 25, 2010, 2:06 pmAlessandra says:
Not at all, it is a grave and pervasive problem in the justice system as well. However, with all the existing problems, there are professionals working in this justice system who have more experience and competence in dealing with such cases. What does a rabbi know about correctly assessing child abuse?
Not any more than any average person, which means they are quite clueless. It’s as if you decided to go tell a child abuse case to the supermarket manager down the road and let them decide. What’s the point? It will most likely be a setup against the interest of any child victim. And just a way to cover up the case, in order not to tarnish the image of the “community.”
Secondly, as Dilan Esper says:
There is no such thing as a self governing community that is not bound by federal and state child abuse laws. And this is the case for obvious reasons. People who do terrible things (like Catholic bishops) have this way of claiming that their misdeeds were mandated by God and that secular authorities have no right to interfere and are impinging on freedom of religion when they do.
Jewish law, canon law, sharia, etc. don’t count when fundamental public safety interests kick in.
August 25, 2010, 2:17 pmByomtov says:
LTEC,
So White people shouldn’t concern themselves with Blacks killing Blacks, and police should stay out of Black neighborhoods, and non-Jews shouldn’t concern themselves with Jews raping Jews, and (as in much of the United States and Canada) non-“natives” should let “natives” deal with their own kind, and we should all descend into the sort of tribalism that makes so much of the world a disgusting place. Why? Because our criminal justice system is greatly flawed.
Exactly. What do we care if some religious community wants to stone adulterers to death?
August 25, 2010, 2:22 pmAlessandra says:
I would say this intense anxiety and fear Matt displays about “witch hunts” are partially induced by the media, which does not report the overwhelming majority of cases where proof is quite substantiated for the abuse, but they involve Joe or Jane Doe as abusers. We only hear of an abuse case nowadays if the perpetrator is famous or a priest (with a few exceptions for school teachers). I think the latter, abuse in schools, also alarms people, so the media deign to comment on it and minimally carry out their responsibility in making people aware of the problem.
So any one case of these child abuse “witch hunts” is screamed away in the media, painting a very distorted picture of the entire panorama of cases, while the bulk of convictions is never mentioned, nor presented in details.
Same for cases of physical abuse of children or domestic violence. Unless the case involves enormous brutality, or a famous perpetrator, it is completely invisible in the media landscape.
August 25, 2010, 2:30 pmChris Travers says:
“true Law” meaning “true Law for Jews” right? I haven’t yet met any Orthodox Jews who make it a habit of trying to get everyone else to live under Jewish law. Maybe I’m travelling in the wrong circles…..
However state and federal law only work once the state and federal governments get involved, right? If one wants to have a self-governing community, one can try to minimize that involvement.
August 25, 2010, 2:36 pmmoh456 says:
If a religious leader “urged” his practitioners to avoid turning someone in, with the specific intent that the person not be subject to the secular judicial system, that’s pretty straightforward accessory after the fact (or obstruction of justice).
August 25, 2010, 2:53 pmChris Travers says:
Where the peace and security of the state are threatened perhaps. And certainly I wouldn’t argue that courts shouldn’t have jurisdiction to make these calls (esp. where states have strong religious freedom protections). But I think that puts the cart before the horse.
I doubt many are saying the government shouldn’t have the power to investigate, bring to trial, etc. However, I don’t think there is a personal duty to request that the government do this in any specific case. So what is the individual duty of each party?
August 25, 2010, 3:04 pmArthur Kirkland says:
The overriding points here are protecting children (who do not have the capacity to be saddled with a superstition-based belief system even if they appear to choose it) and effecting justice. If probable cause exists with respect to obstruction of justice, no leniency is appropriate.
Legalities aside, attending a religious institution that “attempts to pressure the father to drop the charges” with respect to sexual abuse of a child is especially daft. And the person(s) who circulated a flier declaring that it is the exposure of the religious institution to scrutiny or adverse publicity (rather than the reported sexual abuse of a child) that constitutes the “shameful thing” in this context has a serious flawed moral compass.
The rabbis who ostensibly proclaimed in writing that victims should delay alerting authorities to felonies, and that religious doctrine forbids citizens from cooperating with law enforcement personnel investigating serious crimes?One more point of evidence establishing that religion is responsible for at least as much bad as good.
Conclusion: Were I a pedophile, it would be a tough call choosing whether to rely on the Catholic Church or this Jewish community to facilitate my criminal conduct.
August 25, 2010, 3:05 pmArchitectJS says:
So when is the stoning scheduled?
August 25, 2010, 3:10 pmAri says:
Stop trying to conflate the issue of perfection with accountability and competence. This is simply an apologist smokescreen.
Obviously by its very nature the American legal system is imperfect. The rabbinic legal system has the same problem. This is not the issue. (Although since you brought it up, I should note that this becomes problematic in light of the doctrine – current amongst ultra-Orthodox Judaism, especially in Lakewood, NJ – of “da’at Torah,” which is akin to papal infallibility. The idea is that the pronouncements by rabbinic leaders on religious issues (sometimes the range is even broader) constitute the final, authoritative word on what is right. There is thus no way to appeal decisions rendered by rabbinic courts, even if corruption or lack of rigorous fact-finding is suspected).
In any event, as I indicate above, the issue here is of accountability and competence. The American legal system has a mechanism of checks and balances that, while obviously imperfect, are extremely effective at holding authorities accountable. There are exceptions, but those are just that – exceptions.
The rabbinic courts, however, are accountable to nobody. And as much as David Friedman might argue (disingenuously) that “community norms,” or some such vague notion, hold these rabbis to a satisfactory standard, the fact of the matter is that the rabbis constituting these courts are revered spiritual leaders of the community, and are, themselves, responsible for shaping “community norms.” There is thus no way to hold these figures accountable.
Finally, we need to discuss competence. Criminal justice in America incorporates the efforts of the police force, legal system, penitentiary system, etc. The secular legal system is built to efficiently investigate, prosecute, and punish crimes (and no they’re not perfect; see above). The rabbinic courts have no such competence. Indeed, they have spent so long brushing these problems under the rug and covering up for otherwise respected religious leaders accused of abuse that any time that they might have had to develop any such competence has been wasted.
The rabbinic courts are barely competent to investigate these crimes, and even if they were, as someone earlier pointed out, they cannot punish offenders. Even if they tried, since there is no established hierarchy amongst the rabbis involved, we could end up with a situation where one rabbi condemns a sex offender, while another lauds him as a martyr who is simply the subject of a witch-hunt. For this reason, as well, I am highly dubious of David Friedman’s notion that rabbinic law is somehow able to enforce justice through community norms.
August 25, 2010, 3:13 pmChris Travers says:
How much specificity is needed?
If I say, “It is generally a good thing not to cooperate with law enforcement. One should not snitch on parents, children, family members, or neighbors.” Is that obstruction of justice if I am talking about abstract sense? If someone asks me what I think about a specific case and I repeat my well-known thoughts, is that obstruction of justice? I would think that both of those would be protected under Yates v. United States and Brandenburg v. Ohio.
August 25, 2010, 3:14 pmAri says:
After reading the article, I would caution fellow commenters: the community referred to here is situated in Lakewood. This is an especially extreme community of “Chareidi” (or “Hareidi”), ultra-Orthodox Jews.
Therefore, as a matter of accuracy, they are not to be confused with other “Orthodox Jews,” or “Modern Orthodox Jews,” etc.
August 25, 2010, 3:15 pmAri says:
This is inaccurate as a matter of Talmudic law, codified by the medieval Jewish authorities, and observed by rabbinic Jews to this day, that: “Dina de-malkhuta dina,” or “the law of the land [lit. "kingdom"] is Law.”
Of course Jewish authorities over the centuries have debated the extent of this rule, but it is a rule nonetheless. Thus, to say that Jews consider gentile society “lawless” is, to my mind, inaccurate.
Although as Professor Volokh has pointed out in prior posts on religious exemptions, no view of religion, no matter how fringe and ridiculous, can legally be considered illegitimate as long as it is – according to various criteria – sincerely held. This is a helpful concept to bear in mind when examining some pockets of contemporary ultra-Orthodox Judaism.
August 25, 2010, 3:23 pmDavid Friedman says:
It is intended as a response to an argument based not on correctness but on prudence, as you can easily see by reading the post I was responding to.
August 25, 2010, 3:31 pmLarryA says:
Keeping child abuse private is also the single most effective way to lure pedophiles into your organization and give them opportunities to molest your children.
Every organization dealing with children risks attracting people who would harm them. The best tool to deter such is a clear and often-stated policy of immediately reporting allegations to law enforcement and fully cooperating with investigations. If you have a good law enforcement agency it has the added benefit of quickly clearing up any false accusations, thus protecting innocent members. (Naïve? Not as naïve as relying on a private organizational justice system.)
There’s no better way to say “Don’t mess with our kids” than an occasional conviction.
August 25, 2010, 3:35 pmHarryEagar says:
You just noticed? Read ‘The Zaddik’
August 25, 2010, 3:40 pmyankev says:
Aren’t there laws in some states making it a crime not to report suspected child abuse if one is a teacher, medical care provider or in another position specified by the statute? This is not necessarily to agree either with byomtov or with the authorities named in the article. Rabbi D. Cohen best sums up the motivations of those authorities who oppose going directly to the secular authorities. Jewish law governing this issue — not just in terms of sexual abuse but other crimes as well — are a complex and controversial area, as is the question to which the First Amendment requires an exemption from generally applicable law penalizing failure to report. I do not know enough to have an informed opinion on either the Jewish or constitutional law issue.
August 25, 2010, 3:45 pmDavid Friedman says:
I think I was the first person in the discussion to defend the policy that Eugene was criticizing, and I certainly don’t scream shrilly at the idea that Muslims should be permitted to put disputes among themselves to experts in Muslim religious law. As in the case of orthodox Jews, the issue is not whether they should be immune from ordinary law but whether they should be free to settle disputes among themselves via an alternative dispute resolution system.
As it happens, one of the interesting features of historical Muslim legal systems is that they were polylegal. Sunni Muslims recognize four mutually orthodox schools of law, with differing views on various legal questions. A large medieval city under Muslim rule would be likely to have court systems for all four, each deciding disputes among parties in communities that recognized that school, as well as additional courts for Shia, Jews, and Christians. The idea that it is essential for a nation to have a single legal system applying to everyone within its borders is, so far as I can tell, a modern one–there are non-Muslim examples as well of polylegal systems.
August 25, 2010, 3:46 pmDavid Friedman says:
At a slight tangent, for those interested in legal systems other than ours … .
Under imperial Chinese law, it was a criminal offense to report your parent for a crime–even if the parent was guilty.
August 25, 2010, 3:53 pmAlessandra says:
Yes, the laws vary by state. In some states, every adult is required to report a suspicion of abuse. In other states, it varies depending on a set of professional categories.
http://www.childwelfare.gov/systemwide/laws_policies/statutes/mandaall.pdf
August 25, 2010, 4:20 pmRonald C. Den Otter says:
Good to know. I don’t know what the law is here in CA. If a priest, then, had a suspicion that another priest had abused one of the alter boys –I know that this is a wild hypothetical but please bear w/ me– he commits in a crime in some jurisdictions by failing to report it. But what about a priest who tells his parishioners not to report such crimes in the abstract? Is that inciting others to break the law? I doubt it, given what the Court said in Brandenburg. I have to think that that speech is constitutionally protected, for better or for worse, probably for worse. Has such a law ever been challenged on free speech grounds?
August 25, 2010, 4:41 pmRonald C. Den Otter says:
P.S.- Thanks for the link, Alessandra. Priests do have such a legal obligation to report child abuse under the CA penal code.
August 25, 2010, 4:46 pmmouthpiece says:
David Friedman: “. . . the royal authority was used to enforce verdicts, including capital punishment, given by the Jewish courts.
Isn’t that how Jesus was crucified? Although, as a Christian, I suppose I shouldn’t be complaining.
August 25, 2010, 4:55 pmArthur Kirkland says:
It is difficult to believe that this line of argument recurs with respect to a circumstance involving a repulsive felony and an 11-year-old victim.
Even if the line at which adults are entitled to have their superstitions humored (with respect to snake-handling, refusal of medical treatment, etc.) at the expense of customary standards is in play here, an 11-year-old lacks capacity to consent to such silliness. Parents are entitled to indoctrinate their children, but no one has any right to engage in or facilitate the sexual abuse of children, even if religion is involved.
August 25, 2010, 5:04 pmNot Mentioning the Religious Group Involved | theConstitutional.org says:
[...] the comments to my “Some Religious Leaders Urging People to Delay Going to the Police with Child Sex Abuse Allegation…, a commenter asked: Is there any reason you went to such effort to avoid mentioning which religion [...]
August 25, 2010, 5:12 pmChris Travers says:
Question:
Under Smith v. Employment Division of Oregon, the court differentiated the case at hand from Yoder v. Wisconsin by suggesting that the latter was a hybrid rights issue while the former was merely attempting to get exemption from generally applicable laws. Could such a hybrid right be argued in this case? I mean one generally has a right not to be compelled to speak. Is that given special force where religion is involved?
August 25, 2010, 5:30 pmDavid Friedman says:
“The American legal system has a mechanism of checks and balances that, while obviously imperfect, are extremely effective at holding authorities accountable. ”
You are telling me that the Texas authorities who held prisoner two adult pregnant women until their children were born–by claiming, without evidence, that they were minors–are now in jail? The Chicago police who, back when I was a grad student, came to the door of an apartment of sleeping people at night and opened fire through it, killing two people, were jailed? The rest of the Texas child protective authority who repeatedly lied about the facts of the FLDS case in order to justify what they were doing? The Secret Service agents who seized all copies of a not yet published book (The Steve Jackson Case) in direct violation of federal law, and held them for several months? The people responsible for the Massachusetts and Florida Witch Hunts? The NSA folk who deliberately violated the Foreign Intelligence Surveillance Act—statutory penalty per violation of up to five years in jail–repeatedly by intercepting phone calls with one end in the U.S.? The President who repeatedly violated FISA by knowingly using information obtained in violation of it? The people responsible for getting phone companies to reveal customer information in violation of federal law? The phone companies–the ones immunized from their civil liability, after the fact, by act of Congress? The Texas crime lab technicians who repeatedly provided the police with the bogus evidence they wanted to convict defendants? What’s the appropriate penalty for deliberately providing bogus evidence for conviction in a capital case?
Do you want more examples? “Held accountable” in the context of malfeasance by government actors means, with luck, that they lose their jobs–for acts that would have put private actors in prison–and quite often that they get promoted. One can perhaps argue that the U.S. political and legal system is no worse than others and better than some, but to claim that it is “extremely effective at holding authorities accountable” is a statement of religious faith made in defiance of massive real world evidence.
August 25, 2010, 5:50 pmChris Travers says:
Not just Brandenburg, but Yates too. In Yates, the court held that speech intended to cause someone to BELIEVE something is generally protected. Consequently telling everyone “It will be a great day when the government is violently overthrown by the people” is protected speech. “It will be a great day when the Jewish menace is eradicated once and for all” would seem to be too (and is closer to the Brandenburg case).
If I am free to advocate the desirability of genocide or violent revolution, why am I not free to advocate the desirability of non-cooperation with police officers?
August 25, 2010, 6:05 pmRonald C. Den Otter says:
You are, I think, in the abstract. But the context matters, and if you were to encourage, say, the victim of a crime and those who might know something about it or who witnessed it not to report it, Brandenburg and Yates might not protect what you said. But if none of them are under a legal duty to report the crime, then you couldn’t be inciting them to commit a crime. But let’s say that a few members of your congregation were subpeonaed to testify and then you told them not to cooperate w/ the investigation. I don’t think that Brandenburg would protect you. At least, it a close call.
August 25, 2010, 6:25 pmDay Break says:
@Arthur Kirkland
“Parents are entitled to indoctrinate their children, but no one has any right to engage in or facilitate the sexual abuse of children, even if religion is involved.”
–Who said anything about allowing the abuse of children? David Friedman plainly stated that “the issue is not whether they should be immune from ordinary law but whether they should be free to settle disputes among themselves via an alternative dispute resolution system. and where/ when the alternative dispute resolution system fails he said “the Rabbinic court would produce a verdict and either it would be enforced by community pressure or, if the verdict was guilty and community pressure insufficient to enforce it, the offender could then be turned over to the official legal system.”
@Larry
–”There’s no better way to say “Don’t mess with our kids” than an occasional
convictioncastration.”Seems to me that a great many on this board are pessimistic to the idea of community justice. Therefore, I propose a hybrid system: The authorities provide the forensic investigation work and the community pronounces and imposes the penalty. It’s the best of both worlds because you get the competence and transparency of the official system and the wrath of community.
August 25, 2010, 6:30 pmChris Travers says:
Sure. On the other hand, if one had said many times that testifying against members of the congregation was forbidden and then when asked what I thought, I were to say, “This is not the time or place to repeat what I have said many times” it would seem to my mind more protected.
But there’s an interesting element here. Smith v. Employment Division of Oregon suggests that religious freedom has more force when coupled with other Constitutional rights (it’s on this basis that the court differentiated the case before them from the cases like Yoder v. Wisconsin). If it’s already a somewhat close case, is it possible that a hybrid rights theory (based on Smith) would allow such an argument to prevail?
August 25, 2010, 6:38 pmArthur Kirkland says:
Counseling others to refrain from notifying the police immediately or to refrain from cooperating with police or prosecutors, or referring the matter to anyone else for handling before the police are alerted, constitutes facilitation of child abuse. Given the longstanding record of the Catholic Church in this regard, it is difficult to believe that anyone would advocate “private” handling of felonies that abuse children.
August 25, 2010, 7:08 pmmoh456 says:
Brandenburg doesn’t necessarily apply here. “Urging” others to keep quiet about crime, depending on the circumstances, can be a crime in and of itself regardless of whether it encourages others to commit imminent lawless acts. A more clear cut example would be if a corporate manager finds out about malfeasance at the company from underlings, threatens to fire anyone who goes to the feds or SEC regarding the known malfeasance, and does this with the intent to protect the potentially guilty parties from justice. That person is an accessory after the fact, and has no 1A protection so far as I can tell.
Specifically an AAF is someone who “receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment” (knowing that a crime has occurred).
The situation here isn’t as clear as that, but it’s at least potentially applicable. If a rabbi or priest or whoever continues to tell practitioners not to report someone to authorities who they know has committed an offense, and do so in order to prevent that person’s trial (in a secular court of law, implicitly) then they are criminally liable.
August 25, 2010, 7:10 pmRonald C. Den Otter says:
“But there’s an interesting element here. Smith v. Employment Division of Oregon suggests that religious freedom has more force when coupled with other Constitutional rights (it’s on this basis that the court differentiated the case before them from the cases like Yoder v. Wisconsin). If it’s already a somewhat close case, is it possible that a hybrid rights theory (based on Smith) would allow such an argument to prevail?”
But in Smith, it’s crystal clear that there is no constitutionally required exemption on religious grounds from generally applicable criminal laws. If that’s the case –in other words, the disproportionate impact is constitutionally irrelevant– then what we have in our hypothetical isn’t a close case and free speech element won’t make much of a difference at all unless it can stand on its own. When Yoder was decided, technically at least, strict scrutiny was the applicable standard of review, and as I see it, Smith, in effect, overturned Yoder and other free exercise cases that required a heightened standard of review.
August 25, 2010, 7:12 pmRonald C. Den Otter says:
Do you mean Brandenburg isn’t applicable at all or that the speech in question would pass all three parts of the test? Urging people to keep quiet about a crime is in some instances inciting them to commit a crime if they’re under a legal duty to report it, right? If so, then Brandenburg applies, but that doesn’t mean that Brandenburg will save the speech in question. I think that we can agree that this is a close one and it would depend on the circumstances. When Clinton suborned perjury, that wasn’t constitutionally protected speech. But if a rabbi or priest in the abstract tells the members of the congregation that in general, they should cooperate w/ the authorities in criminal investigations, that has to fall under the protection of Brandenburg.
August 25, 2010, 7:19 pmmoh456 says:
I mean that Brandenburg is not necessarily applicable, basically in the way you’ve elaborated. If the priest or rabbi’s speech is itself criminal obstruction, Brandenburg is irrelevant.
This seems right to me because in that situation, removed from a specific crime, the rabbi’s speech would not itself be criminal obstruction, and Brandenburg would hold it protected.
August 25, 2010, 7:26 pmRonald C. Den Otter says:
Of course, any creative law professor could come up w/ some borderline cases for his or her exam… Man, do I miss law school :)
August 25, 2010, 7:57 pmDavid Newton says:
Obstructing justice is doing something which actively impedes the progress of a specific investigation. It requires a positive action to be taken in most circumstances, simply sitting on something you know and not telling the police about it would not be obstruction of justice in many cases. As others have noted there are laws which mean that sometimes not doing something is actually obstructing justice. For example as an accountant in the UK I have a professional duty under the Money Laundering Regulations 2007 to report suspected cases of money laundering to the Serious Organised Crime Agency. If I suspect money laundering and do nothing then that is the English law equivalent of obstructing justice.
Thinking about religious leaders and their congregations consider the following scenario. A religious leader knows that some members of their congregation are under investigation on suspicion of child abuse offences. That religious leader knows that other members of the congregation could provide relevant testimony which would help to convict the accused if they chose to do so and is also aware that it is pretty general knowledge in the congregation that something big is going on. As part of a religious service sermon the religious leader talks about the evils of cooperating with the secular state when it comes to the business of the religious organisation. They talk about the necessity to remain separate and apart from the secular world. They then give an example of a situation where cooperating with the secular authorities would be wrong and mysteriously the example has facts which exactly fit what their congregation members are accused of. They specifically say that talking to the police in a situation like the example given would be wrong and should not be done.
There would be a significant hurdle to prove mens rea and actus reus in that example and until the religious leader gave the specific example their speech would be protected under the first amendment. Nevertheless that is the sort of conduct which would count as obstruction of justice by a religious leader. As an example of how deep the rot of misconduct and obstruction of justice can go can go see the reaction to the report in Northern Ireland about the Claudy bombing of 1972 in which a Catholic priest was deeply implicated.
August 25, 2010, 8:03 pmDilan Esper says:
And people who do terrible things (Like a Massachusetts prosecutor who ended up, if I remember correctly, as governor, or a Florida prosecutor who ended up as Attorney General of the U.S., or the Texas child protection authorities who took several hundred children away from their parents on the evidence of a couple of bogus phone calls, kept them after a unanimous verdict of the state appeals court held that they had no grounds to do so, and reluctantly gave them up after the state Supreme Court affirmed that verdict) have this way of claiming that their misdeeds were only done in pursuit of justice and the public good and that nobody has any right to interfere. And they mostly are immune from prosecution–in part because the prosecutors are part of their team, in part via sovereign immunity.
Not comparable. There isn’t any systemic and repeated cover ups of sexual abuse by prosecutors in this country. There is with the Roman Catholic Church.
In any event, it is prosecutors’ JOB to handle sex abuse cases. It is NOT the job of religious authorities. “[Jewish] [Canon] [Sharia] law” is a system of kangaroo courts who have not received any transfer of sovereignty from the people (and since the deity they are premised isn’t accepted by all of their fellow citizens, they didn’t get any from Her either).
August 25, 2010, 8:21 pmBored Lawyer says:
Actually, it goes farther than that. Acc. to Talmudic law all non-Jews have the legal status of “Bnei Noach” — sons of Noah, since he and his family alone survived the flood. They are all obligated to keep 7 commandments. (Actually, six were already given to Adam.) One of them is to establish a Court system to enforce the other laws and general civil law.
In the 1970s, the death penalty was under serious consideration in NY State. The governor asked a number of religious figures their opinion on the matter. Rabbi Moses Feinstein, who was then considered the pre-eminent Orthodox authority in the world, issued a responsum (since published) where he discussed the matter and concluded, largely based on the requirement of Bnei Noach to establish courts, that it would be warranted for NY State to establish a death penalty.
So the idea that Orthodox Judaism considers the gentile world to be “lawless” is absurd on its face.
August 25, 2010, 8:35 pmByomtov says:
Daybreak,
David Friedman plainly stated that “the issue is not whether they should be immune from ordinary law but whether they should be free to settle disputes among themselves via an alternative dispute resolution system.
Red herring. This is not a “dispute.” A dispute is when I think you did a lousy job painting my house and I want you to fix it or repay me. Of course we are free to use an alternative resolution system if we both agree to do so. No one denies that.
Here we have, possibly, a serious crime against a young victim. The rabbinical court has no business taking control of it, even less pressuring the father to stay away from the civil authorities.
August 25, 2010, 9:15 pmOwen H. says:
As General Napier said, you may follow your custom, and then we will follow ours.
August 25, 2010, 10:11 pmAndrew J. Lazarus says:
I’m trying to understand the purpose of David Friedman’s catalogue of miscarriages of justice. I don’t think he’s trying to say that the standard criminal justice system is that bad, since it is the same system that he is willing to use when the pervert rabbi molests a Muslim child, or the Jewish victim stumbles into a pedophile Catholic priest, and there isn’t any one private court that suffices.
At the same time, I am reminded by the catalogue of Winston Churchill saying
Note the lack of comparison to miscarriages of justice in the rabbinical judicial system. You think they are immune from error and abuse of power? Rubbish. Even not mentioning the experience of the Catholic Church, accusations of sexual abuse against Jewish religious teachers have been happening for years, and so far the emphasis has been on (a) hushing everything up and (b) having rabbis insist nothing be said or done that would diminish the authority of rabbis. Little effort seems to have gone into protecting future victims, nor punishment, nor deterrence. This is a case of holding to radical libertarian dogma against all evidence. With respect to the rabbinical courts, Friedman is keeping a mind so open his brains have fallen out.
August 25, 2010, 11:21 pmReaderY says:
Dina de-malkhuta dina addresses property law, not criminal or other aspects of religious law.
The prohibition on turning Jews in to secular authorities dates from the time of the Romans during the bitter suppression of the Jewish revolts during a period when the Romans employed informers to feret out people practicing Judaism. It was reinforced by the suppressions of the Middle Ages.
It is a delicate issue. On the one hand, insular societies sometimes become corrupt and their authorities end up becoming harborers of crime. On the other hand, mainstream society sometimes does the same thing. The difficult problem is we’re usually sometimes in between the two extremes, where the insular society isn’t all heros, but mainstream society isn’t all heros either.
In general, the country has been relatively tolerant of ditinctive insular religious societies — Hareidi Jews, Amish, and many others – who maintain a de facto internal legal system despite the fact that problems sometimes arise.
The Holocaust tended to reinforce the view of the Hareidi wing of the Jewish community not to place all their chips in the pot of the secular society around them, to keep something of a distance.
One hopes they don’t become corrupt and abusive. But one hopes secular society doesn’t become corrupt and abusive either.
It may make sense not to place all ones eggs in one basket.
August 26, 2010, 12:15 amDavid Friedman says:
I think the obvious implication of that quote, although not the one most people draw, is that all forms of government work pretty badly, hence one should, so far as possible, avoid doing things via government. It is, for instance, an argument for vouchers over public schools, or for an entirely private schooling system over vouchers.
It’s also an argument for not assuming that if you take a controversy to the government courts you will get a just result. Hence, in comparing that to private alternatives, including use by the parties to a dispute of non-governmental mechanisms for resolving it, you should assume that neither method can be counted on to give a just outcome, and choose between them allowing for the likely faults of both.
Various people have been objecting that a criminal charge isn’t a dispute between parties. But if I think you are guilty of a criminal offense and other people, including you, think (or say they think) that you are not guilty, there is a dispute between me and those other people. One possible way of resolving that dispute is to agree to take it to some private court, rabbinical or otherwise, and accept the outcome–for me to agree not to accuse you of the offense to the official authorities if the private court rules against me, and the others to agree not to object to my doing so, and to cooperate with the prosecution, if it rules for me.
If one is confident that official courts can always be relied on, that solution looks unattractive. If you think they can’t, and that the private court is more reliable, it may be attractive.
Andrew writes:
“I’m trying to understand the purpose of David Friedman’s catalogue of miscarriages of justice.”
The immediate purpose was to respond to what struck me as an absurdly pollyanish view of the legal system. The further purpose was to suggest that, since the legal system did not have effective mechanisms for punishing even serious malfeasance by its own people, there might be serious risks to bringing a dispute to the attention of that system.
I’m not arguing that it is obviously right for orthodox Jews to take their disputes to their own courts, I’m arguing that it is not obviously wrong. Many (not all) of the arguments on the other side seem to me to depend on an essentially religious belief in the virtue and moral authority of the state. The fact that the state says something is illegal tells me essentially nothing about whether it is or is not right to do it—right and wrong are not made by act of Congress.
August 26, 2010, 12:58 amRich Rostrom says:
This is not a religious issue, it’s an issue of tribal loyalty, enforced by authoritarian clergy who are the designated leaders of the tribe.
As Ari noted, this about “accountability and competence.”
The American system of justice was formed to serve the people. Police, prosecutors, and judges answer to the politicians, who answer to the voters. It still doesn’t work very well, but a lot of formal checks and balances and safety nets have been incorporated, and there is recourse for errors and abuses. The operations of the system are recorded in detail, for public inspection.
Who do rabbinical “judges” answer to? From whence comes their authority? Many hyper-Orthodox rabbis are scions of rabbinical “dynasties” – in effect hereditary rulers. They are not very accountable, nor is their competence assured.
Such private authorities are no general improvement on the state. And when such authorities demand that members give them first jurisdiction, their legitimacy becomes questionable.
August 26, 2010, 3:09 amChris Travers says:
Completely agreed, btw.
I guess people need something to believe in. When all else fails, the state works well enough.
At least in theory I would expect that rabbis would be answerable to the community at large as with leaders of any tribal group. Whether this is formally the case or not, I would be surprised if it is not actually the case.
August 26, 2010, 3:34 amOwen H. says:
I am generally ok with religious groups having councils for dealing with civil disputes between members, and see no difference between a Jewish group or a Muslim one doing so. That, after all, is what sharia councils here or in Canada actually do, as opposed to hysterical claims about imposing sharia law.
But this involves a criminal matter, and most importantly, a child victim. There is no excuse, no acceptable rational for keeping such “in house”.
August 26, 2010, 9:08 amAndrew J. Lazarus says:
I am trying to decide whether your reference to religious belief is intended or unintended irony. I don’t think the arguments presented have much to do with the virtue of the state, but rather the purpose of the state, with the side observation that our particular state has a system that is better in the administration of justice than most (including, I dare say, the courts of any particular cult). The State is supposed to have a monopoly on the use of certain types of force, including the lengthy (I suggest lifetime) imprisonment that is warranted for child molesters. Or are you also suggesting that child molestation is not malum in se, but only by act of Congress (sic, it would be the New Jersey legislature here)?
August 26, 2010, 10:00 amDavid Friedman says:
So far we agree–except that I think you have described both sides of the argument. On your side the enforcers are not called clergy–but they get to enforce their leadership by locking people up or executing them. On the other side they are limited to persuasion and social pressure.
“The American system of justice was formed to serve the people. ”
That’s your view of it. Similarly, the Orthodox Jews (or Muslims or Amish or …) believe their system was formed by divine command and with divine aid. I’m not sure you have much more evidence on your side than they do.
“The operations of the system are recorded in detail, for public inspection.”
Sometimes. As you may know, there have been a number of recent cases where people have been charged with crimes carrying serious penalties for the offense of recording a police officer acting in public.
But in any case, I offered in a recent post a list of abuses, all, I think, well documented—the shooting was of Black Panthers in Chicago back in the late sixties—and none of which resulted in criminal penalties, or even charges, for the offenders, all of whom were acting as agents of the system you are defending.
“Who do rabbinical “judges” answer to? From whence comes their authority?”
In the modern American context, they answer to their followers, since the only authority they have is that voluntarily given by those who accept their authority. People do, after all, move in and out of religious communities, or shift allegiance from one leader to another. The Amish, who have a well established policy of not reporting crimes by or against their members to the authorities, provide a particularly good example; different Amish groups have different interpretations of the implications of their beliefs, and believers can and do shift among them.
Who do the authorities you think so highly of answer to–in practice?
In theory, enforcers are themselves subject to the law–the Chicago policemen who killed two people would, in theory, have been arrested, charged, and tried for murder or perhaps manslaughter. That didn’t happen. The only criminal case was against the D.A. who tried (unsuccessfully) to cover up the case. The Texas authorities who seized several hundred FLDS children were, at least arguably, guilty of attempted genocide under U.S. law, since destroying a religious or ethnic group by taking away its children is one of the offenses that qualifies. They have not been and will not be tried for that offense. The use of criminal law to control abuses by law enforcement has the obvious problem that it relies on an organization choosing to act against its own members.
The alternative is the political mechanism. You agree that it does not work very well. That, I think, is a serious understatement. In a polity of three hundred million people, even in a polity as small as a small U.S. state, Democratic voting is a very clumsy control mechanism, for reasons familiar in (among other places) public choice theory, and reflected in the Churchill quote already discussed. The individual voter knows that his vote is very unlikely to affect the outcome of an election, and so has little incentive to invest large amounts of time and effort figuring out which side of a dispute—people who do bad things do not generally agree that they have done bad things—to accept.
August 26, 2010, 10:47 amDavid Friedman says:
When I observe people making, with great confidence, claims that do not seem to me to be supported by evidence or argument, the obvious conclusion is that I am observing statements of religious faith. Not all religions depend on belief in gods.
You know this how? In the case of Jewish law, probably the best documented legal system in the world, we have something over two thousand years of detailed records of disputes, rulings, treatises, … . Since your basis for believing in the superiority of the current state legal system isn’t religious faith, presumably you have examined that record, and the corresponding if somewhat shorter record for Islamic courts, and the performance of Amish institutions, and … in order to form the reasoned conclusion that your preferred system is, you dare say, superior to all of them?
“Is supposed to” meaning “says that it does.” Similarly, the Jewish and Muslim legal systems are supposed to have the authority of divine revelation.
The definition of child molestation is indeed by act of the legislature. As you may know, in the FLDS case, the Texas legislature raised the age of consent to marriage, as well as making other legal changes, with the deliberate purpose of driving out the FLDS–stated in the legislative summary of the act in which the changes originally appeared (that act didn’t pass, but several parts of it were incorporated in other legislation). Under current law in a variety of states, including Texas, sexual acts that would have been entirely legal in those states a few decades ago, or in many (perhaps most) past societies, are now criminal.
Let me suggest to you (and others) a scenario designed to let you see the world from the perspective of people who lack your faith in the moral authority of the state. Suppose you were part of a community of modern Americans who happened for some reason to be living in a society which regarded any sex outside of marriage as a serious crime. Leaders of your community urge its members not to report to the authorities members of the community who they suspect are committing that crime.
The arguments you and others offer here would seem to apply to that situation, at least if we assume that the society in question has democratic institutions. Would you find them convincing in that situation–agree that anyone suspected of having an affair should be reported?
August 26, 2010, 11:13 amDavid Friedman says:
More precisely, it involves an accusation of a criminal matter. Failing to convict people of crimes they have committed can have serious adverse consequences, but so can convicting, or even trying, someone for a crime he has not committed.
Suppose we take the question out of the religious context. You have reason to suspect someone you know of a serious crime. It occurs to you that, if he is not guilty, accusing him to the police will have serious and undeserved bad consequences. So before doing so, you go to a friend whose judgment you have a high opinion of and discuss with him your reasons for suspicion. If he thinks they are inadequate, you don’t go to the police.
Do you see no acceptable rationale for acting that way?
August 26, 2010, 11:26 amDavid Friedman says:
Since the moral authority of the state isn’t accepted by all of their fellow citizens—I, for instance, don’t accept it—your argument would appear to imply that the state has no sovereignty either.
August 26, 2010, 11:31 amDavid Friedman says:
Let me step back, for a moment, from the detailed arguments we have been having, to suggest three different reasons why people choose to take disputes to a non-governmental authority:
1. They don’t trust the government court to reach a correct answer on the facts, or think that its procedures are in various ways more costly than the alternative.
The obvious example here is arbitration of commercial disputes.
2. They don’t agree with the legal rules that the government court enforces.
One example would be religious Jews. Another would be people in an illegal market—marijuana producers, say—who would prefer to settle their disputes outside of the court system. I have argued elsewhere that so-called “organized crime” is in part a system for arbitrating disputes among people in illegal markets.
3. They don’t agree with the approach to enforcing the law applied by the court system.
This, if I understand it correctly, is the Amish view. They disapprove of the whole system of criminal penalties and so try to avoid invoking it, even if they believe someone has actually committed a crime.
It’s worth asking, in each of these cases, whether the arguments people have been offering against the use of non-governmental mechanisms for settling disputes apply. It’s also worth asking whether the conclusion depends on whether or not you happen to agree, in the particular case, with the position of the court. I suspect at least some people would respond differently to the case of participants in a criminal market according to whether or not they agree with the law that makes it criminal–would approve of keeping disputes among marijuana producers out of the courts but not disputes between hit men and their employers.
Finally, I notice that a lot of people put considerable weight on the distinction between criminal and civil disputes. I don’t know how many of them have thought seriously about why that distinction exists in our legal system. Some might be interested in a chapter on that question in one of my books–a late draft is webbed.
(The published version of the book is also webbed as page images, but I think the HTML is more readable)
August 26, 2010, 11:51 amDay Break says:
Questions:
1. If the enforcers in the Catholic Church castrated and beat the offending priests in question to a pulp, would you support “private justice” for sexual abuse?
2. In addition to the abuses of the Catholic Church, why not mention the failure of the various child protective services to protect children?
3. Why not mention the corruption of the police in committing crimes as well? So with the police known to commit crimes why should the people look to the “authorities” for justice? Is the
Also, I think you missed my suggestion on a hybrid system.
August 26, 2010, 11:54 amChris Travers says:
And sex abuse in foster homes too which (like abuse by Catholic priests) is certainly not common but not unheard of.
August 26, 2010, 12:36 pmChris Travers says:
Added your published book to my reading list (unfortunately will take me about three years to get to at present rates). It looks fascinating.
One thing I am wondering about is whether people assume the moral authority of the state because they assume the moral authority of parents. On other words, whether childhood views of parents get transferred to the state. Wilhelm Reich (“Mass Psychology of Fascism”) suggested that authoritarian families were the foundation of every authoritarian state (and this is why he saw debates over sexual morality in the Weimar republic as being closely tied to the rise of the NSDAP). More recently M. Elaine Combs-Schilling has has suggested a link between extremely patriarchal families and the survival of the Moroccan monarchy. The question of the connection between family values and the view of the state as moral authority is an interesting one. Perhaps it’s true, to paraphrase Dan Quayle, that it’s important to realize the importance of bondage between a mother and her child…..
August 26, 2010, 12:50 pmAndrew J. Lazarus says:
So is the definition of the various types of homicide. My question is whether murder (and molestation of an 11-y.o.) are acts that are obviously criminal. You are the one who found it convenient to introduce relativistic notions of “right and wrong” and the possibility that the rabbinic court would not agree with the secular court. So, OK, would you like to argue that we should tolerate sex with young children if the rabbinical courts agree, or was this part of a rather lengthy campaign of sophistry that you pursue in this thread?
August 26, 2010, 12:59 pmChris Travers says:
I thought “murder” implied criminality, so if it is murder, it’s obviously criminal, but that’s assuming the conclusion, right?
August 26, 2010, 1:16 pmByomtov says:
David Friedman,
Let me step back, for a moment, from the detailed arguments we have been having, to suggest three different reasons why people choose to take disputes to a non-governmental authority:
All three of your reasons begin with the word “they.” But a crime victim may be in no position to be part of “they,” – the victim may be dead, for example. Besides, you omit an important reason – enormous social pressures that come from other members of an insular group – including family, employers, etc. Those pressures are real, and as much as you prate about voluntary decisions, in many cases those pressures will produce decisions that cannot reasonably be described as voluntary.
By the way, your idea that organized crime is a mechanism for settling disputes surrounding illegal activities, since such disputes cannot be handled by courts, is not inaccurate, but it’s not the brilliant original insight you seem to think it is either. It’s a widely understood concept. So lower the ego meter a bit.
August 26, 2010, 1:56 pmHarryEagar says:
Yes, as seen in Brooklyn in the Zaddik kidnapping. Plus, add (where the prosecutor is elected) the reluctance of the non-religious authority to use its rightful authority for fear of irritating enough voters to lose the next election, which may also have been in play in the Zaddik case.
August 26, 2010, 2:03 pmDavid Friedman says:
“Murder” is criminal by definition, but killing is neither obviously criminal nor obviously immoral. And even murder isn’t always and obviously immoral. In my view, the Nurenburg tribunal was a travesty of justice, since there was no serious possibility that people on the winning side would be tried for any war crimes they had committed. But I see no reason why some of the defendants shouldn’t have been murdered.
So far as “molestation” of an 11-year old, I don’t know whether sex with an 11-year old is currently legal anywhere in the U.S.—there are states which permit marriage at a younger than normal age with court approval. But there have been lots of past societies where sex with someone that young was legal—Mohammed apparently consummated his marriage with Aiesha when she was younger than that. I don’t think it is obviously wicked—that would depend very much on the circumstances and the society.
And I’m not arguing that “we should tolerate” anything. I’m arguing that it isn’t unreasonable for people who either distrust the reliability of the courts or disagree with the legal definition of crimes to try to settle disputes, including criminal accusations, outside of the court system. That doesn’t mean that the court system has to approve of their doing so.
“You are the one who found it convenient to introduce relativistic notions of “right and wrong”
I’m not introducing “relativistic notions of right and wrong.” I am rejecting the idea that right and wrong consist of whatever the state says is right or wrong.
To offer a parallel to your question—would you like to argue that we should tolerate state officials taking children away from their parents on the sole grounds that the parents will raise the children in their religion, which religion approves of some things the state has made illegal? That is what in fact happened in Texas—the only argument for taking two year old boys away from their mothers was that they would otherwise be brought up to approve of polygamy. The people who committed that outrage, along with some others, never suffered any criminal or civil penalty for doing so, although they were eventually forced to give the children back.
Under any decision making system, some bad decisions will sometimes occur, so preferring one system to another (or, in my case, arguing that one system might be preferable) doesn’t imply approval of all outcomes that system might produce.
August 26, 2010, 2:15 pmDilan Esper says:
Since the moral authority of the state isn’t accepted by all of their fellow citizens—I, for instance, don’t accept it—your argument would appear to imply that the state has no sovereignty either.
I don’t give a damn if you accept the moral authority of the state. You still have to obey its laws and pay your taxes. And so do members of religious groups. If you don’t like it, expatriate yourself to a state whose moral authority you accept.
August 26, 2010, 2:19 pmAndrew J. Lazarus says:
‘Sexual assault on a minor’ also implies criminality (indeed, just ‘assault’), so, what is your point? That it is impossible to describe criminal acts without calling them crimes? I don’t think this is a problem of the impoverished vocabulary of the English language. I think it’s a problem of your absurdist rhetoric.
August 26, 2010, 2:22 pmByomtov says:
David Friedman,
Various people have been objecting that a criminal charge isn’t a dispute between parties. But if I think you are guilty of a criminal offense and other people, including you, think (or say they think) that you are not guilty, there is a dispute between me and those other people. One possible way of resolving that dispute is to agree to take it to some private court, rabbinical or otherwise, and accept the outcome–for me to agree not to accuse you of the offense to the official authorities if the private court rules against me, and the others to agree not to object to my doing so, and to cooperate with the prosecution, if it rules for me.
But those presumes that the only people aware of or legitimately concerned with the alleged crime are members of the community. Suppose I discover the dead body of a Haredi, and see someone running off. Do I have the right to involve the civil authorities? Guess what, I don’t want a murderer or rapist freed, or n innocent convicted, based on the judgment of the rabbi, (especially since his salary may be paid by the defendant’s uncle.). Nor do I want punishments for those convicted set by private courts.
And let’s suppose the rabbinical court rightly acquits the accused. That doesn’t mean there was no crime. There is no guarantee that the as yet undiscovered criminal is a member of the community. At that point shouldn’t the civil authorities be brought in? But then the rabbinic court has introduced delays, has possibly contaminated evidence, etc., making the civil investigation much more difficult. That in itself looks like a powerful argument against handling criminal matters within the the community. It is not the prerogative of the community to say, “Well, Shlomo didn’t do it, so we don’t care who did.” There are wider obligations.
The immediate purpose was to respond to what struck me as an absurdly pollyanish view of the legal system.
For you to accuse others of a pollyanish view of legal systems they advocate for is droll.
August 26, 2010, 2:27 pmyankev says:
No. At that time, according to Jewish law, Jewish courts did not have jurisdiction to impose the death penalty nor to ask the Romans to do so. The same Jewish religious laws that started off this thread prohibited turning a Jew over to the Romans for punishment. Unlike the child abuse laws in the US, where there is some debate among the Rabbis, there would have been NO debate about turning a Jew over to the Romans. Unilke US law, Roman law did not guaranty Jews a fair trial. Part of the debate here turns on whether the punishment for child abuse under US law is compatible with the Torah punishments for that same conduct; there is no question that the Torah would not have permitted death by crucifixion for even the most heinous offenses.
August 26, 2010, 2:41 pmyankev says:
I have no idea. Misprision of felony is a long recognized crime under US law. So is the principle that the law has the right to every man’s evidence. The same religious laws that prevent informing the authorities may well prohibit giving testimony as well (though they would not permit testifying falsely.) Ango American law has statutory and common law privileges to exempt people from these rules in the case of e.g. laywer-client, spouses, confessors, etc., but I am not aware of any general religious exemption. Perhaps someome more familiar with criminal law can be more informative.
August 26, 2010, 2:46 pmyankev says:
Nice theory, but breaks down where, as in this case, the religious law requires a different standard of evidence before punishment can be imposed.
August 26, 2010, 2:49 pmDavid Friedman says:
I said nothing about the Romans–I was describing the situation during a later period of the diaspora, I think specifically in Spain.
My source was Menachem Elon’s Jewish Law : History, Sources, Principles, which is the best account of the subject I have been able to find.
August 26, 2010, 3:02 pmChris Travers says:
The point is it is a meaningless question. It’s not a problem with vocabulary, it’s a problem with your use of that vocabulary and the suggestion that what is obviously criminal is always obviously criminal in all cases.
The fact that all cultures define some acts of killing as criminal doesn’t make all killing criminal. Otherwise joining the army would be an obvious conspiracy to commit a crime.
In short, I think that whether a specific killing is “obviously” criminal (and hence possibly murder) depends a great deal on social expectations. An Icelander in the 10th century would answer that differently than a Dutchman today.
A lot of things seem obviously criminal today which were accepted for most of human existence. Hence rather than asking whether crimes are obviously criminal, it’s probably a good idea to try to divorce the action from the cultural expectation. Otherwise “It’s a crime” becomes something that we approach like Justice Stewart did pornography and instead of trying to define it objectively we simply say we know it when we see it.
That’s not strictly speaking correct. Please understand I was raised in a religion which glorifies going to jail for living one’s beliefs. Suffering punishment as a testament to one’s faith is a good tradition which aside from the Quakers and Amish had a good long history in other denominations as well.
August 26, 2010, 3:03 pmDavid Friedman says:
I don’t think so. My agreeing not to accuse you of the offense doesn’t prevent other people from doing so, certainly not others who are not members of the community.
Yes. But if you are yourself part of the community, you might believe that you shouldn’t exercise that right.
You seem to think that I am arguing that decisions by the rabbinic authorities ought to bind people who don’t accept their authority. If that is your assumption, perhaps you can point to what I wrote that supports it?
August 26, 2010, 3:08 pmDavid Friedman says:
I gather you don’t drive? If everyone has to obey laws, as you just claimed, then there must be nobody out there driving faster than the speed limit. That isn’t consistent with my observation.
You seem to be confusing three separate questions:
1. What am I morally obliged to do.
2. What am I legally obliged to do.
3. What am I in fact compelled to do.
I am legally obliged to do some things that I am not morally obliged to do and in fact don’t do. The same is true, so far as I can tell, of most of my fellow citizens.
August 26, 2010, 3:13 pmDavid Friedman says:
Glad to hear it. Do you happen to have a reference for the earliest defense of that concept? I think I first made the point in my Price Theory, which was published in 1986, but I expect others had made it earlier.
August 26, 2010, 3:18 pmDavid Friedman says:
Obviously true. But then, the dead crime victim isn’t the one who is choosing to take a dispute to a non-governmental authority, and I was explaining the behavior of people who were doing so.
August 26, 2010, 3:21 pmDavid Friedman says:
Or in other words, your side is right because it has more guns.
The quote was about suttee, but the same argument could be made, with identical force, by a Muslim state responding to someone arguing in favor of homosexuality. Are you sure that’s where you want to go?
August 26, 2010, 3:50 pmDilan Esper says:
That’s not strictly speaking correct. Please understand I was raised in a religion which glorifies going to jail for living one’s beliefs. Suffering punishment as a testament to one’s faith is a good tradition which aside from the Quakers and Amish had a good long history in other denominations as well.
Like many, you miss the point of civil disobedience. Civil disobedience ACCEPTS THE STATE’S AUTHORITY. You GO to jail. You don’t get to argue for a religious free pass from the state’s mandates.
August 26, 2010, 4:44 pmTed says:
Good enough without the modifier.
And this point hasn’t been properly addressed in the comments. “Disputes” or “criminal accusations,” and their resolution are not magically limited to those directly involved. Everyone has an interest in consistent application of the same rules in criminal matters. Deterrence and retribution, two founding principles of criminal law, are social, not individual. (The third pillar is “incapacitation” and has already been mentioned). A citizen is not deterred from committing a crime he has already committed. Rather, the commission of crimes by others and the result of prosecution is the deterrent. The more consistent the result, the more effective the deterrence.
Retribution works the same way. The comments illustrate this. No one, so far, has admitted to knowing the father or son in the article. Yet, I suspect there is 99% outrage at the notion that a child molester may not be protected due to the rabbi’s urging. Why? Because even individuals wholly unconnected with a crime demand justice for the victim and punishment of the perp. Again, consistency in laws maximizes the sense of justice experienced by all persons knowledgeable of the crime, not just those directly involved. See O.J.
So, David, how does allowing some members of small community (within a larger society) to pursue their own course of criminal justice or to prevent the swift and immediate involvement of law enforcement vindicate the interests of the non-members and society at-large? It doesn’t.
Example: Assume Alvin listens to his Rabbi and does not disclose to the police the fact that his 43-year-old friend Bob molested his 14-year old daughter in violation of a state statute because doing so will tarnish his community, subject his friend to an investigation by the “state — which Alvin does not trust — and air his own “dirty laundry” to the public. Non-disclosure could very well be good for Alvin and rational for Alvin, because Alvin’s interests are not aligned with either the state or his daughter’s.
But notice that the purpose of the statute, enacted by the larger society in a way that the larger society has deemed valid, is not served by any of these considerations. Nor are the interests of the individual members of society (addressed above). Rather, the purpose of the statue and interests of society relate only to the protection of the daughter and to punishment of Bob. Reduced to its base, this scenario is no different than a third-grader telling a classmate not to tattle because tattling is uncool. That, of course,
I acknowledge the tension here. Bob’s interests are not aligned with the state’s interests, Alvin’s interests are not aligned with the states interests, maybe even the daughter’s interests are not aligned with the states interests. But you know what? Neither the state nor the non-members of Bob and Alvin’s little cult give a shit about their puny, short-sighted interests, social status, or whether they’re going to hell. The secular state and its nondenominational members care about long-term stability and predictability of laws that protect victims against actions that the society at-large has determined are harmful and counterproductive to societies’ interests. It that’s inconvenient to your personal pleasure, the society and its members could care less. We are a nation of laws.
Child molestation (as defined by statute) happens to be one of the actions that society has chosen to criminalize. Thus, there is no legitimate moral basis for society to allow any private alternative dispute resolution involving child molestation. You cannot contract with the victim, her parents, or her rabbi to escape liability. And that state has no interest in making legal or easier to do so.
Isn’t that were we already are?
August 26, 2010, 4:55 pmOwen H. says:
No, my side is right because that is how the rule of law works in our society. Nice try deflecting, but no good. And as long as you are arguing in favor of letting religious authorities determine criminal cases, you are in no position to denigrate others for doing so.
This one seems easy to me, even though I am not a lawyer. Civil disputes are between the parties. Criminal disputes involve the State, and society in general.
August 26, 2010, 5:08 pmDavid Friedman says:
Doesn’t that assume that the rules that are being consistently applied are the right ones? If we start with a bad set of rules, wouldn’t we be better off if, half the time, we applied a better set—making the system less consistent but more just?
In fact, of course, we don’t consistently apply the same rules. Criminal law varies from state to state, to some degree from federal district to federal district and, of course, from nation to nation.
That’s not clear. England, for quite a while, managed to produce deterrence as a private good—see my piece on English criminal law in the 18th century. To some extent we do the same thing today–the AAA, for instance, offers, or at least used to offer, rewards for the recovery of their members’ cars, and department stores post signs saying “we prosecute shoplifters.”
But in any case, even if it is true that a first best legal system would take account of the effects of criminal prosecution on everyone affected, we don’t have a first best legal system or anything close. The question here is whether we get better results by having all suspected crimes reported to the police or by having some dealt with in other ways. Observing that the other ways are imperfect—surely true—doesn’t answer that question.
Are you assuming that criminals are risk preferers? If not, why do you expect a consistent system to produce more deterrence?
Different people disagree about what justice consists of, what punishment is appropriate, and what standards of proof should be required. Those who feel most strongly about a particular case are likely to be those close to the parties. So your retribution argument could be reversed to imply that we will get more satisfaction if a case is resolved according to the views of the community within which it occurred.
Are you assuming that the interests of the state are aligned with those of the daughter or of the public in general? I can see no evidence that that is true and no good reason to expect it to be true. As I keep pointing out, we are comparing alternatives all of which are imperfect. You don’t get to point out the imperfections on one side and simply assume that the other side works the way you would like it to.
My question was about what arguments someone wanted to accept. If the state has sufficient power it will impose its rules on other people, whether they are just or unjust. But I took the reference to Napier as describing not merely what would happen but what should happen.
August 26, 2010, 5:28 pmDavid Friedman says:
So stoning adulterers is right in fundamentalist Muslim societies, because that is how the rule of law works in those societies? Whatever is is right?
August 26, 2010, 5:30 pmDavid Friedman says:
I was struck by this comment, because I think you have things almost exactly backwards. Political institutions, for reasons I think well understood, tend to be very short sighted—economic policy is largely based on what result it will produce in the next election. Private individuals have good reason to plan much farther ahead than that.
August 26, 2010, 5:33 pmDavid Friedman says:
The question I asked was “why.” Why is it that if you break my arm your offense falls under one system, treated not as an offense against me but as an offense against the state of California, but if you break my window it falls under a different system? How is stealing my car more an offense against “society in general” than running into my car? Why is it that in the latter case the legal system treats me as the victim and gives me control over the case, while in the former it treats the state as the victim and me as merely a witness?
I’ve already provided a link to the chapter where I discuss some of these questions.
August 26, 2010, 6:03 pmByomtov says:
I expect others had made it earlier.
Schelling describes organized crime as a sort of government, which come pretty close. Given the rather large economic literature on organized crime I’m sure there are many other examples. I have seen references to a Demsetz paper which is not online.
But then, the dead crime victim isn’t the one who is choosing to take a dispute to a non-governmental authority, and I was explaining the behavior of people who were doing so.
No. But surely the victim is entitled to a proxy to represent his interest in finding the murderer, and surely society as a whole has a valid interest in finding and punishing murderers, whatever the rabbis say. The non-governmental authority is not entitled to investigate without involving the civil authorities. An accusation of murder may be a private matter, but finding and convicting the murderer is very much a public one. I notice you do not respond to the idea that the private investigation and proceeding may well interfere with the public one, and reduce its ability to locate the real criminal.
You seem to think that I am arguing that decisions by the rabbinic authorities ought to bind people who don’t accept their authority. If that is your assumption, perhaps you can point to what I wrote that supports it?
And you seem to think that, once people agree to accept the authority of the rabbis that there is no further justification for involvement by the government. If there is a conviction, and the punishment decreed is stoning it’s not our business. If there is an acquittal, and further investigation is obstructed, then it’s none of our business. If a party to the dispute is pressured into going along by fear of social or economic or religious consequences, it’s none of our business.
If that’s an inaccurate statement of your view, and you merely think rabbinical courts have powers in addition to those of the civil authority, based on the voluntary agreement of the disputants, then I have two caveats. First, that there be no coercion, as there plainly is in the case EV discusses, and second that rabbinical procedures not interfere with regular investigations in any way. I suspect those conditions are very hard to meet.
If my description is accurate then what you advocate is Mafia or warlord justice.
August 26, 2010, 6:09 pmOwen H. says:
So you’re saying they are right, in that society, since that is religiously driven to begin with?
August 26, 2010, 6:14 pmOwen H. says:
I’m not a lawyer, and really have little interest in your book if what you say here is indicative. You seem to be arguing that there should be no such distinction; is that what you say in your book?
August 26, 2010, 6:16 pmTed says:
No — well,I’ll hedge — not entirely. Consistence enforcement and prosecution of laws can be more important than “good” laws/rules. Even if a rule is bad, consistent application of it can be “just.” Speeding laws are bad. There is no discussion about this. They are needlessly low, their is no clear association between the law and its stated purpose. But speeding laws are not unjust because they are “bad.” They are unjust because they are enforced inconsistently.
It’s the process that’s important. The process used to decide what laws should affect all people. A law that affects all people equally in a democracy can’t really be all that bad. If it was, the people would repeal it. The real injustice occurs when “bad” laws are applied inconsistently, like speeding laws.
If you only apply a “bad” law inconsistently against a small portion of population you undermine the people’s ability to recognize they flaw and change it. For example, I really believe that if everyone who speeds received a ticket for every offense there would be no speeding laws (only reckless driving) or drastically higher speed limits. Can you honestly imagine everyone driving 65 on the 10 in LA?
In sum, “bad” laws exist, but they are not unjust merely because they are “bad.”
We don’t. But I think we are miscommunicating. The inconsistency is not based on jurisdiction, like you suggest. Local laws are a subset of state laws, state laws a subset of federal laws, and federal laws a subset of treaties or constitutional laws. Each subset does not need to be the same, but is must be consist with the superior set of laws. You probably already know this. So while there is inconsistency in what specific acts are criminal between similar levels, there is no inconsistency between those laws and the superior laws.
Now, how this is relevant to the topic, I’m not sure. I suppose there is no problem with a community enacting its own laws consistent with municipal law, state law, federal law, and the constitution. Though, that isn’t the issue here. Rather, the issue is whether a community should or can legally urge its members to avoid reporting violations of superior laws.
Yes. Ideally, all suspected crimes should be reported to the police or proper authorities. Of course, from the perspective of the state, practical considerations will be balanced. The moral weight of the crime, seriousness, etc., will dictate how imperative reporting really is. As a baseline, I would suggest that all felonies are serious enough to warrant reporting unless doing so would physically endanger the reporter.
What is important though, is that the state and the public decide what level of reporting is correct. It is not based on the interests of the parties involved. Alvin doesn’t get to skip reporting Bob because it’s bad for Bob or Avlin. Rather, Alvin only gets to skip reporting if the state and the public don’t think its important enough to report under the circumstances. This is clearly not the case with Alvin.
I don’t know the phrase “risk preferers.” But I assume that any deterrence value of a law must be based on the expectation that a criminal will weigh the rewards for committing a crime against the penalties and chances of getting caught. Frankly, that’s why I only speed a little. The risk of a $150-200 ticket is worth the reward of traveling at a more comfortable, psychologically pleasing speed balanced with the risk of getting caught for going 10-15 mph over the speed limit on I-5.
I disagree. And my disagreement is based on your use of “we.” I don’t think society seeks retribution for the sake of the victims or those directly affected, at least not primarily. I believe that society has a “self” interest in seeking retribution for actions that transgress its own rules. That is, I think individual people feel a sense of justice when a person is convicted for doing a heinous thing, even if they don’t even know the victims. I think most people think a rapist should be jailed, even if they don’t know or even think about the victim. I might be wrong; this is just my impression of how people judge criminal acts.
I don’t understand this. I assume that the interests of the state and the interests of the public are separate. I also assume, in the context of my example, or the article in OP, that the interests of the state and of the public are not aligned with the members of the community, Bod, Alvin, or the daughter. As to whether the interests of the state are aligned with the public, I don’t see how that is relevant here. I suppose they could be, because the state, I assume, is enforcing laws decided upon by the public. But the public, not the state, has interest in retribution and deterrence; the state doesn’t.
August 26, 2010, 6:23 pmAndrew J. Lazarus says:
This is most assuredly not deterrence as a private good. Prosecution of shoplifters benefits even their direct competitors, as the overwhelming majority of serious shoplifters do not restrict their thefts to one particular store. And, of course, the prosecution they advertise is not private; they will call the police and the trial will be conducted by the people.
There is some serious shifting going on here. The question is not the abstract one of whether all crimes must be reported to the police. I have no problem with a private college handing out an internal punishment to some frat boys for minor destruction of property, without involving the police. The case at hand, however, involves an allegation of a heinous felony. Pointing out that in some other society adultery qualified as a felony, or that in another murder of Jews was treated as lawful, doesn’t make the issue go away: what are our obligations today to enforce laws passed through a democratic method? You are welcome, I suppose, to make the extremist argument that we have no right to enact such laws, or at least to compel enforcement of them. But I’m reminded of the Talmudic story where one rabbi challenges another, “Prove to me I have a nose”. The second rabbi walks over, punches the first in the nose, and asks, “Where does it hurt?” Either we have some law, or we all go live in the woods like the Unabomber.
August 26, 2010, 6:40 pmOwen H. says:
Mr. Friedman, what is your opinion of a case recently mentioned on this blog, where a protection from abuse order was refused because the man in question believed he was within his rights to require sex from his wife?
August 26, 2010, 6:41 pmAndrew J. Lazarus says:
The component of “mens rea” would be one critical difference. (Where the broken window and the damaged car are deliberate, the State also involves itself.)
I suppose you think it’s a tribute to erudition of some sort to be reviving the legal system of Eleventh Century Iceland (I read something about it in a science fiction time travel story once). I would imagine that they found something wanting in it. Certainly I don’t know of any Icelandic movement to reinstate it, do you? The fatuous Romance with the Anti-modern is not something I had heretofore associated with Libertarian thought, my bad.
August 26, 2010, 6:47 pmDavid Friedman says:
Governments do lots of things other than resolving disputes. Describing organized crime as a government might be something close to the “General Motors of Crime” view which I reject—although I don’t know if that was Schelling’s view or not.
I wouldn’t be surprised. My view is in part based on Aaron Director’s point about the difference between the criminal market as commonly described and the same market as reflected in testimony about actual enterprises in it. A little googling suggests that Demsetz (1967) makes much the same point I made considerably earlier.
I’m not sure in what sense “society as a whole” has any interests or can act as a proxy, or even exists. I have some interest in having people who murder other people punished, as do you. I also have an interest in not having people convicted and punished for things they didn’t do. It isn’t obvious to me that monopoly control of law enforcement by the state is the best way of serving those interests, and all the other interests we have associated with the working of the criminal justice system, and I haven’t yet seen any persuasive arguments here to show that it is. You can find my description of one alternative—not the one we have been discussing—in my first book, now webbed. Nor is it obvious that, in a system like ours where the state claims something close to a monopoly, we are better off if everyone feels obliged to support that claim, which is more or less what we have been arguing about.
We know—at least, economists know—that governments routinely find it in their interest to do things that make the population as a whole worse off, with tariffs perhaps the best known example.
Is that a description of current law or a moral claim? A lot of people in this discussion seem to confuse the two.
And similarly in the other direction. The willingness of people to take criminal accusations to their own authorities rather than to the state makes state law enforcement more difficult and the insistence of the state on controlling the process makes non-state enforcement more difficult.
Perhaps you could point to where I make that claim?
As I think you can see if you read what I have written instead of inventing views to attribute to me, what I have been arguing is that it is not obviously unreasonable for members of a community that has its own enforcement mechanisms to take charges first to that mechanism instead of to the state’s enforcement mechanism. I have said nothing at all implying that the communal authority has a right to impose any punishment it likes, or that the state authority (or others) are obligated to accept its doing so.
Nor have I suggested that, if members of a community take their charges to the communal authority, that somehow bars the state from trying to enforce its rules. It makes state enforcement somewhat harder, since it means that some of the relevant people are less willing to cooperate, but it doesn’t imply that there is no justification for further state involvement. There are quite a lot of rules in existing law, such as the constitutional restrictions on self-incrimination and search, that can make it harder for the state to enforce the law. Do you want to argue that anyone who is in favor of such rules believes “there is no justification for” state enforcement?
August 26, 2010, 7:07 pmDavid Friedman says:
The point of the department store sign isn’t to deter shoplifting, it’s to deter shoplifting from that store—which is deterrence as a private good. Similarly for the 18th c. English prosecution associations.
It’s true that the sign isn’t entirely accurate, since (in our current legal system, unlike that of 18th c. England) criminal prosecution is done by the state. But in practice a victim has significant control over whether or not offenses get prosecuted. I suspect that potential shoplifters correctly interpret the sign as claiming that the store will make an effort to see that the shoplifter is arrested, prosecuted, and convicted. Which deters shoplifting from that store but not from others. Which is a private not a public good.
August 26, 2010, 7:15 pmDavid Friedman says:
I’m afraid I’m not familiar with the case, and it doesn’t seem to be one of the posts that my software is still showing. Do you have a URL?
August 26, 2010, 7:19 pmDavid Friedman says:
1. Why? What is the reason to prosecute one sort of offenses through one mechanism, a different sort through a different mechanism?
2. Deliberate torts are still torts.
I think one can learn a good deal about the law by looking at, and trying to understand, a wide variety of historical legal systems. That includes not only saga period Iceland where, in effect, all law was civil, but also Imperial China, where it was all criminal. Those two examples show that, while our distinction might perhaps be desirable, it isn’t essential—a society can function without it. Both of those systems lasted for longer than the current U.S system so far has.
But reluctance to assume that whatever governmental institutions currently exist are good ones, and a corresponding reluctance to accept as gospel the Whig version of history in which all changes are for the better, are.
August 26, 2010, 7:32 pmDavid Friedman says:
No.
August 26, 2010, 7:33 pmTed says:
Is this an example of public good transformed into private good due to the inconsistent application of criminal laws? The good is private only because the perp thinks that the store owner will pursue state prosecution and others won’t. If it was known to him that all stores generally would report shoplifting to the authorities (and the authorities would act), such a sign would be transformed back into deterrence on a public scale.
August 26, 2010, 7:35 pmDavid Friedman says:
No. That is not what I am saying.
You might try to read what I actually write, instead of inventing views to attribute to me.
August 26, 2010, 7:35 pmAndrew J. Lazarus says:
That some acts, especially ones that entail violence and malice, are more egregious, and require use of compulsion (such as incarceration). Now, if you wish to argue that murder should be a misdemeanor, that our weighting of crimes is all wrong, go ahead. But that’s when we reach the fatuous stage…
Right, and murder is a tort (see under: Holocaust reparations). Which means you are introducing a false dichotomy. Certain classes of torts are also, for want of better words, immoral and criminal. If you don’t like our society’s choice of which these are, I’ll help chip in for your plane ticket to Somalia, which features much the sort of local (and highly arbitrary) justice you are pretending to accept, if not actively to endorse.
August 26, 2010, 8:01 pmDavid Friedman says:
That strikes me as so bizarre that I find it hard to believe that it’s really your view. You are saying that a law providing that every tenth person, chosen at random, is to be shot would be just? A law providing that everyone is a slave from age twenty to age thirty, to be auctioned off to the highest bidder? A law forbidding everyone to argue against the Catholic religion? All of those could be enforced consistently.
I don’t know what “affects all people equally” means. The laws I described apply to all people. They affect people differently—but then, so do all laws, since people are different. A law against murder has a different effect on someone who has good reasons to want to commit a murder than one someone who has good reasons to fear being murdered—does that make it unjust?
That’s a prudential argument against applying laws inconsistently, but it doesn’t mean that doing so is unjust, merely that it has bad consequences.
The second statement is not true. State laws are not “a subset of” federal laws.
I earlier raised the question (probably not to you, but I haven’t checked) of whether it was wrong, before making a criminal charge, to consult with some trusted friend to see if he thought it was justified, and accept his judgment. If not, why is it wrong to do the same thing in a more organized fashion by offering your evidence to a rabbinic court and accepting its judgment of whether you ought to make the charge?
That’s my assumption as well—the usual assumption in the economic analysis of law. But it doesn’t tell us whether a certain penalty of X provides more or less deterrence than a penalty lottery that provides some probability of punishment Y, some probability of punishment Z, … . So I don’t see why you assume that certain outcomes deter more than uncertain ones.
A risk preferer is someone who prefers an uncertain outcome with expected value X to a certain payment of X. In the context of criminal punishment, it would be someone who would prefer, and so be less deterred by, an uncertain punishment, say a 50% chance of a $1000 fine and a 50% chance of no fine, over a certain punishment with the same expected value, say a $500 fine.
“Society” doesn’t have a self, so how can it have a self interest? What you are thinking of (apparently) as decisions by “society” appear to me as the result of decisions by lots of individuals, interacting under some particular set of rules and institutions. That might produce good decisions, it might produce bad ones.
In the overwhelming majority of cases, most individuals don’t know either that the crime occurred or what the outcome was. The exceptions are either the very small number of high profile crimes that show up in the news or crimes involving people the individual has some connection with.
I don’t know what “decided upon by the public” means. Almost no voter, probably literally no voter, knows what laws were passed by either Congress or his state legislature in the most recent session. The laws are the outcome of a political process, and we have no good reason to expect that process to consistently produce desirable outcomes.
August 26, 2010, 8:04 pmDavid Friedman says:
That isn’t the distinction between criminal and civil. A damage payment of ten million dollars is a much more severe punishment than a traffic ticket, or even a sentence to spend a day in jail. But the former comes through the civil system with private prosecution and a civil standard of proof, the latter two through the criminal system.
And, of course, damage payments are collected by compulsion.
August 26, 2010, 8:11 pmOwen H. says:
You could try explaining better what your views are, rather than asking me to read your book to figure them out. Likewise, you could explain why you think civil and criminal cases should handled the same way, given that you keep asking why they shouldn’t.
btw, using your own analogy; it seems to me this isn’t an issue of asking a trusted friend whether or not you should report or pursue a case before going to the authorities, it is about that “friend” demanding that you do so regardless of circumstances.
Seriously, your posts make it sound like you think people should be allowed to opt out of the legal system.
August 26, 2010, 8:21 pmleo marvin says:
“All they got from Paulie was protection from other guys looking to rip them off. That’s what it’s all about. That’s what the FBI can never understand – that what Paulie and the organization offer is protection for the kinds of guys who can’t go to the cops. They’re like the police department for wiseguys.”
August 26, 2010, 8:32 pmDavid Friedman says:
I’ve explained my views at considerable length in the discussion here, which hasn’t stopped people from attributing to me positions I have not taken.
I think I’ve only made two references to books of mine. One was to my first book, which describes, among other things, how a society in which law making and law enforcement were not done by government might work. The other was to a chapter in a later book discussing the crime/tort puzzle, the question of why we have two different legal systems, with different rules, for doing more or less the same thing, why we allocate some offenses to one system and some to the other, and why the rules differ as the do.
Neither of those is about my view of the subject we are discussing here, although I think both are interesting.
The chapter in Law’s Order discusses, in considerable detail, arguments for and against the current criminal/civil division and ways in which a pure civil system might be modified to deal with a variety of problems that it would raise. In my experience, few people, including few lawyers or law professors, have thought seriously about why we have a dual system, and I think it’s an interesting question, so introduced it here.
But, again, that isn’t the question we have been arguing.
How about it’s being like your telling friend A that you are thinking of accusing B of a crime, and his suggesting that you ought to discuss the matter with trusted friend C first? Or your telling C that you are thinking of making such an accusation, and his urging you to talk it over with him first.
I don’t see where I have argued that people should be allowed to opt out of the legal system—merely that it may sometimes be prudent not to bring matters to its attention.
Do you disagree? I expect there are laws you disapprove of. Do you think that if you observe someone violating such a law—smoking marijuana, say—it’s obvious that you should report him to the cops? If that example doesn’t work for you, pick your own.
August 26, 2010, 8:54 pmleo marvin says:
We accept the exclusive authority of the state’s criminal justice system because it’s part of the social contract. If we want the rights and benefits of living in the United States, we’re expected to assume the obligations. And that’s not an a la carte menu. We accept it all, subject only to our right to choose any of 50 available varieties.
August 26, 2010, 9:27 pmOwen H. says:
Sorry, but I think you haven’t.
Nope, doesn’t seem to be the case, or what you appear to arguing in favor of (given your use of what you claim is historical precedent). It seems closer to REQUIRING that C be consulted first.
August 26, 2010, 9:48 pmArthur Kirkland says:
1. No.
August 26, 2010, 10:04 pm2. Is there evidence that child protective services abused children, concealed that abuse, hectored victims and witnesses in an attempt to save themselves, abused victims in court, sent the abusers to inflict misery on other children, etc.? The Catholic Church — the largest systematic abuser of children on earth, so far as I am aware — is in a depraved, culpable class by itself in this context.
3. Is there evidence that police abused children, concealed that abuse, hectored victims and witnesses in an attempt to save themselves, abused victims in court, sent the abusers to inflict misery on other children, etc.? The Catholic Church — the largest systematic abuser of children on earth, so far as I am aware — is in a depraved, culpable class by itself in this context.
4. If it’s the reference to the hybrid system I seem to recall, I thought I rejected it as rubbish. If not, it was an oversight.
David Friedman says:
That might be a statement about my writing—or about your reading. I think you are one of the people whom I asked to point at where I had expressed the views being attributed to me–and I didn’t get any response.
The discussion was set off by Eugene’s post, which was about orthodox Jews in modern day America. They don’t have the power to require people to do things–all they can do is tell people that they ought to do things and threaten not to associate with them if they don’t.
I do not know which of the historical examples I have mentioned in the discussion you are thinking of. In the case of the diaspora communities, the legal authority they had was delegated to them by the sovereign. That isn’t what is happening in this case, and I don’t think there has been any discussion, by me or others, of whether such a system would be desirable in modern day America. 18th century England had essentially our modern legal system, save that criminal prosecution was almost entirely private. Iceland had a single monopoly legal code, but private prosecution—essentially a tort system that included what we would think of as criminal offenses—and private enforcement of verdicts.
August 26, 2010, 11:11 pmDavid Friedman says:
I can’t recall ever signing a social contract.
If you did, did it obligate you to obey all laws? If so, do you?
August 26, 2010, 11:13 pmleo marvin says:
You ratify it by your uncoerced decision to live here. Feel free to pretend it doesn’t exist or to reject your obligations under it while accepting the benefits. Others will decide what that says about you.
No, the laws themselves oblige me to obey them. The social contract obliges me to accept the state’s authority to promulgate and enforce the laws. I don’t obey every law. I acknowledge the state’s right to punish me for it, and my fellow citizens’ right to decide what it says about me when I do 70 on the interstate. I suspect it will generally be very different than what they conclude about someone who denies the state’s right to impose speed limits in the first place.
August 27, 2010, 12:11 amChris Travers says:
I suppose the obvious retort is “if it wasn’t for society, we could run a proper country!
One of the features of (real) pluralism in this country is that people are allowed to form their own insular groups which agree to live by certain rules, and where those rules are broken the members of that group can take every lawful action to appropriately discipline the members. People, being social animals, are quite easily pressured into upholding these mini-social-contracts and so once entered into, the only way to break the contract without coercive retaliation is to leave the group and move to another group that one accepts.
August 27, 2010, 1:20 amyankev says:
I did not think you were, and I hope I did not imply that you were. I was responding to a specific question by someone else.
I used Elon’s book as part of my independent research project in law school in 1977 but have not looked at it since. It seemed to me an excellent source at the time although I was not yet acquainted with any of the primary sources.
It’s been some time since, but I’m sure he does not say that Jewish courts in the Roman or post-Roman era, including Spain, had the power of capital punishment.
August 27, 2010, 10:12 amyankev says:
True, but doesn’t equating this to “My side has more guns” posit a moral relativism where no culture’s values is superior to any other’s? Because I’m not sure that’s where I want to go either.
August 27, 2010, 10:18 amAndrew J. Lazarus says:
This doesn’t seem correct to me. Let’s apply it to the case at hand: while homosexual child molestation is certainly against the social contract, there appears to be at least one clear alternative to suffering coercive retaliation or leaving the group. To wit, persuading the leaders of the community that for purposes of (1) intergroup relations and (2) perpetuation of the intragroup power structure that works to their advantage, the social contract should be unofficially modified to provide for squelching the complainant and ignoring the victim.
August 27, 2010, 10:21 amyankev says:
I will assume that you are speaking of private religious dispute resolution in general and that no one on this forum is so ignorant as to believe that the rabbis in Lakewood (or anywhere else for that matter) are empowered by Jewish religious law to impose stoning or any other form of capital punishment.
August 27, 2010, 10:54 amChris Travers says:
Completely agreed. I’d also note that Athens lacked a distinction between civil and criminal law up until the time of Solon. (I have argued elsewhere however that Solon didn’t establish social classes so much as reform existing structures of them along plutocratic lines).
August 27, 2010, 11:21 amChris Travers says:
That is not inconsistent with what I wrote. But the same thing happens with state power too.
August 27, 2010, 11:30 amyankev says:
Depending which obligations are disregarded, some of those others may be in the employ of the criminal justice system.
August 27, 2010, 11:32 amyankev says:
Aren’t you are overlooking thathomosexual child molestation is also against the social contract of the voluntary community, and that ignoring the victim and modifying the contract unofficially to perpetuate the intragroup power structure would also be a violation of the community’s social contract.
August 27, 2010, 11:35 amDavid Friedman says:
That’s one way of describing it. A private party makes it clear that it is willing to spend its resources seeing that crimes against it are punished. That deters crimes against it.
Suppose the department store installs video cameras, as many stores do, in order to increase the probability that a shoplifter will be caught and convicted. Would you describe that as “the inconsistent application of criminal laws?” It results in crimes against some victims being more likely to result in conviction than crimes against others.
The sign announces that a particular store will press charges. A similar sign in another store announces that that store will. Each store is producing a private good. If all of them produce it, all of them get deterrence–but each is getting the deterrence due to its sign, not that due to other stores’ signs.
August 27, 2010, 11:54 amDavid Friedman says:
And you have ratified a contract agreeing to pay me a thousand dollars a year by your uncoerced decision to live here. I expect payment promptly.
In order for my act to constitute assent to your contract, you first have to have a right to forbid me from that act if I don’t assent. Where did the state get the right to forbid me from living here? Presumably from the social contract—which makes your argument circular.
…
August 27, 2010, 11:59 amDavid Friedman says:
I’m afraid the book isn’t ready to hand so I can’t give you a quote, but I think you are mistaken. What I found particularly striking was that informing three times was a capital offense—which meant that the gentile authorities were willing to enforce capital punishment against someone for the offense of helping the gentile authorities!
Maimonides (book XI, Treatise V, Chapter 1) certainly describes the court as having the power of capital punishment. But much of what he writes ignores the circumstances of the diaspora—for instance, references to the Temple, which had been destroyed a thousand years or so before he wrote, or to the cities of refuge—so that doesn’t prove that courts were still imposing capital punishment when he wrote.
I read Elon (and other things, including Maimonides) last fall, after I decided to include Jewish law in my course on legal systems very different from ours.
August 27, 2010, 12:11 pmDavid Friedman says:
On the other hand, the legal rules of the particular community initially discussed set a lower age of consent for heterosexual activity, at least within marriage, than the laws of many states, so in that case what the state may regard as child abuse the community regards with approval.
August 27, 2010, 12:14 pmDavid Friedman says:
I don’t think so.
The argument offered by that quote takes moral relativism for granted (for the purposes of the argument—I doubt Napier actually believed it) and bases its response purely on superior force. So if that argument is correct, superior force is what matters—might makes right. I am rejecting that argument; the poster I was responding to apparently accepted it.
August 27, 2010, 12:19 pmDavid Friedman says:
And the Athenian distinction (post-Solon) still left criminal law almost entirely privately prosecuted, with the private prosecutor collecting a share of the fine if the defendant was convicted.
One of the features of that (very interesting) legal system was that if the prosecutor failed to get (I think) a third of the jury to vote for conviction, the prosecutor himself was fined.
August 27, 2010, 12:25 pmChris Travers says:
Your view of that social contract and my view are different. One element of my view of the social contract is that I most certainly do not promise to faithfully follow all the laws of the land and reserve the right to break the law as I find fitting, provided I am willing to suffer the penalty (that doesn’t mean assailing the law on freedom of conscience grounds would be precluded at trial however).
August 27, 2010, 12:27 pmChris Travers says:
That’s something we need in our system.
August 27, 2010, 12:29 pmByomtov says:
Chris Travers,
One of the features of (real) pluralism in this country is that people are allowed to form their own insular groups which agree to live by certain rules, and where those rules are broken the members of that group can take every lawful action to appropriately discipline the members.
Of course they are. But the implication of Friedman’s argument, to me, is that, the group having taken such lawful measures, there is no further obligation to conform to the laws of the larger society. The further implication is that if the insular group does not regard certain activities as rule violations there is no obligation to involve government, even if those activities are clearly in violation of law.
I note that you carefully say that the group can take lawful action to discipline the wrongdoer. So you concede, correctly, that it is bound by the laws of the larger society. Under what circumstances do you think it is not so bound?
August 27, 2010, 12:34 pmByomtov says:
David Friedman,
I can’t recall ever signing a social contract.
I bet the 11-year-old in the original case didn’t sign one either. And I wonder how many members of the religious community have agreed that, if they are murdered, they want the case handled by the community rather than law enforcement.
August 27, 2010, 12:46 pmAndrew J. Lazarus says:
No, my point is that this violation of the social contract is exactly what appears to be going on in this case, and has certainly taken place in others (e.g., priests). Travers’ Platonic Social Contract does not seem to me to be of any guidance in the real world. Indeed, his reply seems to be that the same thing happens in the traditional justice system. To which I agree, but I think that the American system has built on the experience of other, earlier, more primitive systems to provide for a superior system. Travers and Friedman appear, instead, to view these small communities through prelapsarian rose-colored glasses.
August 27, 2010, 12:53 pmChris Travers says:
My initial point was made in response to the concern over retribution by the group leading to coercion. Certainly such retribution is not per se unlawful and consequently concern over coercive nature of such actions misses the point.
One important check against abuse is the fact that the decision not to go to the police is a voluntary one, though one which is itself possible subject to retribution. Consequently I think police are entitled to investigate and courts are entitled to hear cases.
However, we are generally protected against speech compelled by the state in this nation, and I think mandatory reporting laws pose problems there. I’d further note Smith v. Employment Division of Oregon seemed to suggest that other Constitutional rights develop a special force when freedom of religion are also implicated (the hybrid-rights theory distinguishing that case from those likes of Yoder v. Wisconsin, holding that Amish were entitled to avoid compliance with mandatory education laws). So there are at least some areas where insular communities, particularly religious ones, are entitled to deviate from what would otherwise be legal obligations. I’d like to think that protection against compelled reporting of a crime would be extended there as well.
August 27, 2010, 1:02 pmyankev says:
I would be very surprised if they were. If you have any evidence to the cotnrary I would be fascianted to know about it.
That’s a non-standard method of citatation. I assume you are citing to Mishneh Torah (also known as Yad Hazaka), which was the legal code that the Rambam (or Maimonides, as the gentiles call him) compiled from Talmudic sources. That work is divided by topics (e.g. Book of Knowledged, Laws of Kings, etc.) which in turn are divided into chapters and paragraphs. According to the divisions as described in Wikipedia for Mishneh Torah (sorry, I can’t get links to work, and when I tried to paste the content the numbers did not paste), your citation would be to the Sefer Nezikin (Book of Damages), Chelek (Chapter or division) 1, Siman (lit. symbol, but here Section, which is then divided into paragraphs) 5. Does that sound right?
August 27, 2010, 1:31 pmleo marvin says:
Did I said anything to the contrary? That wasn’t my intention.
August 27, 2010, 3:25 pmAlessandra says:
I would disagree. The Catholic Church as an institution has done nothing more than the majority of abusive families do, whether they are religious or atheists.
Systematic cover-up is sadly more of the norm, whether on a institutional scale or a nuclear family scale. And yes, families do threaten and intimidate victims or employ character assassination to keep the truth under wraps and the perpetrators out of the hands of justice. Loyalty often wins over justice.
August 27, 2010, 3:59 pmDavid Friedman says:
If you are caught and convicted, you are going to suffer the penalty whether willing or unwilling. Does “willing to suffer the penalty” means willing to turn yourself in? If not, I’m not sure what the content of that willingness is.
I think there is massive real world evidence that most people feel free to break laws that they disapprove of if they don’t expect to be caught—drive over the speed limit, smoke marijuana, drink alcohol back during prohibition. Our society nonetheless survives.
August 27, 2010, 4:12 pmChris Travers says:
Willing to turn self in and turn trial into soapbox for why the freedom of conscience should prevail over the law.
This is a different question and I’d generally agree with it too. The contract doesn’t require obedience with all laws all the time and this is probably impossible anyway. I don’t even think it requires that effort.
However in addition to allowing one to be free to break the law by ignoring it, I think there is also freedom to breech the contract deliberately in order to make a point.
August 27, 2010, 4:16 pmDavid Friedman says:
I’m looking at Klein’s translation in the Yale Judaica series. The title he gives that volume is “The Book of Torts,” but it isn’t a very accurate description. It’s described as Volume 11 of the Code of Maimonides, which is indeed Sefer Nezikin of the Mishneh Torah.
But I think you have the final bit reversed. It’s Chapter 1 of Treatise V, “Laws Concerning Murder and the Preservation of Life.” I don’t read Hebrew, so have to rely on the translation.
You might, by the way, be amused by a blog post I made after reading a good deal of the Mishnah, a little Talmud, and quite a lot of Maimonides.
August 27, 2010, 4:20 pmDavid Friedman says:
Does that mean that anyone who smokes marijuana, or engaged in homosexual activity when it was illegal, or drives over the speed limit, is morally obligated to turn himself in?
Looking at it from the other side … . If there is a social contract and it is morally binding, does that mean that the state is morally entitled to punish you for breaking the law, whether or not the law is itself morally justified?
Sodomy was a capital offense in England through the first half of the 19th century. Suppose somewhat engages in it, is caught, convicted, sentenced. Is the executioner acting within his moral rights in executing him? Would the convicted sodomist be within his moral rights in using force to escape execution—assaulting a prison guard in order to escape, say?
The question isn’t just to you but to anyone in this discussion who takes the social contract argument seriously. It’s a widely accepted argument, but one that I find it difficult to make much sense of.
August 27, 2010, 4:27 pmDavid Friedman says:
At most, I am arguing that there is no obligation to act to enforce the laws of the larger society—and that would depend on the case. In my view, the obligation to conform comes not from the fact that something is the law but that it is right—as I think I said earlier, right and wrong are not made by act of Congress.
I have an obligation not to murder people whether or not either the state or my community disapproves of murder. I don’t have an obligation to turn someone in for smoking marijuana, or for sodomy in times and places when it was illegal (even capital), whether or not either the state or my community says I do.
I find it odd that some here accuse me of being a moral relativist when my position is just the opposite. The relativist position is the one that holds that marital sex at fifteen in Texas was morally proper ten years ago but is immoral today.
August 27, 2010, 4:35 pmDavid Friedman says:
Correct.
Do you think his right not to be mistreated depends on a social contract? Are murder and rape morally legitimate if committed against members of societies other than your own?
You are the one who is trying to base rights on a social contract. I’m not.
August 27, 2010, 4:38 pmDavid Friedman says:
Not at all. I expect that some non-state arrangements will be worse than state arrangements, some better. What I have been rejecting is the claim, I think implicit in Eugene’s original post, that choosing to prefer non-state mechanisms is obviously and always wrong.
“but I think that the American system has built on the experience of other, earlier, more primitive systems to provide for a superior system.”
Or in other words, you subscribe to the Whig theory of history, at least in this case. I don’t. I think institutions, legal or otherwise, sometimes get better, sometimes get worse. To take an entirely different example, Russia under Stalin was a worse organized, more oppressive, much more murderous, society than Russia under the late Czars. In the U.S. case, I think our legal institutions have gotten better in some respects, such as legalizing homosexuality, worse in others, such as the expansion of the commerce clause to virtually destroy the original model of a government of limited powers.
Many American institutions, including virtually all restaurants and hotels, are run on a profoundly undemocratic basis—I get no vote on the menu. They are, however, constrained by competition, with the result that they work considerably better, provide better value to their customers in my judgment, than democratic governments do. Embedded legal systems, such as those we are discussing, are to some degree constrained by competition—how much varying from case to case. That is one reason why some of them may be superior to the legal institutions that come out of political mechanisms.
August 27, 2010, 4:48 pmChris Travers says:
I thought I answered that in the negative. Questions of ignoring laws and publicly challenging them are separable questions.
Yes, on both counts. But the clearer case of a social contract is for a group of voluntary association. Here people do agree to live by certain rules and can be expelled from the group (and even materially harmed, for example, by loss of friends, support structures, economic opportunities, and the like) for breaking the rules. The group of course can forgive the transgression also. A nation may at one time have been similar to a group of voluntary association but I am not sure it is so today. I’d actually look more to Cicero’s view of natural law* than a social contract model for a basis for state power today, but I think trade associations, religious groups, etc. work much more on the social contract model.
* If I understand Cicero correctly, he offers essentially a functionalist view of natural law, namely that certain laws are necessary for people to be able to live together in cities, and therefore are natural. His primary example being protection of property rights, though presumably laws banning certain types of killing other people, etc. would also follow.
Hope this helps.
August 27, 2010, 5:19 pmChris Travers says:
I think this is true. It is always tempting to look at the present system and see it as the apex of human progress, but the human condition is finite in good and evil, and consequently, this results mostly in projecting our prejudices onto the past.
August 27, 2010, 5:37 pmDavid Friedman says:
The whole point of the social contract theory, as ordinarily used, is to justify the authority of non-voluntary associations. Supporters try to obscure that by claiming that you have voluntarily agreed to the contract by remaining in the country, but that, as I pointed out earlier, is a circular argument, since you need the social contract in order to give the government the authority to forbid anyone who hasn’t agreed to the social contract from remaining in the country.
For truly voluntary associations, no social contract is required.
August 27, 2010, 5:42 pmChris Travers says:
David: Have you considered writing any books on what study of historical legal systems can teach us today? It seems to be a rich field but with few books.
(As a side note, I just got Volume I of the two volume series of the translation of The Gragas today, the Andrew Dennis translation.)
August 27, 2010, 5:47 pmleo marvin says:
It’s the same kind of circularity that gives a vendor the impression I’m not entitled to take a newspaper unless I put a quarter in the box.
(How many ways am I dating myself with that analogy?)
August 27, 2010, 6:49 pmDavid Friedman says:
No. The vendor owns the newspaper, so he is entitled to set terms for providing it to you. The social contract argument is equivalent only if the state owns the territory it rules.
But, as I already pointed out, that claim depends on a pre-existing social contract. So your argument is circular, the argument for contracts involving people who already have a legitimate property right to something is not.
You could, of course, claim that there are no legitimate property rights, which would get us into a long discussion going quite some distance from the topic of the thread. But absent such a claim, the two cases are quite different.
August 27, 2010, 7:33 pmDavid Friedman says:
I plan eventually to turn my notes from my “legal systems very different” class into a book, but I’m still in the early stages of that. It wouldn’t be limited to historical legal systems, since there are some currently existing ones that are also of interest. One of my students this spring did a very interesting paper on traditional (and still functioning) Somali law. It turned out to have some features strikingly similar to ancient Irish law, which was one of the ones covered in the course.
Which unfortunately did not exist when I was doing my work on Iceland. I’ve looked at it but not read through the whole thing. I probably should when I do that chapter in the new book.
August 27, 2010, 7:37 pmDavid Friedman says:
Again stepping back a little from the current arguments … .
The original post was (I think) designed to suggest that it was about the Catholic church, although actually about an Orthodox Jewish group. I’m curious whether people’s response would have been different if the subject had been the Amish instead.
Their position, as I understand it, is that they disapprove of the whole system of criminal punishment and so prefer not to participate in it. That means not reporting crimes committed against them, whether by fellow Amish or outsiders, although I believe they are willing to testify if required by a court to do so.
August 27, 2010, 7:41 pmleo marvin says:
No, the analog isn’t the land. It’s the rights, protections and benefits you avail yourself of by living here. Anyway, that only explains why you accept one contract and not the other. But neither of them depends on the approval of outliers who deny its existence.
Arguing that the social contract can’t exist is kind of silly, when it does.
August 27, 2010, 8:39 pmDavid Friedman says:
The government doesn’t give you the option of living here and not accepting those benefits, so your choosing to live here doesn’t imply agreement to the hypothetical contract.
Suppose the newspaper seller walked up and down town announcing the headlines to everyone on a loudspeaker. Does he get to charge you for the service he is providing, on the grounds that if you didn’t want it you could have left town? That’s the equivalent of your argument.
No. It explains why your action is a morally binding acceptance of a contract in one case and not in the other. Do you think, in other contexts, that a seller is entitled to provide you with a service you have not asked for and charge you for it, on the theory that you could have avoided the service by leaving town?
The question is whether it exists as a binding agreement which obligates me. The fact that you imagine it to exist doesn’t answer that.
August 27, 2010, 9:11 pmAndrew J. Lazarus says:
This really does start to sound like the Unabomber…
August 27, 2010, 10:27 pmChris Travers says:
This kind of gets back to why I like Cicero’s view of the necessity of state authority rather than the social contract theory of state authority.
If I understand Cicero’s view, it was that when households come together to form a town or city, there are certain necessities in protecting the rights and interests of those who do so in order to make this possible. His basic argument is that if theft was extremely prevalent, no city could function. Therefore the republic must have laws to prevent theft and must enforce them.
If my understanding is correct, this differs from social contract theory in that social contract theory posits that society as a whole, and embodied by the state, has a contractual right to enforce whatever terms it places on people. Rather than asking whether something is necessary for the proper functioning of the republic, it is possible to just skip that step and say “it’s the law. You must obey it.” Consequently under this view, minorities have very few rights because the majority can force them to accept new terms under the social contract theory with very little justification.
I am just saying the metaphor is closer to how voluntary associations largely function. “We provide you X, you agree to Y.” You have all the elements of a contract. Consideration, meeting of the minds, assent, etc. In “social contract theory” you have no meeting of the minds, and no possibility of assent.
August 28, 2010, 2:13 pmChris Travers says:
Keep me posted when you do. If you’d like some help with editorial feedback, etc. I would be happy to assist.
August 28, 2010, 4:18 pmDavid Friedman says:
I think a better metaphor for the social contract is a peace treaty. Different people in a society have different beliefs about rights, entitlements, and the like. They can choose to try to use force to get the outcome they both prefer and consider just, but that’s a risky and expensive choice. So most or all of them choose to accept some outcome as the best they can hope to get—not because they think it is just but because they think other people’s ability to use force will keep them from getting anything better.
Insofar as it’s a contract, it is a contract made under duress, which most people don’t consider morally binding—although one might argue about that in the case of an ordinary peace treaty. It’s an issue I discuss in Law’s Order, where I argue that, economically speaking, whether contracts made under duress ought to be enforceable depends on the tradeoff between advantages and disadvantages of doing so, and could go either way.
I think that approach explains what we observe—most people, most of the time, don’t openly violate the law, but most of them do feel free to violate laws they disapprove of when doing so is reasonably safe, and feel no obligation to turn themselves in.
August 28, 2010, 5:17 pmDavid Friedman says:
So does that mean that German concentration camp guards were acting within their moral rights, including the ones actually killing people? I’m not sure if your view depends on the nature of the government, so suppose that Germany had still been a functioning democracy at that point and Hitler had simply succeeded in winning elections, maintaining power, and convincing a majority of the electorate that the final solution was a good thing.
August 28, 2010, 5:38 pmMac says:
With all due respect, and I do mean that most sincerely, the problem with your idea is that is neglects the natural tendency of an individual or a group to not be condemned in public and to not air it’s dirty laundry in public. It was this, not any inherent Church doctrine, that led the Catholic Church astray. Because there is no doctrine in the Catholic Church that would even remotely suggest that crimes, even among the clergy, should not be reported to police you can see how strong this trait is in that the Church consistently covered up crimes and even sent the perpetuators to other places and they continued their crimes.
The Church and Christianity and perhaps in Judaism as well although, I can’t speak to the latter, express a strong sense of penance, forgiveness and redemption and, in their minds were operating on those principles, but that was a grave error.
The Priest and the Hierarchy were and are very close. They are “Brothers in Christ” if you will and together with the penance and redemption as mentioned above, you had the closing of ranks around a fellow traveler. You see this in many groups be they religious, political or ideological for those of you who think this is only an occurrence among the Religious.
Therefore, I think that to allow private justice and equate the outcomes to public justice is not accounting for this very strong motivating force to avoid condemnation of the members and embarrassment to the group.
Also, if you recall the Hasidic Jewish community who sold their votes to Hillary Clinton for her Senate race in exchange for a Presidential Pardon of one of its members who had embezzled the Government and their own people, if I recall correctly, you can’t say that Orthodox Jews have a perfect record of enacting justice either.
Then, of course, if this stands, then what is to prevent Sharia in Muslim communities?
August 28, 2010, 6:54 pmMac says:
Amen to that!
August 28, 2010, 6:58 pmMac says:
Do you have a source for this?
August 28, 2010, 6:59 pmMac says:
Ho do they compare to Hasidic Jews which is the group with which i am most familiar?
August 28, 2010, 7:01 pmMac says:
A few high profile cases do not a trend make. Unless you have a source for National statistics to back up that claim?
August 28, 2010, 7:04 pmMac says:
Although, I agree with you overall, and can’t be sure these are witch hunts exactly, there have certainly been many false accusations made against Catholic priests lately. Yes, I know they are false because they have been proven so or the alleged victim has so admitted to lying. Of course, the money is a big draw. I can’t say the criminal justice system is operating the witch hunt, but the media certainly is and it is a very tempting pot of money for trial lawyers. These are not, repeat not current events but charges alleging abuse 30, 40 or 50 years ago.
August 28, 2010, 7:13 pmMac says:
Ah, but that is precisely where the Catholic Church erred. When the majority of the child abuse took place in the Church, it was not known that these people are rarely, if ever, cured. It was thought back then, that it is something that could be controlled and behavior that could be changed with proper will and motivation.
By not prosecuting this person, he can leave the community and go on his merry way to abuse others and no one will be the wiser. This is precisely what is happening in Public Education today. The fact that Public Schools are doing it, does not make it right. As with other pedophiles, he will find a way to be in a trust position around children. If his Jewish community is not aware that this is not something that is ever likely to change, he will continue to be a danger to the children of that community.
August 28, 2010, 8:22 pmMac says:
Please, the Catholic Church never, ever said any such thing and I strongly doubt the Jewish faith, even one of such extreme orthodoxy, would either.
August 28, 2010, 8:26 pmMac says:
Well, that was certainly well stated and put things in perspective, I trust.
August 28, 2010, 8:29 pmChris Travers says:
There’s a subtle difference here. I think that there are only two fundamental human rights that exist: the right to equal protection under the law and the right to collective self-determination.
In the concentration camp case, the question is why they are killing the person. Is the individual that they are killing essentially being killed for an action that is considered a state crime (actually although numbers were small, such people WERE sometimes killed through the concentration camp system in WWII)? Or are they killed for something which is a matter of inherent nature (i.e. who their parents are, i.e. most victims of the concentration camp system)?
In the former case, you have an action which is punished by death. We may or may not agree with the justice in that action but someone decided to undertake an action and probably had a good idea of the possible penalty. Yes, the guards would be within their moral rights to carry out the execution.
In the latter case, however, you have a question of someone who is being put to death not because of something he or she did, but because of something he or she is. That’s fundamentally different. Allowing execution or other punishment solely on the basis of an accident of birth would be something I think should not be allowed.
So that is where I’d draw the distinction in terms of what is within the rights of the state to attempt to punish if they want. They can punish people for what they do. They cannot punish people merely for who they are.
Of course this can be abused and push-back is a possibility. For example, consider the Jews of Spain who were forced to convert to Christianity under the sword but who then collaborated with the Muslim invaders so they could have their freedom of religion back. The Catholic rulers abused their power, and the Jews, who were a political underclass at the time collaborated against the state to secure their own rights.
August 28, 2010, 8:39 pmirishpoetry says:
Talk sense Mac – you don’t seem to have a clue what you are talking about. People do, as you call them, misdeeds in all walks of life and all areas of society. I don’t call them misdeeds, I call them offences against God, or to use the old-fashioned word SINS, or call them crimes against humanity. Let’s get that straight. No Catholic bishop has ever come off with this rubbish you are spouting, that their “misdeeds were mandated by God”, so don’t be so ridiculous. What planet are you on. Talk sense. The baddies are everywhere. Back then I myself had three uncles who were paedophiles and none of them were priests or bishops, they were UNCLES. What I’m saying to you is misdeeds, as you call them, evils I call them, were rife in the world and actually still are today. In how many countries do you think these evils are still going on today??????? Wise up and get real Mac and get off the back of the Catholic Church. They have tried to put the sins of the past behind them. Unfortunately for children, there will always be many in different societies who will continue to inflict this type of crime and suffering against the innocent. You can’t stop it and neither can I, nor can we take any steps to stop it. At least the Catholic Church has taken the necessary steps. So Mac, pipe up.
August 28, 2010, 8:40 pmChris Travers says:
Interesting. Something new to think about. Thanks.
The ability to inflict punishment? I mean if folks start cutting off hands or stoning people to death, the police are going to start investigating, right? As long as we all agree the courts have jurisdiction here, then that’s a pretty substantial limitation.
August 28, 2010, 8:47 pmMac says:
Irishpoetry, whoa you have the wrong guy. If you go back to my comment, you will see the statements you are attributing to me were made by Dilan Esper and I was quoting and commenting on his statement. I think if you read my comments above, your blood ps. might come down a bit, at least in relation to me.
August 28, 2010, 8:58 pmMac says:
Correct me if I am wrong, but I don’t think we all agree that the courts have jurisdiction here. In fact, not going to the courts, before or after a rabbinical trial, seems to be the main issue.
Also, we don’t know exactly how the religious court would punish the man even if they found him guilty and there is nothing that I can see here that would indicate that they would necessarily go to the authorities even if they found him guilty.
Of course if they wanted to cut something off, they would run afoul of the law if it was discovered, and that is part of my point. This rabbinical court would not do that, unlike a Sharia court so how are they going to punish him? However, I stand by my first statement, if you acknowledge an authority outside of our established criminal law in this case, then what about Sharia?
August 28, 2010, 9:19 pmChris Travers says:
There’s a difference between saying “don’t go to the secular police about this” and saying “the secular courts have no right to hear this case.”
I hear a lot of people saying the former. I hear nobody saying the latter.
August 28, 2010, 11:16 pmDavid Friedman says:
I’m not sure the first has ever been enforced in any society, and am sure it has never held on a global scale. Nor do I see why it should.
Suppose we have a society which provides some level of protection to its citizens. A citizen who is particularly worried about being robbed hires a private guard. He now has better protection than the rest. Is he violating their rights? Would he be if, instead of hiring a private guard, he offers to pay the government the cost of hiring an extra police officer to keep an eye on his property, and the government accepts the offer?
The second, if I understand you correctly, strikes me as not only not a right but as inconsistent with rights. If “we” have the right to collective self-determination that means that “you”–a majority of whatever collective group I am for some reason deemed to be part of—have the right to do all sorts of terrible things to me, up to and including executing me for refusing assent to your religious beliefs.
I am not even sure one can give a coherent account of a right to collective self-determination–what determines the relevant collective? If inhabitants of North America have that right, can the Canadians opt out? If Canadians have that right, can inhabitants of British Columbia opt out and self-determine for themselves? What about a single inhabitant of British Columbia? What about British Columbian Catholics–is there some reason why your collective has to be geographical?
It seems to me that rights can only be predicated of individuals.
If you are ever in the California Bay area, perhaps we can get together and talk this out over dinner. Your account seems quite bizarre to me–and perhaps mine to you.
August 29, 2010, 12:02 amDavid Friedman says:
You observe a friend smoking pot. Because you disapprove of the laws against pot, or because he is a friend, you don’t report him to the police. Are you denying that courts have jurisdiction?
If they want a punishment that they cannot themselves inflict, they will have to go to the court. On the other hand, if (say) putting him under ban seems to them appropriate or, alternatively, if they conclude that he hasn’t done anything he should be punished for, they don’t have to go to the court.
Again, looking at it in terms of an individual decision to report or not report a crime seems to me to eliminate some of the problems that bother you.
In either case, unless the court is willing to take the risk of breaking U.S. law, its options are limited. That doesn’t mean they don’t exist.
What about it?
If there is a dispute between two muslims, they take it to the qadi, get a ruling, and (assuming that the moral authority of the qadi is sufficient) abide by it. It might be a civil dispute, it might be a criminal dispute.
For instance … one man charges the other with stealing something from him or assaulting him. He goes to the qadi instead of calling the police. The case gets resolved without ever coming to the attention of the official court system.
How is the case of sharia, or of decisions by an Amish bishop, any different in principle from the case of a rabbinic court, or from any other case where people resolve a conflict that could to the police without taking it to the police?
August 29, 2010, 12:29 amChris Travers says:
Ah….
Basically what I mean is that in the interest of some sort of justice, the law cannot differentiate between people on the basis of identity. Neither one of your hypos strikes me as a problem in the same way that extermination of minority ethnic groups simply due to accident of birth would be. In both your cases, a distinction is made based on what an individual does, not who an individual is.
I guess it grew out of my disillusionment with what passed for rights in human rights circles and an attempt to say that we shouldn’t necessarily pressure other countries into being like us. A lot of so-called human rights are really projections of our own cultural values onto other cultures. I have come to the conclusion that individual rights arise from the tension between the needs of the individual and the needs of the collective, and that these admit to multiple solutions in different cultures. Like you I don’t believe that the state is a moral authority, but I also think it’s necessary to separate what we should be insisting on in our system from what we should insist on in, say, Turkey or Iran.
As for forcing people to convert under the sword, certainly that has been a norm in history for many centuries and nobody has done a finer job of it than the Christians. However, as the stoics point out, the inner part cannot be delivered into bondage. The tension between the individuals and the collective is one which in some cases limits this practice. I mentioned the forced conversion of the Jews in Spain, where they assented to the conversion, preserved their own practices, and then cooperated with invaders against the state to free themselves of those shackles.
Thinking this over, it may be that we are using the term “moral authority” for the executioners of the state in a different manner. I don’t think that the state has moral authority. I think people do. Executioners are however in a difficult position. If those in charge of carrying out the punishments of those convicted of crimes question the wisdom or justice of each law, then the system falls apart quickly. The executioners therefore, I think have broad moral authority in terms of loyalty to the system to carry out most executions even if they believe the person is innocent or the law is unjust. It’s only where no crime is at issue, or where the crime is a status crime, where I think there is a moral duty of such an officer to resist the state.
As to who gets to determine that right? I believe that if you can secede, you can opt out.
Is no state a moral authority? I don’t know. I think successful monarchies try very hard to be, whether or not we agree with their concept of morality. I suppose Morocco would be a good place to look there since they probably have the longest (mostly) continuously functioning monarchy in the world.
Now, as to our system here today, our nation is supposed to be pluralistic both at the federal level (since its inception) and at the state level (often at the inception of the state, but sometimes after the passage of the 14th Amendment). Consequently, I think there needs to be more space for individual groups to determine their own systems. Indeed here not only is the state inadequate as a moral authority, but it must avoid being so. This avoidance is a matter specifically of our system.
As for the dinner invitation, if I am ever in the bay area, I will let you know. I am sure we could have a fascinating discussion :-). Similarly if you ever need a vacation, consider coming to Lake Chelan, Washington (mountains, clean lake, fairly rural, etc) and I’ll make a similar offer.
August 29, 2010, 12:53 amDavid Friedman on “Democracy is the worst form of government except for all the rest.” « Let A Thousand Nations Bloom says:
[...] all the rest.” August 31, 2010 by flowidealism In the comments on a controversy at Volokh Conspiracy, David Friedman provides the most sensible interpretation of the famous quotation “Democracy [...]
August 31, 2010, 12:50 pmMatt Flipago says:
It is troubling they say it’s forbidden to go to the government courts. Although I am not surprised that this is not the Catholic Church, as all Religious Leaders have these problems, they get accused of molestation, someone helps them try to mitigate and cover up. Of course much worse then religious institutions tend to be schools, with massively higher problems. You put adults in close position with children of course pedophiles are attracted to that. Problems exist in the Boy Scouts, coaches, everywhere, and they all try to cover it up, to an extant b/c sometimes they are made up, others it’s just to save face. These are also pretty limited events that happen, it just seem like certain institutions are horrible b/c they represent billions.
September 2, 2010, 2:07 amAlessandra says:
There’s a new case in the news concerning the Amish, with allegedly the same cover-up dynamics as the Catholic Church:
A married Amish man has been accused of sexually assaulting six girls, one his cousin, in a case that has plunged his insular community into crisis.
Over ten years, Chester Mast is said to have abused victims aged from five to 15.
The father-of-two, whose wife is pregnant, has denied allegations including incest, rape and sodomy and will stand trial later this year.
The case has thrown the spotlight on the U.S. Amish community after it was revealed that elders spent six years moving the 26-year-old around in an attempt to cure him, during which time he apparently continued his abuse.
Relatives had long suspected the apprentice carpenter, but called in police only when the scandal threatened to tear apart their community.
Asking for outside intervention is rare among the deeply religious congregation, which prefers to resolve disputes internally.
Mast’s community is made up of 70 families and has been in Pike County, Missouri, since the 1940s.
Read more: http://www.dailymail.co.uk/news/worldnews/article-1308744/Amish-man-charged-string-sexual-assaults-children-including-cousin.html#ixzz0yYOgLniB
September 4, 2010, 7:34 am