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Willingness to Kill

Summary:
Law professors and lawyers instinctively shy away from considering the problem of law’s violence.  Every law is violent.  We try not to think about this, but we should.  On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him. Thus said Yale Law professor Stephen L. Carter. He is pictured above. Does this mean there shouldn’t be laws? No. And Carter realizes that.

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Willingness to Kill

Law professors and lawyers instinctively shy away from considering the problem of law’s violence.  Every law is violent.  We try not to think about this, but we should.  On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

Thus said Yale Law professor Stephen L. Carter. He is pictured above.

Does this mean there shouldn’t be laws? No. And Carter realizes that.

He goes on to say:

This is by no means an argument against having laws.

It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard.

I thought of this when reading co-blogger Bryan Caplan’s recent post titled “Escalation and Obedience.” Carter was making essentially the same point.

Here’s what I take from Professor Carter’s thinking. Think about all the laws and regulations you want. Then think about whether you want the government to be willing to kill people if those who disobey escalate their disobedience. (Bryan discussed government escalation and he’s right; but to put yourself at great risk of being killed by the government, you typically, although not always, have to be willing to escalate your disobedience.) Then ask yourself if that affects your thinking about any of the laws that you previously said you wanted. Laws that make gasoline cans almost useless? Laws that say you can’t have more than a certain volume of water per minute coming out of your shower head? Laws against using marijuana? Laws against growing marijuana?

David Henderson
David R. Henderson (born November 21, 1950) is a Canadian-born American economist and author who moved to the United States in 1972 and became a U.S. citizen in 1986, serving on President Ronald Reagan's Council of Economic Advisers from 1982 to 1984.[1] A research fellow at Stanford University's Hoover Institution[2] since 1990, he took a teaching position with the Naval Postgraduate School in Monterey, California in 1984, and is now a full professor of economics.[3]

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