Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Political tags - such as royalist, communist, democrat, populist, fascist, liberal, conservative, and so forth - are never basic criteria. The human race divides politically into those who want people to be controlled and those who have no such desire. The former are idealists acting from highest motives for the greatest good of the greatest number. The latter are surely curmudgeons, suspicious and lacking in altruism. But they are more comfortable neighbors than the other sort.”     Robert A. Heinlein

July 27, 2012

Quote of the Day: Following Orders Edition

by Stephen Littau

Agitator guest blogger Maggie McNeil made some very good points in a post she titled “Godwin’s Law” that dovetail nicely with a point I was trying to make in another post about government enforcing immoral laws. Prior to reading the post, I wasn’t familiar with Godwin’s Law (“As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”) but very familiar with the phenomenon. When someone, regardless of political persuasion, makes comparisons to the Nazis or to Hitler, I generally start tuning them out because the comparisons are rarely appropriate, shows the commenter has little imagination, and most importantly, trivializes the Holocaust. Maggie does find there are some occasions when the comparison is appropriate, however; and does a fine job in her post making the appropriate distinctions (you need to read the rest of the post to understand the full context about what she wrote in the excerpt below).

At Nuremberg, Western society established the legal precedent that “I was only following orders” is not a valid defense against wrongdoing even if the offender was only a low-level functionary in an authoritarian system, yet how often do we hear police abuses (especially against prostitutes) defended with phrases like “they’re just doing their job” or “cops don’t make the laws, they just enforce them”? If a cop is tasked with enforcing a law he knows to be immoral, it is his duty as a moral man to refuse that order even if it means his job. If he agrees with an immoral law then he is also immoral, and if he enforces a law he knows to be wrong even more so. The law of the land in Nazi-era Germany was for Jews and other “undesirables” to be sent to concentration camps, and the maltreatment of the prisoners was encouraged and even ordered by those in charge; any German soldier or policeman enforcing those laws was the exact moral equivalent of any soldier or policeman under any other democratically-elected government enforcing the laws enacted by that regime. Either “I was only following orders” is a valid defense, or it isn’t; either we agree that hired enforcers are absolved from responsibility because “they’re just doing their jobs”, or we don’t. You can’t have it both ways, and sometimes Nazi analogies are entirely appropriate.

I think the same applies if you are called for jury duty. If you find that the accused is being charged with a crime that the law itself you find to be unjust, I don’t believe “following jury instructions” is an appropriate defense for finding the person guilty. We all have a moral duty to do what we believe to be right regardless of what the law is.

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1 Comment

  1. Slightly off topic, but related: there is an legal exception to breaking the law, in which you are allowed to break the law in the rare circumstance where following the law would cause more human injury than breaking it. It’s called “Doctrine of Competing Harms.” The best example, from Massad Ayoob, says that suppose you and your family are traveling down a two lane highway. A very large tractor trailer coming the opposite direction crosses the median into your lane and is headed straight for you. In order to prevent harm to yourself, your family, and possibly the driver, you swerve over the double-yellow line into the opposing lane, narrowly avoiding an accident. A police officer could not, under those circumstances, couldn’t write you a ticket for crossing the median and have it hold up in court.

    Same thing is if you were at the range shooting and stopped at a Starbucks on the way home and witnessed a woman being raped at knife-point. You, then, could retrieve your firearm from the trunk and “brandish” said firearm to protect the woman, and you would have legally broken no laws.

    Ayoob also stated that there was a store owner that was illegally carrying a firearm that shot a kid trying to rob him, however because he was robbed at gunpoint a few months prior, no charges were brought for illegal carry of a concealed firearm. The store owner believed his life was realistically In danger everyday and he decided to carry even though they denied him a CCW. He also believed he was in immediate danger at the moment he shot the kid. Both are legally justifiable under those circumstances.

    So I guess the point if “following orders” was, in fact, to save someone’s life and was honorable, laws don’t apply; however, if “following orders” was inhumaine and considered, by large, to be dishonorable, then consequences should be imposed whether or not there are laws to support them.

    Comment by Nevery — August 4, 2012 @ 12:57 pm

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