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Natural, Positive Law, Tax Evasion, Rituals and Incantations

Over on the LRC blog, there were some posts about the jailing of tax protestors; the following was my comment:

David,

Yes, Irwin Schiff is–tragically, shamefully–in jail for tax evasion, “Because the judges who sit in judgment of him are paid their salaries by income taxes.” At least indirectly. But taxes are clearly not voluntary, and it is illegal to evade income tax. If the courts of a given system actually enforce a rule–provide penalties for not following the rule–this is what it means for the rule to be a law. It’s a positive law, to be sure–but a law. And it’s not only the courts–it’s the legislators, too. The tax protestors are simply wrong to say it “is” not illegal to evade income tax; it clearly is illegal, since the legal system does impose penalties for this conduct. Furthermore, the tax protestors are wrong to argue that this law is not provided for by statute. It is. And if they ever succeeded in persuading some judge that it was not, the tax statutes would simply be clarified to plug the hole.

Often the tax protestors adopt a sort of hyper-natural law stance in which they capitalize Law, in a crankish and quasi-mystical way, and refuse to even call something Law if it is not just. This has echoes of the Hart-Fuller debate where Fuller took the “natural law” view that law and morals cannot be “separated.” Hart took the “legal positivist” view that there is a difference between what law is and what it should be. I’ve always found this debate to be frustrating because the natural law side, with which I’m of course more sympathetic, seems confused and to misunderstand the positivist position. The basic idea of legal positivism–that it is possible to identify something as a law, even if it is unjust–seems to me to be obviously correct, and not even contrary to natural law thinking. It is currently illegal to sell cocaine or one’s body for sexual services or to evade income tax–but it should not be. Just law–law compatible with libertarian principles–is what positive law should be. Libertarian law, just law, is like a template or ideal by which actual, enforced law can be compared, or aspire to. (For discussion of the role of abstract libertarian principles being used to develop more concrete ethical and legal rules, see my Knowledge, Calculation, Conflict, and Law, pp. 60–63; and The Limits of Armchair Theorizing: The Case of Threats.)

But to determine what the law is, one must see what rules are enforced. Oliver Wendell Holmes’s “bad man” theory of law always made a certain amount of sense to me–his view that the law is a prediction of how courts behave; it’s based on the notion that bad men “care little for ethics or lofty conceptions of natural law; instead they care simply about staying out of jail and avoiding paying damages. In Holmes’s mind, therefore, it was most useful to define ‘the law’ as a prediction of what will bring punishment or other consequences from a court.” Now we must keep in mind that identifying something as law does not mean it is just.

The tax opponents often seem to try to intentionally blur this line. When they should be arguing “the current law against tax evasion is unjust and immoral,” they say, “there ‘is’ no law against tax evasion.” They want their factual, descriptive “is” word to do the work that “should” ought to be used for. But such tricks cannot work. As Brian Doherty notes in a perceptive article,

The tax honesty movement’s vision of the world is fantastical in another way. It is not merely obsessed with continuity; it is magical in a traditional sense. It’s devoted to the belief that the secret forces of the universe can be bound by verbal formulas if delivered with the proper ritual.

(See Doherty’s It’s So Simple, It’s Ridiculous; also and Five Reasons You Don’t Owe Income Tax, Dammit!) See also Huebert‘s perceptive comments about the futility of thinking we can achieve liberty by just finding the right arguments to persuade federal judges: as he notes, the authors of a book he is commenting on “seem to think that restoring liberty is really only a matter of overturning a handful of bad court precedents. If we can just get in front of judges and do that — apparently through the irresistible power of our arguments and our lawyers’ outstanding legal skills — we can finally achieve liberty across the land.”

So, to sum up: the tax statutes do penalize tax evasion. The legislators want it this way. And the courts do act on this–and put people in jail. It is illegal to evade income tax. And, yes, this is monstrous–but there it is. And, unfortunately, I don’t think there’s any incantation, spell, or ritual that will persuade judges or legislators to see the light and start protecting our liberty. And given how dangerous the state is, it is prudent to recognize reality.

Update: Predictably, I’ve gotten a flurry of emails from the tax protestor types, ranging from the tired old “SHOW ME THE LAW” to “your tone is bad, it will make people think it’s hopeless,” to “I don’t care what the law is”.

As for tone comment–I think it’s prudent and not unlibertarian to be realistic and not to be self-delusional. Call me crazy. But this opposition to truthfully recognizing an unjust law is one of the reasons activism is dangerous–it makes people conflate substance and truth with tactical, strategic concerns–they start to identify truth with “what motivates or inspires or persuades people,” and conversely, if something is unpleasant, it’s “not true”–the ostrich approach to reality. I don’t think libertarianism requires one to be an ostrich or a martyr. (See my The Trouble with Libertarian Activism .)

As for SHOW ME THE LAW–Doherty discusses this:

The tax honesty folks similarly believe that their foe the IRS must also be bound by these grimoires of magic: that without the properly sanctified OMB number an IRS form holds no power, that without uttering the mystic word liable no authority to tax can truly exist.

And always, always, the ultimate incantation, The Question: Where does it say that I owe income taxesShow me the law!

The tax honesty types have such trouble even imagining an unjust law that they just cannot accept that tax-evasion-criminality–which is clearly unjust–can really be illegal. For clear explanations (not that the tax honesty types care) of why federal legislation is behind tax evasion laws, see Doherty’s It’s So Simple, It’s Ridiculous and Five Reasons You Don’t Owe Income Tax, Dammit!; also Income Tax: Voluntary or Mandatory?; Tax Fool; and Why I won’t join the tax protesters.

Some have accused me of legal positivism–well, sure, if you mean the belief that it’s possible to identify and recognize a given rule as a law, even if it’s unjust; but not, of course, if you mean the belief that only commands of the sovereign count as genuine law (in fact my opposition to this type of legal positivism is one reason I am skeptical of many natural law arguments: they are also positivistic in this sense, in that they believe that while the legislature may not decree true “Law” or morals, God can; they just push it back a level. My view is that not even God can make evil good).

The legal positivism (in the pejorative sense) of the natural law types can also be seen in their repeated SHOW ME THE LAW question. They are so used to the modern, positivist system of written constitutions and law-as-legislation that they seem to have trouble thinking of law as something other than “what’s written in ‘the lawbooks'”.  But a written Constitution is not the only way to have a constitution, as Britain’s centuries-old unwritten constitution shows; in fact, it’s better, I would argue, than an artificial, naive, utopian, constructivist one like the failed American one. And statute is not the only way to make law–or even a good, or legitimate, way, in my view (see my Legislation and the Discovery of Law in a Free Society). Laws are the rules that are legally enforced–as I noted above with reference to Fuller and Hart and Holmes’s realistic “bad man” theory of law–and these rules need not emanate only from “the law books” or a written Constitution. To think so is to succumb to the legal positivism that dominates our legislation-ridden age. (There are innumerable types of unwritten rules, including even unwritten “internal rules” of the state itself–see Alfred G. Cuzán’s classic paper “Do We Ever Really Get Out of Anarchy?, and his forthcoming JLS paper Revisiting “Do We Ever Really Get Out of Anarchy”.)

And this also brings us back to Doherty’s comments about the “Protestant” nature of the tax honesty movement:

Their devotion to their beliefs is certainly religious. Indeed, tax litigation consultant Daniel Pilla, author of The IRS Problem Solver, says they’re “like programmed cult members — you can’t reason with them.” More charitably, the tax honesty people are staunch exemplars of America’s glorious Protestant heritage.

This observation is not merely a pun on their status as “tax protesters.” Their attitude toward the Constitution and the statutes and legal decisions regarding the income tax are uniquely Protestant, relying on a layman’s ability — indeed, obligation — to read and study and parse the original documents himself, to come to his own personal relationship with the law and the cases, and to prefer his understanding to that of the priesthood of lawyers, judges, and accountants.

“Case law” — the kind that proves that you can and will be arrested or fined for not filing or paying income tax — means nothing to them; they like to rely strictly on the statutes as written, or on Supreme Court cases and straight constitutional interpretation. Irwin Schiff, the godfather of the movement, is insistent that you shouldn’t just take his word for anything: You should check the statutes. He is, he declares, the biggest reseller of the published version of the U.S. tax code. He sells specially tabbed copies leading you straight to the pages in the multithousand-page behemoth you must see to understand his own interpretations.

It’s no surprise that the Protestantish “SHOW ME THE LAW” and their positivistic fixation on written documents as the only source of law mirrors the Protestant view of sola scriptura, or “Scripture alone,” and their befuddlement with the more nuanced and sophisticated Catholic view:

The true “rule of faith”—as expressed in the Bible itself—is Scripture plus apostolic tradition, as manifested in the living teaching authority of the Catholic Church, to which were entrusted the oral teachings of Jesus and the apostles, along with the authority to interpret Scripture correctly.

(See Scripture and Tradition.) The Catholic idea of a non-written, merely oral tradition or teaching befuddles Protestants. Thus, just as they say “SHOW ME THE LAW”–meaning a written statute–they ask the Catholics, “What’s Your Authority?” Think about it…

[LRC post; Mises blog post]

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