Natural, Positive Law, Tax Evasion, Rituals and Incantations

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.

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