Of Cats and Mice, Laws and Criminals
Georg Christoph Lichtenberg, The Waste Books, tr. R. J. Hollingdale, New York Review of Books, 1990, p. 101:
Certain rash people have asserted that, just as there are no mice where there are no cats, so no one is possessed where there are no exorcists.
Lichtenberg's observation puts me in mind of anarchists who say that where there are no laws there are no criminals. That is not much better than saying that where there are no chemists there are no chemicals.
Just as there are chemicals whether or not there are any chemists, there are moral wrongs whether or not there are any positive laws* prohibiting them. What makes murder wrong is not that there are positive laws prohibiting it; murder is wrong antecedently of the positive law. It is morally wrong before (logically speaking) it is legally wrong. And it is precisely the moral wrongness of murder that justifies having laws against it.
And yet there is a sense in which criminals are legislated into existence: one cannot be a criminal in the eyes of the law unless there is the law. And it is certainly true that to be a criminal in the eyes of the law does not entail being guilty of any moral wrong-doing. There are senseless, incoherent, and unjust laws.
But the anarchist goes off the deep end if he thinks that there is no moral justification for any legal prohibitions, or that the wrongness of every act is but an artifact of the law's prohibiting it.
As I like to say, anarchism is to political philosophy what eliminative materialism is to the philosophy of mind. Both are 'lunatic' positions. But 'lunacy' has its uses. It is instructive in the way pathology is. We study diseases not to spread them, but to contain them. We study diseases of the mind not to promote them, but to work out the principles of intellectual hygiene.
*Positive laws are those posited by a legislature. See here:
In general, the term "positive law" connotes statutes, i.e., law that has been enacted by a duly authorized legislature. As used in this sense, positive law is distinguishable from natural law. The term "natural law", especially as used generally in legal philosophy, refers to a set of universal principles and rules that properly govern moral human conduct. Unlike a statute, natural law is not created by human beings. Rather, natural law is thought to be the preexisting law of nature, which human beings can discover through their capacity for rational analysis.