Laws Must be Moral: Reviewing Three Types of Legal Regimes

Reasonable law regimes, unreasonable law regimes, and non-law regimes

Photo by Joe Yates on Unsplash

TL;DR: There are three types of legal regimes. Reasonable law regimes are democratic institutions that respect the rule of law. As a result, citizens are morally obligated to obey the law when pursuing reform. Unreasonable law regimes are authoritarian, yet the government still has ideals of legitimacy that they seek to live up to. Under these regimes, civil disobedience is morally justified to force governments to live up to these ideals. And under non-law regimes, there is no legitimate relationship between the government and the people. Necessity is a justification for even violent acts under these regimes.

The great debate in legal philosophy has been between legal positivism and natural law theory. To oversimplify, the former argues that laws are orthogonal to morality, whereas the latter argues that laws must be grounded in morality.

Contractualism sides more with natural law theory, believing that reason creates universal moral principles that every just legal institution must reflect. There are laws that reasonable people would agree to and wouldn’t agree to. And then, there are laws that completely disregard reason, each of which will be discussed below.

Positivism has been the dominant legal theory ever since the death of god.¹ Stoic and medieval legal theorists, who made divinity the centerpiece of their natural law, didn’t appeal to the secular academic.

It wasn’t until WWII, and the Nuremberg trials, did legal theorists reexamined the authority of law— did it derive from a sovereign or some substantial morality?

“If I were a judge, how could you tell me that I should enforce the Nuremberg codes? Could Nazi law really be law?”

This newsletter will examine the essence of law, make a defense for natural law, and discuss its positivist critiques. First, however, this post will put the cart before the horse and categorize three types of legal regimes and our duties under each of them.

Reasonable Law Regimes

Citizens of liberal democracies are most familiar with reasonable laws. These types of laws manifest the foundational principles of a just society, meaning that property rights are protected, contracts are enforced, and safety is prioritized. In addition, residents are treated as free and equal citizens, whose conception of the good life is respected.

Reasonable laws are created through a democratic process, rely on expertise and reason rather than private interests, and are administered impartially—at least for the most part.

Yet law under a reasonable law regime isn’t necessarily the best or most efficient law. It only means that its laws had gone through a fair process and are not substantially unjust, a low bar in the modern age. There’s still plenty of room for reform under a reasonable law regime.

Take the federal prohibition on marijuana. Despite the many, many good arguments for legalization, the policy also has had plenty of opportunities to become law. If legalization were as obvious as advocates argue, politicians would enjoy continuous re-election and states would have financial success from legalization. But marijuana’s remaining illegality shows that the issue isn’t as obvious or inconsequential as its advocates make it out to be.

At the very least, the policy has gone through a fair democratic and legal process, and the unfortunate outcome should be respected. Although, this process includes its lack of enforcement, which is fair to consider.

You can imagine reasonable law as a fair contract between parties. Sure, there are always terms one party might prefer over others, and there may be some existing gripes here or there on the agreement. The parties might even be continuously working on improving the contract under an awareness of its imperfections.

However, the contract process and the resulting agreement are still respected, and any changes must be made within the bounds of the agreement. Therefore, just reformers must stick to the letter of the law when advocating change. This includes relying on the democratic process, obeying reasonable restrictions on speech, and respecting judicial decisions.

Civil disobedience, and certainly violence, would be disproportionate and unjust.

Unreasonable Law Regimes

These regimes include authoritarian, colonial, or discriminatory governments. If these regimes had free speech and democratic mechanisms, unreasonable laws would be quickly eliminated. So rulers resort to suppression to maintain their laws.

Governments that create unreasonable laws may fail to prosecute crime, protect property, or enforce contracts—or do so only arbitrarily. Dissent is targeted, rights are disregarded, and paternalism is justified. Nationals are viewed as subjects rather than free citizens. Examples of these regimes include the Jim Crow South, Apartheid South Africa, and highly corrupt governments.

The government might also force its conception of the good upon its people, like in theocracies or highly nationalistic states.

Laws under these regimes can be compared to an illegal contract. This can include a contract where one party acted under duress, coercion, or fraudulent information. Under our legal system, contracts like these would be voidable, since they fail to represent a legitimate expression of one’s will. Similarly, unreasonable laws fail to represent what the affected public would reasonably agree to.

These regimes usually desire legitimacy but fail to live up to it due to their institutional structure, policies, administration, or some combination of the three. Nevertheless, despite the unreasonableness of their laws, these governments tend to have established principles of justice, like having a constitution, carrying out elections, or treating some of their nationals as citizens. Reform is still possible.

Non-violent civil disobedience would be the best course of action. Leaders should be forced, albeit peacefully, to live up to their ideals of justice. Rather than pursuing reform within the social contract, activists must go outside the letter of the law if they are to expect change. Yet while the law shouldn’t bind them, morality still does.

This is why civic leaders such as Martin Luther King Jr. and Mahatma Gandhi were so successful. Their responses to unjust laws were reasonable. They also adopted their rulers’ liberal values and earned widespread support as a result. The same could not be said for acts of violence, or terrorism.

Non-Law Regimes

If the difference between reasonable law and unreasonable law is a fair exchange and a fraudulent one, the difference between unreasonable law and non-law is getting defrauded and getting mugged at gunpoint. Don’t argue against the mugger, protest the mugger, or sue the mugger. Kill the mugger.

These regimes don’t care about legitimacy in the eyes of their victims. The individual is wholly disregarded both in principle and in practice. Instead, statecraft may prioritize ethnic nationalism, religious zealotry, or simply kleptocratic greed.

There is no legitimate relationship between the government and its nationals that justify any restrictions on the latter. The government doesn’t view its people as free citizens, or even child-like subjects, but possibly as insects to be exterminated. People living under these regimes are justified in engaging in actions of necessity, including murder for self-defense.

Non-law regimes are well past the point of civil disobedience. While Gandhi may have been effective in ending colonial rule by a western liberal empire, in Nazi Germany, he would have been shot. Hitler was even puzzled why Britain didn’t just go that route.

Gandhi meanwhile, argued that the Jews should have “offered themselves to the butcher’s knife” and that if he were a Jew, he would voluntarily accept his suffering as a form of protest.

If you’re a Gandhi living under a non-law regime, you’re an idiot.

Why The Three Types Matters

The state is often treated as a single, monolith entity whom we have unchanging duties towards. The relationship between the state and the citizen is viewed as static rather than context-dependent. As a result, modern reformers point to historical social justice movements to justify their own methods of activism. Yet they tend to overlook what types of legal regimes these movements were protesting.

And our duties as citizens depend on what type of regime we live under.

Hoping for justice through existing institutions would be a waste of time under an unreasonable law regime—and would get one killed under a non-law regime. Civil disobedience would similarly lead to a worthless death under non-law regimes but would be illegitimate under a reasonable law regime. And violence is immoral when attempting to change reasonable laws and disproportionate against unreasonable laws.

In future posts, I’ll review the natural law basis for these three laws and will address any questions or concerns with the above categorization.

1. November 24, 1859, with the publication of “On the Origin of Species.”