Saturday, June 12, 2021

Do not attach the word "law" to anything that you wouldn't want people to mistake for an authentic form of law

In the following passage from his Manual of Political Ethics (1838), Francis Lieber observes (and laments) that when unjust and illegal conduct comes to be known by a name with the word “law”* in it (such as “Lynch law”, in the example that he discusses), people more readily accept it and think of it as legitimate than they otherwise would.  They may even come to think of it as having the authority of law.  In truth, these are as much a form of law as “fool’s gold” is a form of gold.

“No offender would hesitate to acknowledge and claim state punishment as his right, if choice were left him between the state punishment, which, because it is state punishment, requires formal trial, on the one hand, and, on the other hand, those summary proceedings against criminals caught in flagrante delicto, which we find in perhaps all early codes, and sometimes acknowledged to a very late period (Blackstone, IV, 308), or to which an excited people sometimes return, when the regular trial appears too slow for their inflamed passions, as has been the case in those riotous and illegal inflictions of death or other punishment, so unfortunately called Lynch law, in our own country.  I say, unfortunately called Lynch law, for it is ever to be deplored, if any illegal procedure receives a regular and separate name of its own.  By this very application of a technical term it assumes an air of systematised authority, which has an astonishing effect upon the multitude, and in fact upon most men.  Give a separate and technically sounding name to a thing, and you take from it much of its harshness for the human ear.  Many a member of trade’s-unions in Scotland would not have been willing to commit outrages upon the person of his neighbors or even murder, had it not been called slating, or by some other technical term.  The same principle applies to errors in science, religion, the arts.”

* “Law” is not the only word that has this effect, however.