Justice Before the Law

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0:00:07.6 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus. Joining me today is Michael Huemer, Professor of Philosophy at the University of Colorado at Boulder. He is the author of many books, including The Problem of Political Authority, which is the subject of a previous Free Thoughts episode. His new book is Justice Before The Law. Welcome back to the show, Mike.

0:00:26.5 Michael Huemer.: Thanks, thanks for having me. It’s great to be here.

0:00:29.3 Trevor Burrus: Let’s jump right into the title, “Justice Before The Law,” many people seem to think that those two concepts are highly related at least, but your title immediately differentiates them, why?

0:00:43.8 Michael Huemer.: Yeah, yeah, so it’s partly a pun, because you hear the phrase, “Justice Before The Law,” but also, it’s a short version of the thesis. So sometimes the legally prescribed outcomes in the so called justice system are in fact unjust. And in those cases, I argue you should do justice rather than doing what the law requires.

0:01:06.5 Trevor Burrus: How much does it matter the legal philosophy jurisprudence side of this, how we define law, just laws, unjust laws, just legal systems, totalitarian legal systems? Those are all versions of law. So what about if we have a democracy and a representative government it seems that that kind of law is very different than, say, North Korea right now.

0:01:27.6 Trevor Burrus: Yeah, yeah, obviously, some legal systems are more unjust than others, so the law in North Korea is way worse than the law in the United States, right? And actually a lot of what happens in my book is that I criticise the US legal system for having various severe systematic injustices, but I don’t want people to get the impression that it’s bad by world standards. It’s actually excellent, by world’s standards, and towards the end, I mentioned some of the ways in which our legal system is better than other possible legal systems. We allow people to have a defense attorney, we allow people to confront the witnesses, and we tell them what the charges against them are, and they get to see the evidence against them before the trial, so there’s all that stuff which is really good, but still we’re closer to… We’re closer to being just than most societies are, but there’s still a bunch of stuff that’s unjust.

0:02:28.9 Trevor Burrus: Does your thesis need to have a theory of law? Do you need to get involved in say, the heart full of debate or something for what law is if it’s going to be different than justice?

0:02:41.9 Michael Huemer.: Yeah, you might think that morality and justice have some effect on what the law actually is, which I hear from the natural law people, but I only need there to be enough difference between these two concepts, that it’s possible for there to be and unjust law. And I don’t really think that anybody denies that, so there’s the famous saying, “An unjust law is no law at all,” from Augustine. But I don’t think that people mean that literally. Right? Like the Fugitive Slave Laws, so those were unjust. I don’t think the natural law people would say that literally there were no Fugitive Slave Laws. [chuckle] There were these things written down, but they weren’t laws or I don’t think that they would say, “Actually, cocaine use is legal in the United States.” [chuckle] In spite of the fact that the Controlled Substances Act prohibits it, ’cause that’s not a law, [chuckle] ’cause I don’t think they would say that. I think they mean… When they say an unjust law is not is no law at all, what they really mean is like, it’s not a legitimate law, and it’s a morally legitimate law, or it shouldn’t be enforced or something like that, which actually, I agree with.

0:04:02.6 Trevor Burrus: Yeah, so it’s committing you to some sort of positivism. I mean, on the baseline level of your thesis, your only question is kind of, “Is their apparatus called the state that is enforcing this?” And if that is true, then that is sufficient to call it a law for the purposes of your thesis?

0:04:19.7 Michael Huemer.: So one thing is, if I’m wrong about what the word law means, that doesn’t matter, then you can just like rephrase my thesis Justice Before The… Whatever you call these things, like karma, [chuckle] okay? But however, I’m not saying that morality has nothing to do with the content of the law, so for one thing, the actual text of laws often contains moral terms. There’s a stuff about unreasonable searches and seizures, and there’s a thing about, just compensation. [chuckle] You can’t take private property for public use without just compensation. There’s no further guidance on what is just though, so okay, so that’s one thing, but also just if there’s some unclarity in what the law means, then you can reasonably argue that it should be interpreted in accordance with moral principles, and there’s the Dworkin thesis about how you should take the most coherent moral view that’s consistent with the text of the laws. But all of that still allows the possibility that sometimes there are laws that are simply unjust.

0:05:28.1 Trevor Burrus: So what about defining justice? So we talked about defining law, but how is justice going to be defined?

0:05:34.3 Michael Huemer.: Yeah, basically, justice is giving everyone their due, and what does that mean? Well, people have rights, and so you have to respect their rights, like they’re owed respect for their rights. Also, though, if somebody has committed a crime, then what they deserve is punishment that’s proportionate to the crime. If somebody has not committed a crime, what they deserve is to be acquitted. They deserve to not have anything done to them and that’s the basics of what justice is.

0:06:04.1 Trevor Burrus: So you don’t feel, ’cause you make some very big claims based on some very, I wouldn’t say simple arguments but I think many people would regard your arguments who… Many people who are familiar with philosophy in particular and we’ve talked about this before when you’ve been on the show that your approach to philosophy is very much about intuition and seeming-​ness for lack maybe you would not like that term but seeming-​ness is important to your philosophy which makes it seem less obscure and more almost simple-​minded than what people come to expect from philosophy that seeming-​ness matters at all like this seems wrong. Well, it just seems wrong that’s fine what is it why does it matter that something seems wrong.

0:06:50.7 Michael Huemer.: Yeah, yeah, well, in fact all philosophies are based upon what seems to the person without philosophy to be the case, now like the reason why my arguments more often seem like simple, is that, I’m not trying to deliberately overcomplicate things, and my view is you know like, you should have like the simplest theory that’s compatible with our evidence is most likely to be correct, and, but, also, but I think like other people have, many thinkers just have a taste for intellectual complications and so they like to complicate theories as much as they can. But, like I have simple arguments like, this is why you shouldn’t convict someone for violating an unjust law, because, in general, you shouldn’t knowingly bring about unjust harms, don’t knowingly unjustly harm someone, like that seems right to me, and being punished for violating an unjust law is an unjust punishment, and convicting someone causes them to be punished, so don’t…

0:08:05.7 Trevor Burrus: Well, does this matter to rule of law concerns, are they wholly irrelevant to this, because we could talk about something like the Controlled Substances Act, or the Fugitive Slave Law and say there was… That was a time when a lot of people that seemed like a just law to people, and it’s still on the books and until it’s removed from the books, then that law should be enforced because that’s what the rule of law is otherwise the state is pure force, no rhyme or reason just pure force. So does it does the rule of law, is one consideration matter to this unjust law’s thesis?

0:08:46.2 Michael Huemer.: Yeah, yeah, so, so we’re thinking about like the drug laws, or? Yeah.

0:08:51.1 Trevor Burrus: Well, any law like until such time as the law is removed…

0:08:55.6 Michael Huemer.: Yeah, so I mean like, I should say I’m presupposing that the drug laws are unjust, when I use this example, and if you want more about that, read my paper, America’s Unjust Drug War, but, yeah, okay, so I say, yeah, like, if you’re on a jury and the defendant is accused of violating the drug laws, you should vote to acquit, regardless of whether they did it or not, and, why? Because drug laws are unjust, you shouldn’t unjustly harm someone. And then people say like, “Oh, but what about the rule of law?” And I’m not even sure what that means, is that just like a completely question-​begging objection? Like the rule of law means you have to be punished if you violated the law? Right ’cause then…

0:09:39.7 Trevor Burrus: No, I think the rule of law means that… It’s, I agree, it’s difficult to define, but there’s a difference between saying, Bob the policeman decides whatever he wants to punish you for, and sometimes Bob does that according to just, and sometimes according to unjust ideas that pop into his head randomly without any other thing that controls his attitudes, versus that Bob does not entirely get to decide this, and there are other things that decided maybe a more legitimate thing than Bob, I mean Bob probably is not the arbiter of all moral justice and so that therefore Bob following a law is at least more often than not is what the rule of law is.

0:10:19.7 Michael Huemer.: Yeah, like let’s distinguish two things right. I’ll call it the positive and the negative rule of law, so the negative rule of law is you don’t get punished unless you violated the law, right? So like the cop cannot decide to arrest you when you haven’t broken any law. Positive rule of law is, you have to be punished if you did violate a law, and so, okay, and, yeah, I believe in the negative rule of law, I don’t believe in the positive rule right? So like and I don’t see what the big problem is if Bob like doesn’t arrest some people or the cops sometimes don’t arrest people who violated the drug laws, which by the way, is happening all the time anyway, mostly because, the cops are just not that good at their job, right? Like most of the time when you break the law you don’t get arrested at all, not because the cop decided not to arrest you, but they just don’t know, they are gonna be there.

0:11:13.6 Trevor Burrus: But the idea is that we are concerned about the rule of Bob, let’s call it for this discussion, the rule of Bob, or the rule of Kim Jong-​un, or whoever, that the rule of Bob, is inherently suspect due to its… The discretion that’s allowed, in any sense of a role that Bob has to play as a cop, as an attorney, as a prosecutor, as a judge, that is beyond his pure moral sense, ’cause it seems that you’re kinda advocating a system of complete subjectivity of enforcing or not enforcing laws even for actors within the state, and based on whether or not they understand that something is moral or immoral which seems dangerous, correct?

0:12:00.6 Michael Huemer.: Well, so I don’t completely see the danger, so right, so, again, drawing the distinction between the negative and positive rule of law principles. So I don’t think anyone should ever be punished for not breaking the law, but sometimes you shouldn’t be punished even though you did break the law. And I don’t see how this is dangerous, and you might worry about like, maybe there could be favouritism or corruption like, maybe you acquit people who are your friends, even though they did something that was really wrong, okay, and, of course, if that happens then, somebody should like prosecute you for corruption or whatever, or fire you from your job or whatever, and obviously, you shouldn’t do that, like so obviously you shouldn’t just like let people go who did serious crimes, right? But like that fact doesn’t mean that you shouldn’t let people go who didn’t do anything wrong. So and you know like when I say, oh, like you should acquit people who violate… Who only violated an unjust law, I’m not saying you should acquit anyone at any time for any reason, all right. I’m not saying that you should have put people on a whim.

0:13:05.6 Michael Huemer.: And, I’m not saying that any arbitrary opinion that you have, you should act on, like if you arbitrarily for no reason decided that the murder law is not just, that does not mean that now you should acquit murderers, rather you should correct your ridiculous opinion because the murder law isn’t unjust.

0:13:27.3 Trevor Burrus: So, what about a law that prohibits the murdering, going back to the Fugitive Slave Act, that prohibits the murdering of the slavers who are trying to catch those slaves. There could be some people who disagree about whether or not defending with lethal force in that situation is just or unjust. So, in those situations, could we… We keep bringing up the the drug war, and I’m with you, it’s a… It’s quite morally clear, that this is… It’s unjust to put someone in a cage for putting something into their body. I agree with you entirely on that. But what about the harder case, when you can use lethal force, when you can protect someone say from slavery with lethal force or just non-​lethal force, and other many, many other examples that we can come up with of less clear.

0:14:16.4 Michael Huemer.: Yeah. Like, in the slave case, like I think… No, yeah, the slave can totally defend himself. The third party assault against the slaver stuff, but yeah, but like so, but there are cases that are unclear, but then that just means it is unclear whether you should acquit or convict, right? But that’s just the way the world is, like sometimes it’s unclear what you should do. And then what do you do? Well, just try to figure it out as best you can, right? I guess, and, but, like most people are not that good at it like among other things, you should read the literature ’cause there’s going to be like a… If there’s a controversial issue, there’s going to be like some discussion of it among the smart people among other systems, stuff like that, and you should read that and see, see if they have good arguments and such.

0:15:07.1 Trevor Burrus: This seems highly demanding, and just even for a system wherein there is widespread moral disagreement and widespread ignorance of people who not only will not be reading that and but they will not understand it, but they will be asked to be on juries. And we could empower people with… Let’s say not having Mike Huemer’s moral sense, empower them to make decisions in your thesis, it should be, well it’s something like, “You should have a good moral sense, you should read about these things, and then when you’re an actor in the criminal justice system, you should act on that moral sense.” But that requires a lot of these people, and so maybe, so maybe just like the backdrop of being like, just follow the law, like that’s the most we could ask of people, in many of these situations because they’re not moral philosophers, like, because and so it isn’t something they can just follow the law.

0:16:00.6 Trevor Burrus: I point out that, you know jury duty is pretty demanding, evaluating the evidence in many cases is pretty demanding and like, you can just sit there for hours and hours, right? Also, like most cases are not morally controversial, but in most laws there is not really a big moral controversy about them. So right, so and I think that is to say, it’s not that demanding, but in most cases, but maybe it’s demanding in some cases. Okay, but nevertheless like, there’s this defendant who is going to go to prison for like many years, like, he will lose many years of his life. And so like the pain that is going to be inflicted on that person is much bigger than the suffering that you’re going to undergo in having to figure out whether it’s just to punish him, so it doesn’t seem so demanding in that context to say, Well, you got to exert some significant effort to make sure that he really deserves to be punished. And by the way, like in the end if it’s like… I think if there’s no very strong case that he deserves to be punished then you should acquit. So I guess after looking at this, you look at the issue, and you’re like it’s totally unclear that he did anything wrong, then you should acquit.

0:17:16.6 Trevor Burrus: It’s a presumption, the presumption of innocence, which we do have.

0:17:19.9 Michael Huemer.: Yeah. We have that presumption of factual innocence, but also, there should be a presumption of moral innocence or something like that. If there’s no very strong reason why the action that he did should be considered wrong, then you should consider it okay.

0:17:32.8 Trevor Burrus: Well, what about, you mentioned, ’cause you get into, of course, many different aspects of the criminal justice system in particular in the book. You mentioned prison. It just seems like there are relevant considerations, for example, how nice the prisons are. In Norway you have Anders Breivik, who killed 77 people in a rampage who, sued for his human rights violations, ’cause he couldn’t get a PS4, I believe is what, is what the problem was. So, that should be a consideration? Like how nice prison is? If you’re one of the people who’s voting to acquit or convict or not?

0:18:13.2 Michael Huemer.: Well, that is a consideration. But I don’t think this requires very detailed knowledge about whether they get PlayStation threes or fours. But, like the fact that there’s widespread abuse in the prison, it’s relevant. And I think that raises the raises the bar for when somebody deserves to go to prison. Basically like, yeah, like I think serious violent criminals should go to prison, but other people generally shouldn’t, right? And that’s partly because there’s a significant risk of severe abuse in the prison.

0:18:49.6 Trevor Burrus: So you’re not a prison abolitionist though?

0:18:52.0 Michael Huemer.: No, because I’m not insane.

[laughter]

0:18:57.1 Michael Huemer.: And like I’ve seen these prison abolitionists like, some association of trial lawyers who say, and we need to abolish prison now, whatever and all this rhetoric on their website, and then… And I didn’t see anything about and what’s going to happen to all the murderers that we let free. What are they gonna do after we left them free? And they’re just gonna be murdering the rest of us, and it’s as if they have no idea that there’s such a thing as violent crime, anyway. Yeah.

0:19:25.3 Trevor Burrus: Or maybe more like the Ted Bundys, ’cause most murderers even murderers age out of murder and don’t end up being serial murders, they might kill once in a crime of passion, but by the time they’re 35, they’re not really a risk anymore, so it’s more like the Ted Bundy-​style, correct?

0:19:40.4 Michael Huemer.: Well, and 35 sounds low, I think when they’re 65, they’re gonna stop, but you can commit a lot of crime, so most criminals are going to commit more crime, if they’re not locked up, and most of them commit more crimes after being released from prison, after they served their term, even if it’s that as well, but if they didn’t have the term at all, they’d be committing more crime during that time and…

0:20:04.9 Trevor Burrus: Well, this seems like your theory is, we’re kinda breaking it down with these… Again, when I say simple, I don’t mean that as an insult, I like your approach, but one thing it would need then is a theory of punishment, which is usually not a very simple discussion, like what is the purpose and uses of punishment and how can the state or does the state even need to be involved in this, how can someone… Some entity put that on to someone else and what is the reason for it?

0:20:35.0 Michael Huemer.: Yeah, yeah. Basically, I think the traditional reasons all have some force, so there are multiple reasons why we punish people, right? So if we could rehabilitate people, that would be great. We’re really not very good at that. But anyway, deterrence, I think is a legitimate rationale and there is some deterrence effect from punishing people, but social scientists say that most of the deterrent’s effect has to do with the certainty of actually getting caught rather than the severity of the punishment, so it’s more efficient if we could invest in at least having something done to all of the criminals, right? Or almost all of the criminals rather than giving really severe punishment to the relatively few that we catch, which is kind of what we’re doing now. But anyway, okay, so deterrence is relevant, but also, I argue that, retribution has to have something to do with it, because it’s okay to punish somebody who actually did the crime, and it’s not okay to punish somebody who didn’t do the crime, but who is believed by the public to have done it.

0:21:40.9 Trevor Burrus: You mean like making an example of someone even though they didn’t do it.

0:21:44.8 Michael Huemer.: Yeah, right? So let’s say that this person, let’s say Kyle Rittenhouse is widely believed to have been guilty, but you know that he’s not guilty, which is a totally realistic example if you were in the trial, so… Anyway, and then you’re like, Okay, so he’s believed to be guilty, so if I punish him, that’s going to create a deterrent effect. Other people are gonna say, See, murderers get punished. So then I don’t wanna commit a murder, okay, and almost everyone… Maybe if I didn’t mention that it was Kyle Rittenhouse that I was talking about, almost everyone would agree. No, you can’t punish an innocent person just to create a deterrent, but that’s not to say that retribution is the whole story. It’s just to say that it’s a necessary condition on just punishment, most people agree that there’s some kind of proportionality requirement, so retributive punishment, like punishing somebody because they deserve to be punished because they do something bad, in order to be just… It has to be roughly proportionate to the crime, you can’t give somebody a punishment that’s 1000 times worse than the things that he did.

0:22:54.9 Michael Huemer.: And we’re not exactly doing that, but we might be giving punishments that are 100 times worse than the things a person did. Like a case where a guy forges the check then he winds up with a life sentence or something, I guess… Yeah, that’s it. That’s thousands of times worse.

0:23:12.0 Trevor Burrus: Well, let’s go from the, kind of walk through some of the places of injustice that you’re pointing out, because it still is interesting how rogue this seems to me that everyone’s empowered in Mike Huemer’s world to be rogue enforcers of senses of justice. So let’s start at the law level, there are unjust laws that are being enforced, so that’s kind of where it starts, and so then the prosecutors… In your view, the prosecutors, cops, other actors in the system, have a moral obligation to ignore those laws.

0:23:52.6 Michael Huemer.: Right, yeah. The duty to disregard the law, yeah. So police should not arrest people for drug crimes, it’s morally wrong, and arresting somebody for a drug crime is morally comparable to kidnapping a random person on the street and holding them captive in a cage for a few years.

0:24:13.0 Trevor Burrus: Now, what about the attorneys and the situation.

0:24:17.1 Michael Huemer.: And then like the prosecutor, if you receive that case you should refuse to prosecute it, of course, he’s gonna lose his job [chuckle] the prosecutor and the cop will probably loose their jobs if it becomes known that they do this, but that’s comparable to saying like a mafia employee is going to loose their job if they don’t murder people.

0:24:39.9 Trevor Burrus: Well, in your previous book, The problem of political authority, do we have to assume that there’s no such thing as political authority for this thesis? Because at least the idea is that the laws passed, sometimes a democratic legitimate government will pass unjust laws, and that therefore the people who enforce those laws are playing a role that is under some sort of conceptually metaphorically underneath the passing of laws of which we pre-​suppose that not every law will be just, and so where you fix it is up here, not down here, if your job… If your legitimacy as an actor is to work for the state and enforce the laws that the state passes via legitimate methods, unless we deny the legitimacy of those laws, even unjust laws.

0:25:33.4 Michael Huemer.: Yeah, I mean… Well, I wanna say like… Everyone distinguished two thesis, right? So in the debate about political authority, there’s the a common thesis of the political obligation that you’re obligated to follow the law, but what that issue here is a stronger idea that you’re obligated to actually help to enforce the law, it says like, “A cop by refusing to arrest people, who is refusing to arrest drug criminals, is not actually violating the law, he’s just failing to enforce the law.” The political obligation thesis entails that, “Well, they shouldn’t be using the drugs, but it doesn’t entail that you should arrest them for doing using it.” So okay, somewhat for the other actors, prosecutor is not legally required to prosecute someone if he doesn’t think that the prosecution is just. And then a jury isn’t legally required to convict someone even if they know that the person committed the crime, even if that was proven beyond reasonable doubt, etcetera. Totally legal for them to say, “No, we’re acquitting because we just don’t agree with the law.” And by the way, that’s part of our system, that’s why we have the jury system so that they can do that. And so we have the jury system. Yeah.

0:26:53.7 Trevor Burrus: I wanna get back to the attorneys as someone who went to law school, it also seems to entail from your thesis that the defense attorneys, I mean, the prosecutors too, but there’s different moral obligations purportedly on the two, so the prosecutors are supposed to do justice, that actually is in the prosecutorial code.

0:27:15.0 Michael Huemer.: Yeah, yeah. Not that they actually…

0:27:18.0 Trevor Burrus: But that is ’cause they… And so, but the defense attorneys are obliged to zealously represent their clients to the fullest extent of the law as an agent within the system to use all the tools that had been given to them from on high, in this metaphor. Now it seems that it would follow that a defense attorney who zealously tries to acquit a person they believe is guilty is also performing it wrong.

0:27:45.5 Michael Huemer.: Yeah, yeah, that’s clearly, obviously wrong. Now okay, now lawyers are often outraged by this thesis, but anyway. Let me give an analogy, so let’s say that you have a friend, this is a good friend who confesses to you that he is a serial murderer. And after confessing this, you try to convince him not to commit any murders, but he won’t promise not to commit any, but he’s not outright telling you that he will, but he won’t promise not to, but what he would like you to do is help him get away with his most recent murder, give him helpful advice on where to hide the body or how to lose the police or whatever. Okay, what should you do? Obviously, you cannot help him. You should call the police immediately as soon as he’s out of the room, so he wouldn’t get mad at you and kill you. But you should call the police and get him arrested, because otherwise there’s a high chance that he murders more people and it’s gonna be your fault. And now how is this different if he paid you to help him get away with this crime.

0:28:56.2 Trevor Burrus: Well…

0:28:56.7 Michael Huemer.: And you’re a professional help-​criminals-​get-​away-​with-​crimes person, that’s your job.

0:29:03.2 Trevor Burrus: Well, the difference is, again, not to keep going back to this rule of law idea, but a defense attorney’s job, in one conception of it, is to ensure that the government has to go through, and you brought it up, like all the burdens to convict someone and put them into a cage or maybe even execute them. And it’s not just their client, it’s the laws as applied by the nature of the rule of law system we have, which says, “So, yes. The cops illegally searched this guy, found a body in the trunk, but we need to make it clear that the illegal search is not allowed and that will affect other people down the line.” Which is very different than your friend. If I’m hiding, if I’m telling my friend how to get away with murder, it’s very different ’cause it’s not like that becomes a rule that is applied in future cases and can do grave injustice if applied by prosecutors, by the Supreme Court, in future iterations where that person is innocent.

0:30:07.5 Michael Huemer.: Yeah, yeah.

0:30:08.2 Trevor Burrus: And you tried to exclude that evidence.

0:30:10.0 Michael Huemer.: Yeah, yes. So people sometimes say this about why you have to go to defend your client because it’s good for society or something like that, but I would note that they don’t, in fact, believe that. So if there is a case in which the interest of your client conflict with the interest of other defendant, you’re supposed to serve your client. So that’s opposed that like the police have done something wrong and you could file a lawsuit or whatever, the government did something wrong, you could file a lawsuit, which would not be in your client’s interest. And you can imagine reasons why this would be the case and go gonna cost him more money, or he can make a deal with the government which will be advantageous to him if he agreed to drop his lawsuit or whatever, but it will be in the interest of the rest of society and other defendants if you file this lawsuit. You’re supposed to not do it because it serves in the interest of your client, which shows that, “No, actually, this whole ethic about defense attorney isn’t based upon helping other defendants or helping society in general.”

0:31:09.7 Michael Huemer.: And I have an explanation of why we have this ethic, it’s because it’s in the interest of defense attorneys, because your product is more valuable if you get to say, “I’m just going to serve your interest,” like the interest of the person who’s paying you money, no matter what, no matter how bad you are, then your products are more valuable so you can charge more money.

0:31:31.7 Trevor Burrus: I still think that we’re missing this… So we might need to abridge the defense attorney code of ethics to say, “You might even need to sometimes work against the interests of your client, but sometimes when the interests of your client which could include getting them off of a murder wrap that they almost assuredly did, does serve the interests of other defendants,” so we might have just say, “Sometimes they need to act affirmatively against their client’s interest, but that doesn’t follow that therefore they should never act to acquit their clients if the government hasn’t gone through the proper procedures to muster the evidence to properly convict their client.”

0:32:12.7 Michael Huemer.: Yeah. Yeah, so… And I do want to clarify that, my thesis isn’t, “You should never defend guilty people.” My thesis isn’t, “You shouldn’t… ” my thesis is that, “You should not intentionally pursue injustice.” So if you believe that getting somebody acquitted, who is guilty, produces more justice overall, then that’s ethical, okay? However I…

0:32:40.1 Trevor Burrus: That’s a possibility, that there… I could imagine such a situation.

0:32:43.5 Michael Huemer.: Yeah, so… Especially if the law itself is unjust, then, yes, then getting the guilty person acquitted is more just. But also, you could argue that somehow getting a guilty person acquitted is going to, send such a message to the government to not commit abuse in future cases, that it will reduce the amount of rights violations or something. However, I do think that that’s kind of a tenuous argument. It’s pretty speculative. And so, if it’s like, you’re trying to get a murderer acquitted and then, after you get them acquitted, then he goes out and kills three more people before he’s eventually caught and put in prison. Then you say, “Yeah, but maybe that prevented some other rights violations by the government.” That’s really kind of weak. [chuckle] So if it was a more minor crime, then you can make the case better.

0:33:41.7 Trevor Burrus: So do you have a… It also seems… And it’s in the book that one thing that’s entailed here is challenging the whole profession of being a lawyer and the licensing system and everything that goes into making the legal system more expensive. Is that… That is a relevant concern too, here.

0:34:01.7 Michael Huemer.: Yeah. As I was suggesting a little bit ago, some of the conventional legal ethics doctrine is designed to maximize the benefit of lawyers. And part of why this would happen is that, “Oh, well, conventional legal ethics, principles are written by lawyers.” There’s a conflict of interest there. Anyway, so but I like to bring up this point. So here’s something that I found in the ABA model rules of professional conduct that, you can’t reveal a confidential information of your client that’s detrimental to your client even if doing so would serve the interests of society, prevent innocent people from being murdered or prevent innocent people from being convicted for a crime. Like if somebody else is on trial for a crime that you know your client committed, you’re not supposed to reveal that you know your client committed it. However, you may reveal confidential information that your client told you, if doing so is necessary to collect your fee. [chuckle]

0:35:09.4 Michael Huemer.: So, let’s say, you know about your client having, hidden some money illegally or something. And if revealing that information would enable somebody else to collect money from your client, you can’t do that. But if it would enable you to collect money from your client, you can do it. [chuckle] So that just shows…

0:35:29.3 Trevor Burrus: This is true. I could confirm, yes. Well, look, I’m not gonna be… I’ll be the last to defend lawyers, even as one myself, especially when you look at the rules that they write for themselves. But, back to a similar point here about confidentiality, if we took… If it’s important that a defendant needs to be able to confide and trust their attorney, that their attorney will not decide, based on their own sense of justice, when they can and can’t reveal confidants to whoever, prosecutors, cops, whatever, then you undercut the entire system of trust, which is quite important too. So, maybe that means that there’s hard cases, where there’s easy cases… There’s, Guy told me he’s gonna murder again, although that is an exception to legal ethics, if there’s an imminent thing. But I know something that will prevent harm and I’m going to break that confidential thing and I will still generally adhere to the rule, that on these non… Fairly obvious preventing injustice… Breakings of confidence. But generally, you shouldn’t do it, in order to preserve this system of confidence. Would that be acceptable within… If it’s unclear to you… If it’s unclear to you where the justice lies, you should err on the side of preserving the confidence to preserve the system itself? But when it’s clear to you, you probably should break confidence.

0:37:03.8 Michael Huemer.: Yeah, I’m not really sure. I don’t… I don’t quite see why it’s so important for criminals to be able to trust their lawyer, and to trust their lawyers, so much, that they can confess to blatant crimes. So, what if we had a system, in which, after you commit a heinous crime, you can’t confide in anyone because anyone will be obligated to turn you in, including lawyers. Why would that be worse? Wouldn’t that be better?

0:37:36.0 Trevor Burrus: In terms of, yeah, in terms of… So if we’re assuming everything else for your system, so the crime itself is a real crime, it’s an actual injustice perpetrated, a rights violation to other people, and therefore, punishment is warranted, and so that anyone who has information to that, whether or not they’re an attorney, is obliged to try and remedy that injustice.

0:37:55.2 Michael Huemer.: Yeah. Now, so… You might be worried about cases where it’s unclear. The client might not know whether he you did something wrong or, more precisely, might not know whether his attorney would consider his action to be wrong. And then he might be unsure whether he can confide in the attorney, okay, and there’s some cases like that. But I don’t know, I don’t see why this is such a big problem. And in comparison with the majority of cases in which it’s pretty clear, I would also note that, I’m pretty sure defense attorneys are going to be extremely biased in favor of the defendant. So, if you’re not sure whether, even a defense attorney would think that you did something wrong, it was probably wrong. [chuckle] And so, I’m not all that worried about that. Why are we not worried about all the harm that can be caused by all these criminals?

0:38:48.4 Trevor Burrus: As the primary thing, yes. But so the other side of this prosecutorial ethics, I imagine that you don’t believe in immunity for misconduct on the behalf of prosecutors?

0:39:03.5 Michael Huemer.: Oh yeah. Yeah.

0:39:03.9 Trevor Burrus: Even good faith?

0:39:04.3 Michael Huemer.: I wanted to say the remedy if the government misbehaved, is that the government should be punished, not that the defendant should go free or [chuckle] exclude the evidence they collected. You should just punish the people who broke the rules, but then still punish the criminal. Anyway go on.

0:39:21.8 Trevor Burrus: No… And, well, it makes sense, again and if we take your view from the kind of top on down, because the prosecutors in this situation are not imbued with any obligation to enforce laws that they don’t think are just, although again, I find it interesting how a prosecutor should treat a very… A close case in this situation. When can you resort like, resort to some theory of authority or ethics to decide to prosecute when you’re not… It’s maybe not clear to you that thing should be a crime, but you’re not confident in yourself to make that determination. Is there no situation where you can resort to a separate body of ethics or role playing ethics, as I’m asking in this, to tell you what you should do? And if there is no such situation, that’s again, going back to what I said about jurors, it’s asking a lot of people in their ethical systems.

0:40:24.9 Michael Huemer.: Yeah, no, that’s true. But I mean, it’s just that some situations ask a lot of people, right? Like if you’re in a situation of deciding the fate of somebody where, whether their life is gonna be totally ruined or not, well, that’s a demanding situation. And their… Your ethics, shouldn’t say that you can take that lightly and not putting in a lot of effort to find out if you’re doing the right thing. Okay. But now, anyway, like your question was about if it’s unclear whether the person should be punished for something, like maybe you’re not sure where the law is just or unjust. And I generally think if you’re unsure, you should probably err on the side of not punishing the person, so if there’s a serious question about where the law is unjust, you should probably just not prosecute those cases. Yeah. That was that, right. And then…

0:41:17.0 Trevor Burrus: I think that’s probably true.

0:41:18.8 Michael Huemer.: I mean, and the rationale is it’s worse to punish someone unjustly than it is to fail to punish someone justly, right? Like if there’s a time when you could have punished someone and it would’ve been just, but you didn’t punish them, okay, that’s bad, but it’s not as bad as the time when you punish someone and it was unjust, right? And so that’s why you should err on the side of not punishing.

0:41:42.4 Trevor Burrus: It’s interesting ’cause your book focuses on actors within the criminal justice system but kind of given the straightforwardness of your thesis, many listeners might be wondering if your thesis gives obligations to even normal people, to either… Even outside of say serving on a jury, ’cause definitely you think serving on a jury, you have a obligation, but does it… Is there an obligation of resistance that would come in to say of not talking to cops when they ask you, “Where did someone go?” Based on the idea that the drug war is wrong or something like that, that you had… There’s some affirmative duty of even resistance to individual citizens in the criminal justice system?

0:42:28.1 Michael Huemer.: Yeah. That seems right to me too. If the cops are enforcing an unjust law, then you should not help them and you’re not legally required to so you’re not gonna be in trouble. So that’s not an unreasonable request, right? Not an unreasonable demand.

0:42:45.9 Trevor Burrus: Should average citizens presume that they’re enforcing unjust laws? That they’re… Your book is a pretty damning indictment of the entire system from top to bottom to the point that it seems that the presumption should be resistance by anyone who at all kind of touches on the criminal justice system, whether that’s being questioned by cops, obviously in a jury situation, being a witness for a prosecution. Should someone lie on the witness stand if the prosecution that is happening is for an unjust law?

0:43:17.8 Michael Huemer.: Oh, Should you lie? The only issue there is that you could potentially get in trouble, although I think that would be rare. I think that would be very improbable, so maybe that isn’t a big concern, but yeah. So clearly you shouldn’t gratuitously help an unjust prosecution, right? If there’s… If you can buy me the prosecution with minimal cost yourself, you should do so. Of course you could just get out testifying by making it clear in advance, of what you were gonna say [chuckle] and then they won’t call you.

0:43:52.4 Trevor Burrus: So I’m trying to figure out what our listeners will take away from that is what I was asking about, in terms what kind of approach they should take to the criminal justice system. Is there… I mean, mate, you’re not a policy guy, so they… In terms of reform, is there any way to fix some of this stuff? Maybe the biggest one could be jury nullification in terms of practicality without much danger. There’s no danger if you do serve on a jury and you want to acquit against the evidence, you cannot be charged in any way. Is there anything else that you think is like low hanging fruit?

0:44:26.6 Michael Huemer.: Yeah. So this is my advice for possible jurors. So first of all, you have to lie in order to get on the jury. So you have to pretend that you don’t believe in jury nullification and that you will uphold the law no matter what. Now this is because judges are bad and because judges are undermining the system, as it was designed to work, by telling people that they can’t do jury nullification, right? So anyway, and then excluding people illegitimately. But anyway, okay, so after you lie, get on the jury, then also in the jury room, you should pretend to not believe the factual evidence either. And I say this because there was a case in which a juror was removed and replaced with an alternate by the judge because he was advocating during nullification. And then there were some appeals about whether this was an error on the part of the trial judge, and then… And the decision that came down was it was an error to remove that juror, but not because of jury nullification, but because in addition to advocating jury nullification, that juror was also saying that he didn’t believe the factual evidence.

0:45:34.6 Michael Huemer.: And so was there any argument if… Because that might have made a difference to the outcome of the trial and stuff, so you should pretend to not be convinced by the factual evidence, possibly in addition to thinking the law as is unjust. But anyway, and then, it’s easy to get out of jury duty which most people want to do by just mentioning jury nullification, but it’s morally better to get on by pretending that you don’t believe in jury nullification and then, and you like do some justice. And of course like most most cases, I think most cases are not unjust prosecutions, maybe, and maybe only a third of prosecutions are unjust prosecutions, so two-​thirds of the time they actually did something wrong. What else? What else was I going to say? And, oh, obviously we need to reform the… We need to reform the system like, judges should not be allowed to give people these erroneous instructions. Judges are constantly telling people that they can’t do jury nullification, which is a lie, and is recognized by judges to be a lie. They know that you can do it and it’s legally valid if you do it, but they don’t say that, and the jury members should be informed of it.

0:46:49.4 Trevor Burrus: And other actors probably have some, maybe, some similar type of obligations in your views such as, so if a cop explicitly said, “It is my intention to not enforce all the drug laws of this jurisdiction and other unjust laws as I deem fit,” he is probably not gonna go very far in the professional world of being a police officer so in that situation should you lie about your commitment to enforcing unjust laws in order to be put into a place where you can actually decide not to enforce unjust laws?

0:47:23.2 Michael Huemer.: Yes, yeah, you should do that. So I mean, probably no one is going to ask you that ’cause it’s not going to occur to them, so, but you should not volunteer any information that you don’t believe in the current practices, right? Now you should just like, not find any drug criminals, right? Now I think you might still, like, you might still eventually lose your job for not like not arresting enough people or something, like, shit, not clearing enough cases. But, like, still that’s better than being complicit in, if you’re unjust.

0:47:56.8 Trevor Burrus: So, if, it, fully taken your thesis is law totally irrelevant, I am so sorry to say, is it completely irrelevant… Does it lack anything beyond justice? That doesn’t it have any characteristics, so it’s like, and again, so, and we talked about this at the beginning but it’s still, now that we flushed fleshed it out.

0:48:21.2 Michael Huemer.: No, yeah.

0:48:22.2 Trevor Burrus: It has no characteristics that matter beyond its justness or and unjustness?

0:48:27.5 Michael Huemer.: Yeah, so I don’t want to say that exactly, what the law says is completely irrelevant, I don’t want to say that. I think what the law says can be morally relevant. It’s like what you should is determined by morality, which exists independent of the law but legal facts can influence some moral facts. And so, the example that I like to give and I don’t know, pro-​law people are not satisfied by this, this isn’t going far enough for them but, anyway, here is the example like, I buy some land and then there is a question of whether I get to drill for oil on my land, and like, there’s, my neighbor doesn’t want me to drill for oil ’cause he is an environmentalist or whatever. Okay, and then, so whether I am allowed to do it I think it’s partly dependent on what the law says, unless I have a contract, that says that I get to drill or that I don’t get to drill, which it probably didn’t say, it’s to then… What I get to do is partly determined by what the law says because that is what I should have assumed that I was agreeing to when I bought the land. Right, like, at the time that I bought the land even if I didn’t look up to the law I would have known that if I looked it up, whatever it said, that was what I should expect that I am getting when I buy it. And so, that’s why the law influences whether the just revolution is happening.

0:49:49.4 Trevor Burrus: But that’s, the morality or immorality of that situation is less clear than most of the things that we’ve been discussing?

0:50:00.6 Michael Huemer.: That’s right, yeah, yeah, so, the thing is there are some things that are not determined by independently-​existing moral facts, that are not determined by natural law so to speak. And so they have to be settled by human-​made positive law. But, the human-​made positive law can’t just reject clear moral principles like the… You can’t just make a law that says people don’t own themselves, and therefore like you can enslave other people, I think. You can’t do that because that’s just violating independent people.

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0:50:47.7 Trevor Burrus: Thanks for listening. If you enjoyed Free Thoughts make sure to rate and review us in Apple Podcasts or on your favorite podcast app. Free Thoughts is produced by Landrey Ayres, if you’d like to learn more about Libertarianism, visit us on the web at lib​er​tar​i​an​ism​.org.