None of us should have to take fallacious arguments seriously — and yet they don’t go away. Even people I’d otherwise consider intelligent, when they’re dealing with questions of legislative legitimacy or statutory authority (in other words, when their political reflexes are confronted from unprecedented angles) will resort to the most inane and asinine knee-jerk arguments. So it’s worth anticipating even the worst of them.
A few bloggers have referred to what I called The Samsara Fallacy on this blog. (I called it that because I didn’t know the real name for what is a common and illogical argument for bad policy. I guess I still don’t know.)
But when I was recently talking with a certain Texas anarchist (no, not the uncertain Texas lawyer — a different anarchist) about the Natural Law anarchism of Lysander Spooner and Murray Rothbard, he told me that he doesn’t want to appeal to anything they’ve already named a fallacy after:
The Natural Law Fallacy
To which I replied that anyone can name a so-called fallacy after anything they want to.
(I’ll address the confusion around the term “Natural Law” some other time. The short version: “natural” means necessary and “law” means universal; “natural law” therefore means only necessary universals. Evolved cultural connotations around the term “natural” and the whole description/prescription tangle around “law” I’ll leave for another time.)
So speaking of fallacies, iceberg wrote me for some help identifying certain fallacious arguments. But rather than giving him a concise answer to the question he asked, I instead spent a long time answering a question he didn’t ask:
(blue is mine and yellow is his)
Well, the first thing to point out is that they are assertions, not arguments. Best to make sure anyone you’re “arguing” with knows the difference.
If you insist that good laws are laws in accordance with your favorite book, and I say No, good laws are laws in accordance with my intuition, then we have made opposing assertions, but neither of us has offered anything like an argument. Arguments have to proceed from statements that we already agree are true or statements it would be self-contradictory to deny (or a statement you’re willing to concede temporarily, “for the sake of argument”). Fallacies apply only to arguments.
1. It’s wrong because it’s illegal; i.e. – “It’s wrong to use fireworks because it’s illegal”, “it’s wrong to drive without insurance, because it’s illegal”, etc.
The first statement is called legal positivism. The best way to challenge the assertion of legal positivism is to test the limits of the legal positivist’s legal positivism: was it wrong to drink alcohol during prohibition? Was it wrong to let blacks and whites sit together during Jim Crow? Was it wrong to help refugees flee the Nazis? Was slavery wrong? Or was it the underground railroad that was wrong for breaking the slave laws?
This almost always turns into a discussion about majoritarian democracy, which is good, because at least you don’t waste your time arguing legal positivism with someone who actually needs to have their majoritarianism confronted instead. Then the standard questions are again, the majority rule of Jim Crow, the democratic process in inter-war Germany, etc. If your “opponent” is patient enough to make it this far, they’ll probably fall back on a claim about constitutionality, which is either an attempt to slip legal positivism in again through the back door, or it’s a not-fully formed claim to fundamental rights, which is of course antithetical to legal positivism.
One of the main problems with legal positivism is that it offers no guide to making good law. Confronted with the question of whether “we” should ban flag-burning, the legal positivists can’t say anything. All they can do as legal positivists is tell us that it will be wrong after the ban is passed.
Another huge problem with legal positivism in an American context is that it assumes the laws don’t contradict each other. If New York State’s constitution guarantees gun rights, and New York City bans guns, which law will the positivist support? If the constitution says that the Federal government has no powers other than those specified in the constitution, then what’s the status of the vast majority of our current legislation, according to the legal positivist?
Finally, legal positivism assumes the legal legitimacy of the law-makers, that they themselves are obeying the law, which shows that the question has been postponed or pushed back, rather than answered. The question is which laws are legitimate. Legal positivists can’t say “all laws” because laws contradict each other. Different people disagree on what the law is. Either the legal positivists have to come up with a non-positivist starting point, or they have to fall back on the claim of Thrasymachus: might makes right.
2. Implied sanction; i.e. – “because you live/work in this country, you agree to its laws”, “because you know the laws and bought a gun, you knew and agreed to register it with the authorities”, etc.
The implied-sanction “argument” is again, either an assertion posing as an argument, or is somehow supposed to follow from legal positivism. I think the best way to confront it is to trace it back in history. OK, I chose to live here (or chose not to leave) when the laws were already in place, but what if my father owned a gun before they passed the laws? What about the land owners (homesteaders) who were suddenly informed in 1787 that they were “under” a new government and that their old property was suddenly subject to a new authority?
Or again, you can test the limits of the claim: did Soviet citizens violate their implied sanction by participating on a black market, smuggling in blue jeans or smuggling out dissident writing? Did the American founders imply sanction to the Stamp Act, the taxes on tea and molasses, the quartering of British troops? And this will also often turn into a majoritarianism argument instead.
The type of people who offer these assertions are almost never thinking of counterfactuals — but without counterfactuals, you have no right or wrong; you have only what is. In general, the best way to test someone’s principles is to confront them with alternative scenarios rather than the scenarios they already have in mind. For a principle to be a principle, it must transcend the circumstances.
I appreciate it greatly if you can be of any assistance in pointing out which category they best fall into.
I may not have answered what you were asking for, though.
You want to be careful about so-called fallacies. Technically a fallacy is a wrong move in logic. Making as assertion can’t really be a fallacy. The fallacy, if it’s there, will be in the “because” …