The blog Thoughts on Liberty recently posted a piece arguing that Snowden should face punishment for his actions. The main argument:

In short, I’m not hugely happy with the idea of people breaking the law for reasons of principle (even when those principles are very high minded) and then being unwilling to take the rap if caught. If we all took it upon ourselves to break the law whenever we felt like it because reasons, things would go to hell in a handbasket pretty quickly. For every Edward Snowden there are people committing far more serious crimes they also believe to be sanctioned by their consciences: FGM. Honour killings. Vendetta. And applying it selectively is the fastest and surest way to destroy the rule of law, particularly the requirement (which Hayek sets out with admirable clarity in The Road to Serfdom) that laws be applied consistently. We can’t let people off simply because they happen to break the law in ways we like. So Socrates drank the hemlock. Cicero waited patiently for his executioner. Thoreau and King went to jail.

I’m too busy to write a long response to a short argument, but here’s what I see as wrong with this:

A. First, it assumes that governments have authority. (Authority = the thing that makes you have a duty to obey the law because it’s the law.) But it’s pretty much the consensus in political philosophy that governments don’t have authority, since none of the arguments (consent, hypothetical consent, tacit consent, democratic equality, good Samaritanism, etc.) for government authority work. Anyone familiar with the state of political philosophy would thus know that it’s very controversial to assume government authority, and would thus recognize that she has the burden of proof to establish there is any authority whatsoever. This article just assumes there is authority without argument.

B. Second, even if governments did in general have authority, they don’t have authority to do whatever they please. So, even if I had a duty to pay my taxes, it doesn’t mean that I have a duty to do just whatever my government commands me to do. If governments have authority at all–and it’s not clear they do–their authority is sharply delimited. Snowden revealed that the government was doing something it had no authority or legitimacy to do. To take an obvious example, Alan Turing was forbidden from engaging in homosexual intercourse. But that was far outside the rightful scope of the British government’s rule, and so he had no duty to obey that law, even if we suppose, contra political philosophy, he had a general duty to obey the British government.

C. The argument above commits an elementary fallacy. It equivocates between two sets of claims, 1 and 2:

You may break an unjust law. You may break a law you know to be illegitimate and non-authoritative. You may break any law you believe to be unjust. You may break any law you believe to be illegitimate and non-authoritative.

Dale complains that we can’t just have people break any law they dislike. Even if she’s right about that, that’s not what anyone defending Snowden is saying. Snowden should be pardoned because he was correct, not because he believed himself to be correct. Society might well break down if everyone broke any law he disagreed with. But society would probably be improve if people rejected, ignored, and broke laws they correctly believe are unjust.

D. Regarding punishment: Socrates submitted to Athens because he subscribed to a mistaken theory of government authority: tacit consent theory. If Plato’s account is to be believed, then Socrates might have decided to live had he only taken the first two weeks of a contemporary introduction to political philosophy course. Same with Cicero–he also subscribed to a theory of government authority that has been thoroughly demolished. Thoreau and King allowed themselves to go to jail because they believed that this was useful in promoting their cause, not because they believed the government had any right to put them in jail. They had no duty to the government to submit. (King thought he had a duty to others to submit only because submission was necessary to help his cause.)

Consider Turing again. The government tells Turing he can’t have gay sex. When the government does that, it does something deeply evil and unjust. It then tells Turing he can either be chemically castrated or just agree not to have gay sex anymore. Is Turing above the law? Of course he is. My excrement is above that law. When the government tells Turing he can’t have sex, it has already violated his rights. To punish him further violates his rights. Turing can just say, “When the rest of you pass an unjust law, you have wronged me. When you enforce that law against me, you further wrong me. I should feel free to disobey if I can get away with it.”

See also my old post on why promising to obey orders doesn’t excuse you or enable you to commit injustice.

Update: Check out this article, “Contempt of Cop”.