Equality of Bad Law

Dustin Hawkins
Issue XXIV - August 11, 2004
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Some time ago in a comments thread for the article, "Something Old, Something New," [on SoloHQ.com] a debate went on the stirs me still. While the topic was gay marriage, it was the following doctrine set forth that disturbed me, and should disturb Objectivists.

The defining elements of this dangerous doctrine are made, surprisingly, by Joseph Rowlands. Rowlands states that even if a law is “a bad thing, that doesn't necessarily mean that government discrimination is a good thing.” And later adds, “even if marriage really is completely without merit… it would be a hollow victory if equality before the law was dropped.  … The principle... is equality before the law.  Period.  It's not equality before just good laws.”

The seemingly basic formula to this equation is: laws, even ones that exist without merit, should not be discriminatory and thus action should be taken to ensure such. This doctrine as applied to gay marriage is relatively harmless. But when I attempted to apply this same doctrine to more pressing matters, I was branded as being “out there.” If one holds that law, whether rightly or wrongly enacted, should be enforced and expanded to satisfy the requirements of “equal rights under the law” then my counter-argument was and is fully valid.

To maintain this doctrine when perceived as harmless, but then reject it when it is proven disastrous is to act subjectively. In one instance, Rowlands states that even laws without merit should be enforced indiscriminately. With that he concludes that marriage (whether right or wrong as a law) should be expanded to include gay marriage. Harmless. I switched the US policy of marriage with the German policy of rounding up and massacring Jews. Not so harmless. In order to objectively maintain an argument that law should be expanded to ensure non-discrimination then, objectively, one would have to support, policy-wise, that the round up and execution should be expanded to reach all citizens. (You can plug in hundreds of laws “even without merit” that currently violate the “equal rights under the law” provision and see the effects of such a dangerous principle. Try it with some discriminatory healthcare laws, education laws, welfare laws, etc.)

At this point, Rowlands should have conceded the argument. Instead, he responded thusly: First, he merely laughed off my comparison, and tossed in this as his reasoning: “The idea is, if the government has to treat everyone the same, there won't be unjust laws.  Or less of them, anyway.  If a bad law applies to everyone, it will be resisted by all.  And it'll be less likely to be created.”

While I am sure that would be the case, he ignores the reality of situations. In order for this argument to work, policy-makers would have to believe in that same non-discriminatory practice. As is proven by all governments, this is not the case. Which led me to my point. Even if the Nazi’s refused to “equally” distribute their slaughtering (whether it is viewed “with or without merit”), Rowlands would still have to be the voice demanding the equality of such policy, even if he were the only voice.

But he refuses to acknowledge this. Even if it were not possible that the policy-makers would change such laws, he would philosophically still have to support its enhancement based on his stance of promoting the enhancement of present discriminatory laws to non-discriminatory ones, regardless of merit.

The second part of his argument distorted my position and fabricated one I never made, most likely in an attempt to avoid admitting he would have had to support the expansion of the Holocaust in order to objectively maintain his doctrine. My position was and is simple. And as is required by reality, I do not contradict myself (as some positions have). I held that the expansion and full inclusion of either bad or inappropriate law should not be sought. Even in the face of discrimination before the law. It should be our goal to reduce and eliminate, not promote, such laws.

That was the basis of my argument, which notably does not say that as a result of my non-expansionist bad law position that I would and must automatically support any solution that, no matter how absurd, would reduce such laws. Unfortunately, this was how my position was unjustly distorted to hide the fact that I am right. Nowhere did I claim that I would support any measure to reduce bad law. As I did state, there are appropriate ways to reduce such law, and it may take as many years to reduce these laws as it took to create them.

My position is not contradictory, and I will gladly accept challenges of its validity. I would hope that all Objectivists would do the same with their own positions, doctrines, and beliefs. And I would hope Joseph Rowlands would revisit his in this situation.

“There are two sides to every issue. One side is right and the other side is wrong.” One of us is right.

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