Requiring Citizen to do Evil; M. Pierone

According to [collectivists] "the people" is a living organism, not a "mere mechan ical conglomeration of disparate individ uals." This, of course, is the old, inevi table trick of totalitarian thinking: "the people" is posited as unified and whole in its multiplicity. It is a sphere, a swarm, an anthill, a beehive, a body. And a body should strive for perfection; everything in it should be smooth, sleek, and harmoni ous. Every organ should have its place and its function: the heart and brain are more important than the nails and the hair, and so on. If your eye tempts you, then tear it out and throw it away; cut off sickly members, curb those limbs that will not obey, and fortify your spirit with abstinence and prayer. That is why they should be in power: They are the head of the organism, of the com munity; they know what is good; and they ought to be making the decisions as to who remains part of it and who must be cut off.

Members of society do have different roles; the economists speak convincingly of the benefits of the division of labor. The errors of the collectivists are (1) their pre sumption that they know better than the individuals involved which members of so ciety are less important, and (2) they have the right to eliminate those members. But individuals are ends in themselves, not an imals to be sacrificed on the altar of the collectivist state. 0 REQUIRING CITIZENS TO Do EVIL by Michael Pierone D oes civil disobedience have any place in a lawful society? If so, under what circumstances, and if not, then what is the consequence? Recently the physician-host of a radio program answered a question about using marijuana to treat glaucoma. He told the listener that as a physician it was his responsibility to prescribe effective reme dies even though it may violate the law, and so advised the listener to break the law if MichaelPierone is New Jersey coordinator ofthe Fully Informed Jury Association.

need be, but to preserve her own health. Should he have kept his silence? We used to have slavery in this country, and naturally enough as a consequence, we had the Fugitive Slave Act. The intent of this legislation was to return slaves to their owners; harboring fugitive slaves would not be countenanced. Juries in the northern states routinely refused to convict people who by their own admission were quite. clearly "guilty" of violating the law. Would it have served justice to convict the viola tors?

262 THE FREEMAN • JULY 1993 Henry David Thoreau Today, the right to trial by jury is seri ously compromised because jurors do not understand that they have the same right to disregard the direction of the judge as jurors who disregarded the judge when ruling on the justice of the Fugitive Slave Act. Un fortunately, judges are instructing jurors that they are to judge only the facts and that they must accept the law as the judge charges it to them. We have tens of thousands of laws in this country now, some good, some not so good, some poorly applied to individual circum stances. Is it appropriate that the letter of the law be the rule, or should juries attempt to provide justice, rather than law? A concrete example may be helpful here. As New Jersey coordinator for FIJA, the Fully Informed Jury Association, I have direct experience in civil disobedience. Re cently I mailed letters to county prosecutors in New Jersey asking them their opinion as to the legality of passing out brochures to jurors describing their jury nullification powers. An early response from a prosecu tor in Morris County was that I would be "tampering" with the jury to inform them of this power. What was FIJA's response? We ignored the prosecutor's advice and handed out the pamphlets anyway. No arrests were made, largely due to the fact that the press was present and that we also passed out a copy of the Governor's Proclamation of Jury Rights Day, in which he describes jury nullification powers. But would it have served justice to heed the prosecutor's warning? There is a good reason for jury tampering laws, but here we have a clear instance of misapplication of a good law.

Jury tampering occurs when someone uses coercion or incentives to try to alter ajuror's verdict. What we were doing was informing the juror that he has a responsibility to use his conscience to arrive at his own verdict, rather than allow the judge to force him to rule against his own best judgment. Is it not the judge who is "jury tampering"? In his essay on civil disobedience, Henry David Thoreau stated: Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have suc ceeded, or shall we transgress them at once? Men generally, under such a gov ernment as this, think that they ought to wait until they have persuaded the major ity to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minority? Why does it cry and resist before it is hurt? Why does it not encourage its citizens to be on the alert to point out its faults, and do better than it would have them? Why does it always crucify Christ, and excommuni cate Copernicus and Luther, and pro nounce Washington and Franklin rebels?

When government creates laws that require citizens to do evil-to return fugitive slaves, to refrain from harboring Jews, to place Japanese-Americans in concentration camps, or to report on their neighbors-will not men of good conscience disobey and endure the consequences? Or is the virtue of obeying the law so overwhelming that we must abandon virtue itself? 0 THEFREEMAN IDEASON LIBERTY OUTLAWING COOPERATION by Charles W. Baird B elieve it or not, federal labor law may make it illegal for labor and manage ment to cooperate with each other in a private nonunion workplace. Since less than 12 percent of private sector workers today belong to unions, labor-management coop eration involving 88 percent of America's private workforce may break the law. The Problem Prodded by foreign competition-espe cially from the Japanese, whose system of labor-management relations is based on cooperation rather than confrontation American companies in recent years have set up approximately 30,000 employee par ticipation programs designed to improve communication between workers and man agers, give employees a voice in decision making, boost morale, lower costs, and improve productivity, product quality, and customer satisfaction. Sometimes called "quality circles," "labor-management co operation groups," or "employee involve ment teams," theseemployeeparticipation Charles W. Baird is Professor ofEconomics and Director of the Smith Center for Private Enter prise Studies, California State University, Hay ward. This essay was originally published by the Cato Institute as "Are Quality Circles Illegal?