For those who haven’t seen the story yet (as I’m sure this will gain some steam), Texas judge Lanny Moriarty sentenced a 17 year old student to jail for a night because she missed too much school. Aside from the fact that apparently in Texas it’s legal to put a student in jail for not going to school, the 17 year old is a straight A student who is dual enrolled in college courses. Why is she missing so much school? Perhaps because she works two jobs in order to support her older brother and younger sister since her parents split. Thus, somedays she’s just too tired to go to school.
The entire reasoning behind Moriarty’s sentencing is, “Well, if I let her go I’ll have to let everyone else go.” The very few defenders of his decision typically say “the law is the law.” Both mentalities have absolutely no place in the American courtroom, yet both are so common that few question them. The idea of precedence (“if I let her go then everyone gets to go”) and legal positivism (“the law is the law”) are symptomatic of an authoritarian state, not of a judicial system focused on justice.
Now, aside from the allegations that Moriarty is in the pockets of corporations (which violates the code of ethics; let us pray he is disbarred), Moriarty is unfit to serve in his capacity as judge because he doesn’t understand the danger of ruling via precedence (or to establish precedence). Precedence doesn’t allow for unjust decisions to be overturned. While it’s important to have legal consistency, all decisions must still be evaluated as just or unjust. If previous judges have ruled that x is wrong, the current judge must still look at the current situation and determine whether or not x really is wrong. While he can refer back to the previous decisions, he must look at the current context to determine if those decisions apply to this circumstance or if those decisions were right to begin with (think of the legal precedence that secured segregation in the early 20th century).
With the above in mind, in this circumstance he could say that due to the circumstances of the girl the law wouldn’t apply. The intent of the law (or “spirit of the law”) was to prevent students from skipping school for petty reasons. The intent of the law was not to jail students because they’re worn out from holding their family together while obtaining top marks. Thus, while the law would apply to most other truants, it simply would not apply in this case. This doesn’t set any precedence other than “If you’re missing school because you’re working to support your family, we’re not going to put you in jail for being an incredible human being.”
But what of the legal positivist who says, “but the law is the law”? Legal positivism is a result of nominalism, which is the denial of universals and the focusing on particulars. If there are no universals then the society dictates what is and is not part of the law. Once the law is established the law is to be followed, no matter what. Now some legal positivists might say we can still disobey the law if we think the government is illegitimate or the law unjust, but this caveat undermines the entire thing; if we can determine justice without appealing to the established law or the government, then the law is not justified in and of itself (i.e. the law is not always the law, that is to say, the law is not always just and therefore must sometimes be broken).
If the “law is the law,” then Martin Luther King Jr., Ghandi, Nelson Mandela, and other great champions of civil rights are the absolute worst human beings on earth. They violated the social norms. They went against the legal consensus. We ought to despise them for saying that society had it wrong. Of course, hardly anyone would make these arguments. Almost everyone would rightfully declare these people champions of justice. But the justice they pointed to had to exist outside of their own experience, that is, it had to be a universal (absolute) and not a particular (subjective).
If I am correct on the above, then in this case the girl should not have been punished. The “law is the law” doesn’t work; the law was unjustly applied and the law in and of itself is unjust. That it would allow a judge to punish high-performing students who are contributing to society means the law ought to be broken, challenged, and cast aside. No judge should enforce said law because the law is wrong; if Congress passed a law saying that all Muslims should be put in prison, then regular citizens and agents of the government would have the moral obligation to disobey the law. While a law geared towards jailing truants isn’t nearly as drastic as the example provided, it proves the point that some laws are unjust.
On a second point, the idea that we would jail students for choosing not to attend school is quite absurd. The purpose of the government is to (1) recognize the innate freedoms of all its citizens, (2) protect any outside threats from encroaching on those freedoms, (3) protect any domestic threats from encroaching on those freedoms, and (4) provide a society that is stable enough for those freedoms to flourish. Forcing students to attend school or face jail doesn’t fulfill any of those four categories; if anything, it violates both 1 and 3. By failing the attend school the student harms no one except himself; from a legal perspective (not a moral perspective), so long as his actions don’t harm anyone else, what business is it of the government’s (kind of like seatbelt laws)? Thus, not only was this law misapplied in this case, the law itself is flawed and unjust and should never be applied even in cases where the student misses school simply because he doesn’t want to go.
Ultimately, even within the parameters of the law, she should not be punished for what she did. There’s no reason she should have anything put on her record; what she has accomplished is nothing short of amazing and if she is keeping up top marks in her classes while missing school, she deserves an award, not jail time. However, so long as we teach this absurd philosophy of legal positivism in our law schools, so long as we adopt nominalism, we’re going to end up with more and more totalitarian laws. That’s just how it works; when you seek to deny reality you have to create a false reality, and the simulacrum will always be worse than the real.