“Is the Declaration of Independence illegal?”

The title of this post comes from a fun BBC Article (see here) covering an event in Philadelphia held by the Temple American Inn of Court. America has Inns of Court? I know, I was confused too. I’ve heard rumors about the existence of these American ‘Inns of Court’ before but until now I secretly suspected they didn’t actually exist. Of course, the mere fact that they exist does not make them meaningful. At any rate, the event Temple held is a cool idea. I recommend reading the article and watching the video. That said, the answer to the question debated is quite easy to derive. It certainly requires no lengthy pondering to ascertain.

To the extent that writing such a declaration of independence may have been seditious or treasonous, one can say quite confidently it was illegal for the colonists to author it. Of course.

But doesn’t that miss the point by quite a bit? This is, after all, not about colonists’ right to speak out freely but rather their actual ability to declare themselves a separate sovereign. And that is neither illegal nor legal.

Yes, there’s a difference between “not legal” and “illegal.” For an act or omission to be illegal it must contravene law. To murder is illegal because there is law saying I am not allowed to do as such. Its illegality does not stem from the absence of authorization but from the presence of prohibition. On the other hand, for something to be “not legal,” is only to imply that there is not explicit legal authority to support whatever that ‘something’ may be.

Now, I’m not a legal historian but I would wager that there was no common law or act of parliament expressly prohibiting subjects of the crown from claiming themselves a new sovereign. Rather, it’s one of those things that seems to go without saying. Like the barristers argued at the Temple event in Philly, the US’ reaction to the civil war nicely makes the point. It is no more conceivable that the colonists had an ability to declare themselves sovereign than that the Confederacy had an ability to do so a century later. All of this is to say that there is no legal authority that supports such a declaration. No code, no common law, no statute…nothing can be cited to support the position that separation is a legal action.

So was it illegal to declare sovereignty then? No. Is it now? No. Does that mean it was valid to do so? No. It seems a difficult question for political philosophers but an entirely unproblematic one for the law.

All of that being said, I recognize the debate wasn’t meant to be taken seriously. Nor do I want to discourage the effort – I very much like the idea of getting American lawyers and British barristers together to debate legal questions. I’d merely submit that next time around, Temple Inn should come up with a more debatable question.

-Zachary Cloud

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