Certain limits ought to exist, we think, on the power of a government—on the power of any government, from the most distant and libertarian to the most watchful and intrusive, from the weak to the strong, from the incompetent to the skillful, from the democratic to the monarchical. Moral limits, for instance, deriving from the human nature of its subjects. Practical limits, for that matter, emerging mainly from the impossibility of watching everyone all the time.
Similarly, there are, we suppose, certain powers that every government possesses, by the sheer fact of its being a government in place—the power to pass and enforce limited laws, for example. Consider a government so tyrannous, so violating of the moral limits on state power, that it has become illegitimate, a valid target for revolution and disobedience. Our intuition, I suggest, is that even such a government has not invalidated its laws against, say, fraud or rape. We may suspect that the judicial system has been so corrupted that we cannot trust it to enforce such laws fairly, but the positive laws themselves are not thereby rendered illegitimate regulations.
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