In Arkansas, at this moment, Aaron Spencer is facing trial for murdering Michael Fosler. The killing happened when Spencer caught Fosler in the act of kidnapping his 13-year-old daughter. Fosler had been indicted months earlier for sexually abusing that same girl.
One natural response to these three sentences is: “What on earth?”
Underneath that question is a presupposition: the law should do things that align in a general way with our conscience—or at least not outrage it. To some, the idea a man facing prison for rescuing his daughter from a sexual predator is certainly outrageous. To others, the notion that a man would effect a violent rescue without calling the police is unconscionable.
In this post, through the lens of the Spencer case, we’ll explore the relationship between “law” and our native sense of right and wrong.
Before we look at what the law is up to in Arkansas, we need to understand the facts. A lot of what happened in this case remains unclear. (That, by the way, is the purpose of a trial: to decide on a version of the facts we treat as “true” for purposes of applying the law). But a few facts appear undisputed, and those undisputed facts are sufficient for our discussion. Here they are:
- In the summer of 2024, Fosler was indicted on 43 counts, which included numerous sexual offenses against Spencer’s 13-year old daughter.
- Fosler was released on a $5,000 bond pending trial, and the court issued a no-contact order for Spencer’s daughter.
- Later in 2024, Spencer and his wife awoke to their dog barking and discovered their daughter was missing.
- Spencer left home in his truck to search for her and spotted her in Fosler’s truck as it drove down the highway.
- Spencer forced Fosler’s truck off the road.
- Spencer and Fosler had an altercation. Spencer shot Fosler.
- Spencer called 911 to report he shot Fosler. Fosler died at the scene.
- In November of 2024, the same prosecutors who had charged Fosler charged Spencer with second-degree murder.
- Prosecutors have argued that Spencer should not have pursued Fosler and should have instead reported the abduction to the police and allowed them to resolve it.
- After being indicted, Spencer announced he was running for Lonoke County Sheriff.
- The judge, without a hearing, granted a prosecutor’s motion to enter a sweeping gag order, preventing anyone from speaking publicly about the case. She also took the unusual step of sealing the record away from public view.
- The Arkansas Supreme Court overruled the gag order, finding it constituted a “plain, manifest, clear, and gross abuse of discretion” that was “in excess of [the judge’s] authority.”
- After being overruled, the judge issued an order functionally forbidding most members of the public and media from attending Spencer’s trial.
- At Spencer’s request, the Arkansas Supreme Court took the extraordinary step of removing the judge from the case and reassigning it to a new judge.
- Spencer has yet to be tried.
Two things stand out. First, there’s no dispute the killing occurred while Spencer was rescuing his daughter in the middle of the night from being kidnapped by a man who had already abused her once. Second, there’s no dispute the judge took extraordinary—and, it turns out, unconstitutional—steps to shield the prosecution from public view.
Why is it outrageous that the law would prosecute a man who fatally shot another?
Why is it offensive to our sensibilities that information about the prosecution would be restricted?
Self-defense is a complicated topic, and the devil is very much in the details. Even acts that appear to be self-defense can ultimately be found to be otherwise depending on subtle details. Answering these questions requires difficult determinations of the precise moment “defense” turns into “aggression,” whether the defendant was still in reasonable fear of death or harm (for themselves or someone else) when they delivered the precise blow or shot that caused a death, whether there was reasonable apprehension of harm, and what alternatives were available.
Many of these facts are yet to be finally decided in Spencer’s case. Answering questions like these is part of what his trial will be about.
But we can look at our question—why does the Spencer case create outrage for so many people?—by taking the undisputed facts and dealing in broad strokes. And the answer to our question lies in a topic we as a society don’t discuss enough.
Jurisprudence—the philosophy of law. Or, put differently, the study of why the law exists and what it actually is.
As any 3L law student will tell you, there are a lot of theories about this. Legal positivism says laws are not moral, just rules established by humans for an orderly society. Legal realism says law doesn’t actually exist—it’s just a series of interactions between people with different levels of authority, following rules as a matter of incentive and social contract. But neither of these theories completely explains the complex system that is American law.
Although legal positivism has played a strong role in America’s legal history, the fundamental structure of our law, and criminal law pertaining to murder especially, is a child of natural law theory. Natural law says the law is a set of human rules that reflect moral principles of divine origin, universally understood by the human conscience.
Under a natural law theory, murder is wrong, no matter what the government says about it. Natural law tells us that it’s not only not wrong, but morally obligatory, for a father to defend his daughter from harm. Natural law disposes us to suspect actions shielded from accountability and inclines us to demand public accountability when our government acts.
The natural “what on earth” response to events in Arkansas reflects two things. First, the personal consciences of many are outraged by what appears to be (the devil is in the details, and complete facts will hopefully come out at trial) a father saving his daughter from a predator. Then, civic consciences are outraged that the law would depart so far from our shared moral sense, and further outraged that these actions would be shielded from public inquiry.
And, flipped one-hundred-eighty degrees, the personal consciences of others are outraged at the idea that a man—any man—would take justice into his own hands, and the related supposition that we, and not the police, are responsible in the first instance for our own defense. Social order is a moral construct after all, and what order exists if each man is a law to himself?
These competing viewpoints are moral more than legal. And they form the heart of the outrage on both sides of the issue.
What makes this interesting is the premise of that outrage, regardless of which direction it runs. Outrage is an expression of the idea the law ought to follow our moral conscience. We assume that when it doesn’t, it is the law, and not us, who should yield.
This same assumption is visible as a thread running through our federal and state constitutions, and many of our oldest statutes.
It is not, however, the assumption that underlies much of modern law.
Many branches of current strife grow from the root of this conflict. Some people—many of them in positions of power—believe there is no essential connection between law and conscience. Most of us, at an intuitive level, believe the opposite. We presume we have a right to judge even the law when it falls short of our moral beliefs.
This conflict shows its face in art, and not just politics. What “right” jurisprudence looks like is at stake in classics like The Count of Monte Cristo and modern works like Son of the Black Sword.
For Aaron Spencer, this conflict is non-theoretical and acute. He will be tried based on the law, as interpreted by a judge (and, possibly, reinterpreted by an appeals court). But will that law and its interpretation reflect moral precepts about family, parental duty, and self-defense, or a “legal positivist” view that a man may not use personal violence if there’s even a possibility the state could have intervened?
Spencer’s upcoming trial will give us the answer—at least in Arkansas, and at least in this case.
More broadly, this conflict can and should inform how we consider those we put in authority at federal, state, and local levels.
When we hear politicians speak, we ought to be asking ourselves: What do they think the law is for?
This, even more than shallow distinctions between left and right, can help us choose leaders consistent with the society we desire.
« previously: The End Times Are Coming next: Book Review: Dune »