Friday, July 15, 2011

Cuomo Supports Bull Connor Over MLK? Thoughts on Law and God

But Peter and the apostles said in reply, "We must obey God rather than men."

—Acts 5:29

The Duke of Norfolk: Oh confound all this. I'm not a scholar, I don't know whether the marriage was lawful or not but dammit, Thomas, look at these names! Why can't you do as I did and come with us, for fellowship!

Sir Thomas More: And when we die, and you are sent to heaven for doing your conscience, and I am sent to hell for not doing mine, will you come with me, for fellowship?

A Man For All Seasons


There is some buzz in the media about Laura Fotusky, the woman who resigned rather than take part in issuing marriage licenses to homosexual couples in New York. Some support her. Others speak contemptuously about her.  Those who dismiss her generally take the point that the law is the law and people who will not follow said law have no business being in government.

The problem is, such a position seems to presuppose a view that whatever the government says, goes.  But is this really a valid position?

The Statement of Cuomo

"The law is the law. When you enforce the laws of the state, you don’t get pick and choose which laws. You don’t get to say, ‘I like this law, I’ll enforce this law. I don’t like this law, I won’t enforce this law.’ You can’t do that. So if you can’t enforce the law, then you shouldn’t be in that position."

—Governor Andrew Cuomo

Reductio ad Absurdum

reductio ad absurdum

n. Philosophy a method of proving the falsity of a premise by showing that its logical consequence is absurd or contradictory.

– origin Latin, lit. ‘reduction to the absurd’.

Soanes, C., & Stevenson, A. (2004). Concise Oxford English dictionary (11th ed.). Oxford: Oxford University Press.

The problem is, we can make a reductio ad absurdum to show the flaw in his position.  "Bull" Connor, Commissioner of Public Safety in Alabama was enforcing the law when he targeted blacks demonstrating for human rights and was infamous for the use of fire hoses and dogs against demonstrators.  If Cuomo is right, then Connor is unjustly condemned by history.  After all, Segregation was the law, and as Cuomo said, "So if you can’t enforce the law, then you shouldn’t be in that position."

We can put this into a Syllogism by taking the statement, "if you can’t [enforce the law], then you shouldn’t [be in that position]."  We can then restate this as a positive:

  1. If you do [Enforce the Law], you should [be in that position] (If [A] then [B])
  2. Bull Connor did [Enforce the Law] ([A])
  3. Therefore Bull Connor should [be in that position] (Therefore [B])




If you find that syllogism repellant (and you should), you can then see that Andrew Cuomo's statement must therefore also be repellant because it actually can be used to justify anything the state wants to do. 

That's how the reductio works.  If [A] then [B].  [B] is offensive or absurd.  Therefore we should reject [A].

The reason Cuomo's statement is dangerous and offensive is the authority of the state is not the judge of what is right and wrong.  Right and wrong is outside the ability of the state to decree.  History is full of regimes who have made it legal to do horrific things, and we do not consider those who carry out such laws to be justified. 

The Nuremberg Defense

Indeed, we know that the "Superior Orders" defense (also known as the Nuremberg Defense) of "I was just following orders," is rejected.  Indeed, Nuremberg Principle #4 states:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

So in this case just because a law is made, it does not excuse the person from making a moral choice in opposition to a law, if it is unjust.

Therefore, before we can accept Cuomo's argument, it requires the establishment of the fact that "Gay Marriage" is in fact a just law which should be obeyed.  Thus the supporters for "Gay Marriage" can't simply say they don't want to force religious views on others.  They are in fact forcing secular sectarian views on others by forcing them to accept "Gay Marriage."

Legal Positivism and Just Laws

An unjust law is no law at all.

—St. Augustine.  On Free Choice Of The Will, Book 1, § 5

The concept of what makes a law binding on us comes down to two possibilities:

  1. Whatever the State decrees is to be obeyed because the state decreed it.
  2. The obedience to a law supposes that the law is just and an unjust law lacks authority.

This is the difference between Legal Positivism and the Christian view of law.  Legal Positivism holds that "The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry." (John Austin).  In other words, whether or not the law be good or bad is irrelevant to the issue of whether it ought to be obeyed. 

One begins to see the dangerous view of Governor Andrew Cuomo.  Law is to be obeyed because government has authority to govern, regardless of whether a law is good or bad.  American History is full of examples of unjust laws which people of conscience felt they had to oppose: the Fugitive Slave Act, Jim Crow laws and the like were to be obeyed and the person who defied such laws on grounds of conscience was a plain and simple lawbreaker – his beliefs that the law was unjust is irrelevant.

Under Legal Positivism, Martin Luther King Jr. (hereafter identified as MLK) was a felon and his civil disobedience could not be justified.

On the other hand, the Christian view of law recognizes human authority as being rooted in the authority of God.  The state exists for the protection of the people, which presupposes justice.  Our rights come from outside the state.  If they come from within the state, then the state can take the rights away.

Under the Christian view of law, MLK was justified in opposing an unjust set of laws, when he pointed out:

Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.

Letter from a Birmingham Jail

This gives the lawmaker like Cuomo a dilemma.  If one must obey any law because it is a law, then MLK is in the wrong.  However, if MLK was right, then Cuomo is wrong.

Thomas Aquinas and Law

In the Summa Theologica (cited by MLK), St. Thomas Aquinas writes:

On the other hand laws may be unjust in two ways: first, by being contrary to human good, through being opposed to the things mentioned above - either in respect of the end, as when an authority imposes on his subjects burdensome laws, conducive, not to the common good, but rather to his own cupidity or vainglory - or in respect of the author, as when a man makes a law that goes beyond the power committed to him - or in respect of the form, as when burdens are imposed unequally on the community, although with a view to the common good. The like are acts of violence rather than laws; because, as Augustine says (De Libero Arbitrio i,5), "a law that is not just, seems to be no law at all." Wherefore such laws do not bind in conscience, except perhaps in order to avoid scandal or disturbance, for which cause a man should even yield his right, according to Matthew 5:40,41: "If a man. . . take away thy coat, let go thy cloak also unto him; and whosoever will force thee one mile, go with him other two."

Secondly, laws may be unjust through being opposed to the Divine good: such are the laws of tyrants inducing to idolatry, or to anything else contrary to the Divine law: and laws of this kind must nowise be observed, because, as stated in Acts 5:29, "we ought to obey God rather than man."

Summa Theologica I-IIa Q. 96 Article 4.

So Is the New York Law Just?

For the Christian, the "Gay Marriage" law is unjust on the following grounds:

  1. It goes beyond the authority of any government to declare that marriage can be between two persons of the same gender.
  2. This law is in opposition to the Divine good.

Because we ought to obey God rather than men, we must call this unjust and cannot support the government in this action.

This is not "Imposing Beliefs"

As citizens of this nation, Christians have the same rights as others to make our voices heard and shape the laws according to what is right (Hat tip to blogger Anthony Layne for making this point so well).  Because we do believe we must obey God rather then men, we cannot "go along" when the state mandates something which God condemns.  Because we believe there is real and knowable truth and good, we must call our nation to be aware of this.

Conclusion: God Gives Us Freedom.  Cuomo's View Makes the State All Powerful

We must oppose all politicians who seek to impose their will on the state, even if they wrongly think it just, if what they seek to impose goes against the natural and divine law.  We may suffer persecution for this.  However, let us be clear that the state does not have the authority to enact such a law and they are unjust if they do persecute us.

Yes, we must obey God rather then men.  However, the state does evil when they force us to make that choice to begin with.  This is why we must rise up and condemn Cuomo's statement as being a dangerous infringement on our right to do as we ought to do.

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