Unjust Officials

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Unjust Officials

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"Very Well, Alone"

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"Very Well, Alone"

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How Modern Morality Leads to Tyranny (Part 2 of 2)

Men who begin to fight the Church for the sake of freedom and humanity end by flinging away freedom and humanity if only they may fight the Church.

—GK Chesterton

Introduction

Before considering the last three steps, we should briefly discuss some of the principles of the thinking of the modern morality, that will explain the unjust laws that come from the proponents of modern morality.

It tends to reject the ideas of the existence of truth as independent of circumstances.  Everything is relative to times and circumstances.  It also tends to hold a view that everything progresses for the better.  Because things are generally better in a material sense, it means things are better in a moral sense.  The "oppressive past" has been replaced with a "freer" present and must continue towards an even more "free" future.

Such a view holds that even if one disagrees with certain behaviors ("personally opposed but…"), it should still be permitted "if it doesn't harm anyone."

The result of this is it tends to reject any restrictions except the "harm towards others."  The proponents will most likely object to comparisons to totalitarian policies on these grounds, because the totalitarian regimes did harm others.  The problem is, these proponents don't always recognize that harm is done to others.  They tend to think of crude Nazi tactics and think that because other "inconveniences" are not at that level, it isn't harm.

Moreover, there is also a tendency to think that certain views are "oppressive" and people who think in such a way should not be protected when it comes to those views.

The problem is, there is a contradiction in all of these views.  If one should tolerate other views, then it follows that it should be applied to views they disagree with as well as views they agree with.  The person who believes there are moral absolutes ought to be tolerated without harassment.  Instead, because their views are called "oppressive" it is acceptable to deny protection under the law.  This is the contradiction that creates tyranny in a free society.

With this in mind, let us consider the final three steps.

The Fourth Step: Passing Laws With the Belief They Harm Nobody

Attempted murder? It's not like he killed someone. This is a clear violation of my client's civil rights.

—Slimy Lawyer, RoboCop (1987)

Once people are elected or appointed to political office, they take their belief in only opposing "harmful" things in legislation.  If they see no harm in legislation, then they tend to support it.  This is how we can see lawmakers support the HHS contraception mandate or legalized abortion.  Because the reduction of sex to pleasure is accepted as a given, the only harm they can see is the issue of unexpected pregnancy.  The result is the creation of laws which makes access to contraception and abortion easier.  It is only the challenges to this assumption that is viewed as harmful.

Under the same reduction of sex to pleasure, such politicians can see no difference between traditional marriage between a man and a woman and a "homosexual marriage" between two people of the same gender.  So laws supporting this so-called "gay marriage" are seen as good, and opposition seen as harmful.

The result of all this is to create a set of laws that claims to champion tolerance, but actually refuses to consider the input of those who think differently from the lawmaker.

The Fifth Step: Denying the Validity of Challenges to the Law

"Are you lost daddy?" I asked tenderly.
"Shut up," he explained.

—Ring Lardner, The Young Immigrants (1920).

One of the more ironic arguments made by proponents of the modern morality is the claim that those who believe in moral absolutes are "forcing their beliefs on others."  It's ironic because these proponents are in fact the ones imposing their moral beliefs.  You may notice this with their mantras.  "Reproductive Freedom" for example.  Those who believe in moral absolutes are not supposed to push their beliefs on others, but the concept of "Reproductive Freedom" is invoked as if it were a moral absolute.

Thus the HHS contraception mandate is forced on people who believe it is wrong to give any support (moral or financial) to things they find immoral.  Because the concept of "Reproductive Freedom" is considered unquestionable, no challenge will be heard.

Like Step 2, the lawmakers try to explain away or deny the harm their law may do.  First they simply deny the validity of charges their laws do cause harm.  The unborn is denied human rights (Roe v. Wade was infamous here, arguing that since the Constitution referred to born persons, it meant unborn persons had no rights – an argument from silence.)  The reduction of marriage to a legally sanctioned sexual relationship is denied as a cause of damaging the traditional family as a source of the stability of society.  Studies that challenge this are rejected as "biased."

At the same time, however, it is argued that the harm they've denied can be justified for the greater good of the moral absolutes they deny.  Thus, even if the unborn is a person, the mother's "reproductive freedom" takes priority.  Whether or not "gay marriage" disrupts society, denying persons with homosexual tendencies the "right to marry" is making them second class citizens.

The problem is, these people claim that whatever does no harm to others should be permitted, but they make themselves both the prosecutor and judge as to what causes harm to others and whether those who are harmed actually matter.  Since this eliminates the right  to "petition the Government for a redress of grievances" (First Amendment), we can see this mindset goes well on the way to causing harm and becoming a tyranny.

The Sixth Step: Restricting the Rights of the Challenger

"They [The Nicaraguan newspaper La Prensa] accused us of suppressing freedom of expression. This was a lie and we could not let them publish it."

PJ O'Rourke (quoting Sandinista official), Holidays in Hell

While in the Third Step, the proponent of the modern morality gets offended with those who challenge them, in the sixth step, the politician has the power to do something about it.  Because he or she believes that the challenger is guided by "harmful" motives (under the ad hominem attacks of "Homophobic" or "war on women" etc.) the politician can make laws that reduce the freedom of the challengers to speak out. 

Consider the Catholic Church speaking out on moral issues being accused of being partisan and being under threats to have tax exempt status revoked.  The Catholic Church has remained consistent on moral issues long before there was a United States of America, let alone a Democratic or Republican Party.

For example, in 1679, the Church condemned these propositions:

34. It is permitted to bring about an abortion before the animation of the foetus, lest the girl found pregnant be killed or defamed.

35. It seems probable that every foetus (as long as it is in the womb) lacks a rational soul and begins to have the same at the time that it is born; and consequently it will have to be said that no homicide is committed in any abortion.

—Various Errors on Moral Subjects (II) [Condemned in a decree of the Holy Office, March 4, 1679]

From the year 1679.  That's not a typo.  Over 333 years ago, the Catholic Church condemned views being used today to justify abortion on the grounds that the unborn is not alive.

Moreover, in 1965 (8 years before the infamous Roe v. Wade), the Catholic Church condemned abortion in the Vatican II document Gaudium et spes:

For God, the Lord of life, has conferred on men the surpassing ministry of safeguarding life in a manner which is worthy of man. Therefore from the moment of its conception life must be guarded with the greatest care while abortion and infanticide are unspeakable crimes. (#51)

To argue that the Catholic Church is behaving in a political manner in speaking against the same sins they condemned before such issues were political indicates a really dangerous situation: That a government may decide what sort of speech is politically motivated or not politically motivated and may coerce the Church from speaking on subjects it deems "political."

Under such conditions, the Church cannot be said to have freedom of religion if her teaching of all people can be labeled "hate speech" or "politically motivated" or if her beliefs may be set aside as "unimportant" when it goes against government laws.

But the Constitution explicitly states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (First Amendment.  Emphasis added).

So we can see that laws made which ignore the First Amendment are laws which support tyranny against the beliefs that the nation were founded on, that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights" (Declaration of Independence).

The Founding Fathers broke away from England because of these violations of unalienable rights, but now the lawmakers and courts can ignore these rights in favor of their own ideology.

Conclusion

Our progress in degeneracy appears to me to be pretty rapid. As a nation we began by declaring that "all men are created equal." When the Know-Nothings get control, it will read "all men are created equal, except Negroes and foreigners and Catholics." When it comes to this, I shall prefer emigrating to some country where they make no pretense of loving liberty — to Russia, for instance, where despotism can be taken pure, and without the base alloy hypocrisy.

—Abraham Lincoln, Response to a Pro-Slavery Friend

Lincoln was prophetic here.  In the name of freedom, we are seeing the denial of basic freedoms to those who believe in moral absolutes and the obligation to live rightly.  Our Church can be coerced.  People who live in accordance with her teachings can be sued for refusing to provide services they feel they would be doing evil to provide.

To defend ourselves against this injustice, we have to ask people of good will to consider the harm that is done when people with this mindset get elected.

Considering the belief that society inevitably improves over time, unless people with an opposing view are elected, it is something that invites injustice in the name of this progress.  The views which threaten what is seen as progress must be stopped by any means necessary.

The problem with this assumption is not all perceived progress is progress.  People of this generation might be surprised, but there was a time when democratic processes were considered outdated relics and it was fascism which was the way to progress.  As we have seen in history, this view of fascism was premature and did not reflect reality.  Indeed, the practitioners of fascism had few brakes to prevent bad ideas that were seen as beneficial by the fascists.

The view today of no moral absolutes is the same.  If there are no moral absolutes, and the progress of society is seen as advances and declines solely on whether it moves towards or against a certain ideology, then there are very few restrictions against those politicians who feel threatened by challenges to their "defense of progress."

It is no hyperbole to say that this mindset, turned into law by politicians are heading into tyranny as the Founding Fathers understood it:

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. (Declaration of Independence)

The question is what we are to do about it?

It may sound partisan, but quite simply, we need to consider this sort of mindset as one which disqualifies a person for government office.  A politician who believes that there are no moral absolutes and believes it is his views that must be followed to bring progress to the nation is more likely to push through laws they see as right without considering other perspectives.

A Politician who will not see harm done or seeks to explain harm away cannot be trusted to hear the grievances of those wronged and give redress.  The Politician who believes their opponents are obstacles is more likely to restrict people who disagree than people who believe there are moral absolutes which forbid them from doing wrong in the name of a cause.

In short, we need to elect men and women of character, who recognize that the government has no authority to mandate things beyond them.  When Obama was asked, "At what point does a baby get human rights in your view" (8/18/08), he replied:

"Well, I think that you're looking at it from a theological perspective or a scientific perspective. Answering that question with specificity is above my pay grade. But let me just speak more generally about the issue of abortion, because this is something that obviously the country wrestles with. "

That kind of answer should be a disqualification to the voter of good will.  A politician who cannot answer the question on when a baby has human rights – and prove the truth of his answer should not be making a decision that abortion should be permitted.  We need to elect and appoint men and women who know they are limited and prone to evil and must answer to a morality above and beyond them. 

How Modern Morality Leads to Tyranny (Part 2 of 2)

Men who begin to fight the Church for the sake of freedom and humanity end by flinging away freedom and humanity if only they may fight the Church.

—GK Chesterton

Introduction

Before considering the last three steps, we should briefly discuss some of the principles of the thinking of the modern morality, that will explain the unjust laws that come from the proponents of modern morality.

It tends to reject the ideas of the existence of truth as independent of circumstances.  Everything is relative to times and circumstances.  It also tends to hold a view that everything progresses for the better.  Because things are generally better in a material sense, it means things are better in a moral sense.  The "oppressive past" has been replaced with a "freer" present and must continue towards an even more "free" future.

Such a view holds that even if one disagrees with certain behaviors ("personally opposed but…"), it should still be permitted "if it doesn't harm anyone."

The result of this is it tends to reject any restrictions except the "harm towards others."  The proponents will most likely object to comparisons to totalitarian policies on these grounds, because the totalitarian regimes did harm others.  The problem is, these proponents don't always recognize that harm is done to others.  They tend to think of crude Nazi tactics and think that because other "inconveniences" are not at that level, it isn't harm.

Moreover, there is also a tendency to think that certain views are "oppressive" and people who think in such a way should not be protected when it comes to those views.

The problem is, there is a contradiction in all of these views.  If one should tolerate other views, then it follows that it should be applied to views they disagree with as well as views they agree with.  The person who believes there are moral absolutes ought to be tolerated without harassment.  Instead, because their views are called "oppressive" it is acceptable to deny protection under the law.  This is the contradiction that creates tyranny in a free society.

With this in mind, let us consider the final three steps.

The Fourth Step: Passing Laws With the Belief They Harm Nobody

Attempted murder? It's not like he killed someone. This is a clear violation of my client's civil rights.

—Slimy Lawyer, RoboCop (1987)

Once people are elected or appointed to political office, they take their belief in only opposing "harmful" things in legislation.  If they see no harm in legislation, then they tend to support it.  This is how we can see lawmakers support the HHS contraception mandate or legalized abortion.  Because the reduction of sex to pleasure is accepted as a given, the only harm they can see is the issue of unexpected pregnancy.  The result is the creation of laws which makes access to contraception and abortion easier.  It is only the challenges to this assumption that is viewed as harmful.

Under the same reduction of sex to pleasure, such politicians can see no difference between traditional marriage between a man and a woman and a "homosexual marriage" between two people of the same gender.  So laws supporting this so-called "gay marriage" are seen as good, and opposition seen as harmful.

The result of all this is to create a set of laws that claims to champion tolerance, but actually refuses to consider the input of those who think differently from the lawmaker.

The Fifth Step: Denying the Validity of Challenges to the Law

"Are you lost daddy?" I asked tenderly.
"Shut up," he explained.

—Ring Lardner, The Young Immigrants (1920).

One of the more ironic arguments made by proponents of the modern morality is the claim that those who believe in moral absolutes are "forcing their beliefs on others."  It's ironic because these proponents are in fact the ones imposing their moral beliefs.  You may notice this with their mantras.  "Reproductive Freedom" for example.  Those who believe in moral absolutes are not supposed to push their beliefs on others, but the concept of "Reproductive Freedom" is invoked as if it were a moral absolute.

Thus the HHS contraception mandate is forced on people who believe it is wrong to give any support (moral or financial) to things they find immoral.  Because the concept of "Reproductive Freedom" is considered unquestionable, no challenge will be heard.

Like Step 2, the lawmakers try to explain away or deny the harm their law may do.  First they simply deny the validity of charges their laws do cause harm.  The unborn is denied human rights (Roe v. Wade was infamous here, arguing that since the Constitution referred to born persons, it meant unborn persons had no rights – an argument from silence.)  The reduction of marriage to a legally sanctioned sexual relationship is denied as a cause of damaging the traditional family as a source of the stability of society.  Studies that challenge this are rejected as "biased."

At the same time, however, it is argued that the harm they've denied can be justified for the greater good of the moral absolutes they deny.  Thus, even if the unborn is a person, the mother's "reproductive freedom" takes priority.  Whether or not "gay marriage" disrupts society, denying persons with homosexual tendencies the "right to marry" is making them second class citizens.

The problem is, these people claim that whatever does no harm to others should be permitted, but they make themselves both the prosecutor and judge as to what causes harm to others and whether those who are harmed actually matter.  Since this eliminates the right  to "petition the Government for a redress of grievances" (First Amendment), we can see this mindset goes well on the way to causing harm and becoming a tyranny.

The Sixth Step: Restricting the Rights of the Challenger

"They [The Nicaraguan newspaper La Prensa] accused us of suppressing freedom of expression. This was a lie and we could not let them publish it."

PJ O'Rourke (quoting Sandinista official), Holidays in Hell

While in the Third Step, the proponent of the modern morality gets offended with those who challenge them, in the sixth step, the politician has the power to do something about it.  Because he or she believes that the challenger is guided by "harmful" motives (under the ad hominem attacks of "Homophobic" or "war on women" etc.) the politician can make laws that reduce the freedom of the challengers to speak out. 

Consider the Catholic Church speaking out on moral issues being accused of being partisan and being under threats to have tax exempt status revoked.  The Catholic Church has remained consistent on moral issues long before there was a United States of America, let alone a Democratic or Republican Party.

For example, in 1679, the Church condemned these propositions:

34. It is permitted to bring about an abortion before the animation of the foetus, lest the girl found pregnant be killed or defamed.

35. It seems probable that every foetus (as long as it is in the womb) lacks a rational soul and begins to have the same at the time that it is born; and consequently it will have to be said that no homicide is committed in any abortion.

—Various Errors on Moral Subjects (II) [Condemned in a decree of the Holy Office, March 4, 1679]

From the year 1679.  That's not a typo.  Over 333 years ago, the Catholic Church condemned views being used today to justify abortion on the grounds that the unborn is not alive.

Moreover, in 1965 (8 years before the infamous Roe v. Wade), the Catholic Church condemned abortion in the Vatican II document Gaudium et spes:

For God, the Lord of life, has conferred on men the surpassing ministry of safeguarding life in a manner which is worthy of man. Therefore from the moment of its conception life must be guarded with the greatest care while abortion and infanticide are unspeakable crimes. (#51)

To argue that the Catholic Church is behaving in a political manner in speaking against the same sins they condemned before such issues were political indicates a really dangerous situation: That a government may decide what sort of speech is politically motivated or not politically motivated and may coerce the Church from speaking on subjects it deems "political."

Under such conditions, the Church cannot be said to have freedom of religion if her teaching of all people can be labeled "hate speech" or "politically motivated" or if her beliefs may be set aside as "unimportant" when it goes against government laws.

But the Constitution explicitly states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (First Amendment.  Emphasis added).

So we can see that laws made which ignore the First Amendment are laws which support tyranny against the beliefs that the nation were founded on, that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights" (Declaration of Independence).

The Founding Fathers broke away from England because of these violations of unalienable rights, but now the lawmakers and courts can ignore these rights in favor of their own ideology.

Conclusion

Our progress in degeneracy appears to me to be pretty rapid. As a nation we began by declaring that "all men are created equal." When the Know-Nothings get control, it will read "all men are created equal, except Negroes and foreigners and Catholics." When it comes to this, I shall prefer emigrating to some country where they make no pretense of loving liberty — to Russia, for instance, where despotism can be taken pure, and without the base alloy hypocrisy.

—Abraham Lincoln, Response to a Pro-Slavery Friend

Lincoln was prophetic here.  In the name of freedom, we are seeing the denial of basic freedoms to those who believe in moral absolutes and the obligation to live rightly.  Our Church can be coerced.  People who live in accordance with her teachings can be sued for refusing to provide services they feel they would be doing evil to provide.

To defend ourselves against this injustice, we have to ask people of good will to consider the harm that is done when people with this mindset get elected.

Considering the belief that society inevitably improves over time, unless people with an opposing view are elected, it is something that invites injustice in the name of this progress.  The views which threaten what is seen as progress must be stopped by any means necessary.

The problem with this assumption is not all perceived progress is progress.  People of this generation might be surprised, but there was a time when democratic processes were considered outdated relics and it was fascism which was the way to progress.  As we have seen in history, this view of fascism was premature and did not reflect reality.  Indeed, the practitioners of fascism had few brakes to prevent bad ideas that were seen as beneficial by the fascists.

The view today of no moral absolutes is the same.  If there are no moral absolutes, and the progress of society is seen as advances and declines solely on whether it moves towards or against a certain ideology, then there are very few restrictions against those politicians who feel threatened by challenges to their "defense of progress."

It is no hyperbole to say that this mindset, turned into law by politicians are heading into tyranny as the Founding Fathers understood it:

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. (Declaration of Independence)

The question is what we are to do about it?

It may sound partisan, but quite simply, we need to consider this sort of mindset as one which disqualifies a person for government office.  A politician who believes that there are no moral absolutes and believes it is his views that must be followed to bring progress to the nation is more likely to push through laws they see as right without considering other perspectives.

A Politician who will not see harm done or seeks to explain harm away cannot be trusted to hear the grievances of those wronged and give redress.  The Politician who believes their opponents are obstacles is more likely to restrict people who disagree than people who believe there are moral absolutes which forbid them from doing wrong in the name of a cause.

In short, we need to elect men and women of character, who recognize that the government has no authority to mandate things beyond them.  When Obama was asked, "At what point does a baby get human rights in your view" (8/18/08), he replied:

"Well, I think that you're looking at it from a theological perspective or a scientific perspective. Answering that question with specificity is above my pay grade. But let me just speak more generally about the issue of abortion, because this is something that obviously the country wrestles with. "

That kind of answer should be a disqualification to the voter of good will.  A politician who cannot answer the question on when a baby has human rights – and prove the truth of his answer should not be making a decision that abortion should be permitted.  We need to elect and appoint men and women who know they are limited and prone to evil and must answer to a morality above and beyond them. 

I Told You So…

"As for me and my household, we will serve the LORD." (Joshua 24:15)

Back in June of 2011, I wrote a post entitled "The Sooner We Realize America Is No Longer Free, The Sooner We Can Take Action."  Today I see in the news that HHS Secretary Sebelius has gone on to show that the Obama administration is without question hostile to the concept of religious freedom in America.

The announcement essentially states that religious groups are obligated to provide contraceptive coverage (including abortifacient contraceptives)  to employees, even if the religious groups believe contraception and abortifacient drugs are intrinsically evil and may never be supported.

Instead, religious groups are given until August 2013 to comply with this requirement.

As Archbishop Dolan put it:

“In effect, the president is saying we have a year to figure out how to violate our consciences,”

and:

“To force American citizens to choose between violating their consciences and forgoing their healthcare is literally unconscionable.It is as much an attack on access to health care as on religious freedom. Historically this represents a challenge and a compromise of our religious liberty."

Since such an obligation forces religious groups to choose between serving God and obeying an unjust law, we are forced to become criminals because of the state.

Unfortunately, if this edict is not overturned, we will have to oppose the government of the United States by refusing to obey.  No government has the authority to compel a person to participate with evil.  If the United States takes this road, this nation will have joined the ranks of totalitarian states who use force and fear to compel people to violate what they believe God requires them to do.

That an administration should so flagrantly ignore the freedom of religion without an immediate outcry and call for the firing of Sebelius is chilling.  No it doesn't mean we're going to see "Goose stepping Nazis marching in Washington."  I doubt we'll see gulags or other concentration camps in America.  But it does mean that we have gone from a nation that says "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" to a government saying we have one year to turn our backs on God and obey the state.

I think it should be pretty clear that at this time the Obama administration is the greater of the evils when it comes to the elections, and I pray he is defeated.

Otherwise, I truly fear what our nation will become.

I Told You So…

"As for me and my household, we will serve the LORD." (Joshua 24:15)

Back in June of 2011, I wrote a post entitled "The Sooner We Realize America Is No Longer Free, The Sooner We Can Take Action."  Today I see in the news that HHS Secretary Sebelius has gone on to show that the Obama administration is without question hostile to the concept of religious freedom in America.

The announcement essentially states that religious groups are obligated to provide contraceptive coverage (including abortifacient contraceptives)  to employees, even if the religious groups believe contraception and abortifacient drugs are intrinsically evil and may never be supported.

Instead, religious groups are given until August 2013 to comply with this requirement.

As Archbishop Dolan put it:

“In effect, the president is saying we have a year to figure out how to violate our consciences,”

and:

“To force American citizens to choose between violating their consciences and forgoing their healthcare is literally unconscionable.It is as much an attack on access to health care as on religious freedom. Historically this represents a challenge and a compromise of our religious liberty."

Since such an obligation forces religious groups to choose between serving God and obeying an unjust law, we are forced to become criminals because of the state.

Unfortunately, if this edict is not overturned, we will have to oppose the government of the United States by refusing to obey.  No government has the authority to compel a person to participate with evil.  If the United States takes this road, this nation will have joined the ranks of totalitarian states who use force and fear to compel people to violate what they believe God requires them to do.

That an administration should so flagrantly ignore the freedom of religion without an immediate outcry and call for the firing of Sebelius is chilling.  No it doesn't mean we're going to see "Goose stepping Nazis marching in Washington."  I doubt we'll see gulags or other concentration camps in America.  But it does mean that we have gone from a nation that says "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" to a government saying we have one year to turn our backs on God and obey the state.

I think it should be pretty clear that at this time the Obama administration is the greater of the evils when it comes to the elections, and I pray he is defeated.

Otherwise, I truly fear what our nation will become.

The Sooner We Realize America Is No Longer Free, The Sooner We Can Take Action

Read more »

The Sooner We Realize America Is No Longer Free, The Sooner We Can Take Action

Read more »

Morality Immaterial to Law? Thoughts on Legal Positivism

Introduction

Generally there are two approaches to law and the authority it holds:

1.   Law supposes the existence of that which is just and morally right, and depends on this to bind.

2.   Law is based on the power of the state to decree, and those who are subject are bound to obey.

With recent debates on abortion, on the nomination of Kagan to the Supreme Court and other issues of Law, I've noticed that there has been a number of comments (whether knowingly or not) which reflect the position known as Legal Positivism.  Certain laws are considered as being obligatory to obey whether or not one would argue that they are just or not.

What is Legal Positivism?

This position, attributed to John Austin (1790-1859), was described as:

“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.”

In other words, whether a law is or is not a law is entirely a separate question from whether a law is good or bad.  The only source of law is "positive law" which is simply "man made laws" and denies the concept of Natural Law.

The Stanford Encyclopedia of Philosophy describes the premises of this system as:

According to Bentham and Austin, law is a phenomenon of large societies with a sovereign: a determinate person or group who have supreme and absolute de facto power -- they are obeyed by all or most others but do not themselves similarly obey anyone else. The laws in that society are a subset of the sovereign's commands: general orders that apply to classes of actions and people and that are backed up by threat of force or “sanction.”

It is a dangerous belief.  If you separate law from the legitimacy of said law, you can, in effect, justify anything: Sharia, Nuremburg Racial Laws, Slavery and so on.  Obedience to the law becomes required, because government is the authority which determines what we can and cannot do, and opposing a law on the grounds it is unjust becomes irrelevant.  "Abortion is to be permitted because it is legal" is one of these types of allegations.  Because the Supreme Court decreed that abortion is a right, it is considered immaterial whether or not it should be a law.

Of course we don’t have to invoke the Nazis.  We can look at what we do in America.  For how many years did the government refuse to change laws on lynching or slavery or segregation?

Stare decisis: What’s mine is mine.  What’s yours is up for grabs

We already have the legal concept of Stare decisis (Lat. "to stand by that which is decided." The principle that precedent decisions are to be followed by the courts).  The problem is the assumption is based on the assumption that the prior interpretation of the law by the court is valid.  See Planned Parenthood v. Casey as an example of this.  It assumes Roe v. Wade was a valid decision, and therefore must be followed. 

Such reasoning begs the question that Roe v. Wade was right (which is very much disputed in America).  Before arguing that because it was decreed a right we cannot challenge it (which is often the appeal of the supporters of abortion rights), we should remember the Dred Scott ruling and Plessy vs. Ferguson were also assumed right and later overturned.  Essentially it showed that merely because something was accepted as a law, does not make it binding on these grounds, and that the courts can make mistakes.

However, under Legal Positivism, If it wasn't a valid or wise decision, then it is too bad.  It's a law and must be obeyed.

What Legal Positivism Ignores (and Martin Luther King Jr. was aware of)

The problem is, when one traces the origin of the law, the question arises: Why was it enacted to begin with?  If an unjust law was enacted in the beginning, why are we bound to follow it?

Legal Positivism is then a sense of begging the question.  The concept is: we must obey a law because it is a law.  The so-called Nuremberg Defense ("I was just following orders") assumes legal positivism.  [This is sometimes called the defense of Superior Orders].

Any change of laws becomes binding under this theory so long as the law is followed in the enactment of these laws.  Thus we see a problem.  If the justness or unjustness of a law is irrelevant to the following of the law, then we cannot sanction people like Martin Luther King Jr. when he organized against laws he felt unjust.  Nor can we approve of his defense, given in Letter from a Birmingham Jail, where he stated:

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. 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. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.

Instead, "Bull" O'Connor using his police dogs and fire hoses to break up demonstrations was merely undertaking an exercise in upholding the law.

(Hopefully, you’re instead asking yourself what gave the state the right to pass this law to begin with).

The Double Standard

Most people don't consistently advocate Legal Positivism of course.  Only when they run afoul of the law does it matter.  When one believes a law is unjust they generally want to overturn it, claiming it is an immoral and unjust law.  However, under Legal Positivism, one has no legal basis for doing so.  The best one can do is to say "if you don't like it, vote to change the law."  If the law comes from a source from where there is no appeal (the US Supreme Court decisions or from a totalitarian decree), or if the state has disenfranchised you from the right to vote, there is nothing you can do to change said law.

The practical effect of Legal positivism in America is a double standard.  When a party is in power, they point to a law and say "It must be followed because it is a law."  When out of power, they say "This law is unjust and must be changed."  What is ignored is what gives a law its power.  If it is the state, then it follows that rights and restrictions come from the state because of the assumption that law must be obeyed because it is law.  However, if the rights of the human person do not come from the state, then they cannot be removed by a decree of the state.

Thus we have the abortion debate in a nutshell.  Those who believe in abortion rights tend to argue from the position of legal positivism, while those who oppose abortion rights tend to argue that the rights of the human person come from outside the state, and the state has no authority to remove human rights from any human persons.

Conclusion: When Law and Justice Stand In Opposition

Any opposition to a law which says “This is wrong” is a judgment on moral grounds.  Such opposition assumes there is a higher standard to which law must conform if it is to be considered binding.  Generally, we believe that a law must be just (morally right and fair to all) to be obeyed. 

This means we have to practice what we preach.  If one claims that they have to accept abortion as a right because the state has decreed it to be a right, it is a package deal meaning there is no way to refuse anything else the state wishes to decree.  On the other hand, if we want to invoke a higher standard for judging the law, we must remain consistent and recognize such a standard always holds us accountable for our behavior.

In both cases, it falls to the proponent to show that their view of the law is justified.  Unfortunately, all too often we see people deny (without logical proof) that there are moral absolutes outside of us and then conclude the contrary view is true: that there is no moral standards by which the law is judged.

Not believing [A] does not disprove [A].  Nor does it make [B] automatically true.

Thought for the Day: Why We Should Oppose the idea of Rights Being from the State

On another site, there was a debate on abortion, and an individual claimed that there are no intrinsic rights, only rights provided by the state.  Therefore the state could legalize abortion because the unborn was not a human person.

Interesting… but terrifying.  Why?

Because under this kind of reasoning we would see…

1. In Nazi Germany the right to exterminate "lesser peoples" would have been allowable… after all, they decided Jews and Slavs were non-persons, and rights come from the state.
2. In the South, Bull Connor would have done no wrong in enforcing segregation laws, as the State Government considered they had no rights
3. Apartheid in South Africa would not have been wrong because the government decided non-whites had no rights
4. There would be nothing wrong with Medieval Spain oppressing Jews and Muslims with the Inquisition, as the government decided they had no rights.
5. The Bill of Attainder (punish a person by decree of law without trial) would be legal… because it is the government law [This is forbidden by the Constitution of the United States btw, but was legal in England in that era]
6. The overthrow of the Constitution and the imposition of Sharia Law would be permissible as the state provides the rights.

I could list many other examples, but this idea is a dangerous one and ought to be opposed.  Most people would recognize that the above examples did or could happen, and they are generally viewed with revulsion.  Yet the key to these barbaric examples is the idea that rights are from the government, and not from any other source.

Thus there is nothing good about being democratic and nothing bad about being totalitarian if we accept this standard.  Merely that some governments would be more careful with rights and others would be more free with them.  However, if we accept that rights merely come from the government, then there is nothing to appeal to if we don't like a totalitarian government.

I think I will close this with a quote of Benito Mussolini:

Everything I have said and done is these last years is relativism, by intuition. From the fact that all ideologies are of equal value, that all ideologies are mere fictions, the modern relativist infers that everybody has the right to create for himself his own ideology, and to attempt to enforce it with all the energy of which he is capable. If relativism signifies contempt for fixed categories, and men who claim to be the bearers of an objective immortal truth, then there is nothing more relativistic than fascism. (From his essay Diuturna)

—Benito Mussolini

If there are no absolutes, no moral norms… if the state decides what is a right and what is not, then there is no basis to complain when a government does things we would call unjust.

It is only when one accepts the moral absolutes which those who oppose abortion invoke that there is a basis to opposing the examples of injustice given.