Thoughts on Law and Obligation: They're Not Always the Same

Let's start this article with a question:

Is a law to be followed just because it is a law (or court ruling)?

It would be tragic if this were presumed to be true because we have seen many harmful laws which have been implemented merely on the say so of the government—laws which were accepted unquestioningly by a majority of the people.

The Third Reich is the obvious example of such laws. The Nazi Party came to power legally and then legally (or through fait accompli) changed laws to what they wanted them to be.  if accepting a law on the basis of being a law (the technical term is legal positivism) is true, then it was not wrong for Germans to follow the laws of the Third Reich—something I suspect nobody would agree with. (if you're reading this, and you do agree, then do yourself a favor and keep quiet).

But we don't even have to "violate" Godwin's Law to demonstrate this. We can point to Dred Scott, Plessy v. Ferguson, the acceptance of slavery and segregation, forced relocations (Native American, Japanese). These were legal at one point in America.

So, let's go back to our question. Does the fact that a thing is a law mean that it must be followed?

1. If you answer "Yes," then you must accept the injustices a government that a government commits, and accept the claim that those opposing such a law (say, for example, Rosa Parks or Martin Luther King Jr.) are wrong and ought to be punished for law-breaking.
2. If you answer "No," then it means you recognize that the government can do wrong, and when it does, it must be opposed, and this opposition is legitimate.

I think of this Legal Positivism attitude when I hear certain politicians invoke the "right to abortion" granted by the Supreme Court in Roe v. Wade and other cases. The Supreme Court also affirmed the "right" to own slaves and the "right" to segregate. The Supreme Court may be the last stop when the political will is lacking to amend the Constitution, but we can see that history tells us that the Supreme Court has erred in the past—it is not infallible.

I think this demonstrates that government action cannot be the sole grounds of judging whether a thing is good or bad. If the Supreme Court, or Congress or the President does wrong, and the result of that wrong is a Ruling, or a Law, or an Executive Order, that result must be opposed with the intention of overturning the injustice.

Now of course, opposition cannot be rooted in "I don't like that policy! I want my policy!" (Which is what passes for political dispute today). Opposition must be rooted in the knowledge that some things are wrong—either always wrong, or wrong in circumstance (as an example: murder is always wrong. But in some contexts, like self defense, killing might be justified). This is not a matter of disputing what the percentage should be for the tax rate, where legitimate disputes can occur over what is best. This is a matter of "Does the government have the authority to decree that an evil is now good in a binding manner.

Some skeptics may face this point by denying we can know any thing is objectively wrong. But normally such skepticism is used with the intent of trying to justify doing a bad thing.  The fact is, we do know some things are wrong: The Holocaust, Ethnic Cleansing, Slavery, etc. We know that treating a human being as less than a human being is to be condemned regardless of where it is done or what century it is done.

Feigned or real ignorance is not a valid argument defense against the the fact that a thing is wrong. Yes, a person who truly does not know that a thing is wrong (for example a person who is insane) might have a defense against prosecution, but that does not mean that the act itself is not wrong. An insane man may not have deliberately chosen to commit murder, but that doesn't change the fact that murder is wrong.

But the person who feigns ignorance about the evil of a thing or a person who claims that good and evil is merely an arbitrary decision of the person who decrees it (many people who demand that the Catholic Church change her teaching fall into this category) does not have this defense, because we DO know things are wrong… even when we pretend not to know.

Think of it this way. The person who denies we can know what is truly good or evil will probably NOT think that way if I should steal his money (Hey, it's annoying writing articles on an Android tablet, I could use a laptop, and robbing you would help me get it quicker). Such a person, despite his claims that we can't know if a thing is good or evil, knows that it is wrong to deprive a person of his life or property at the whim of another.

We can see this in the skepticism used to defend the "right" of abortion. Roe v. Wade is essentially an Argument from Ignorance fallacy that claims that we cannot know where life begins, therefore we can't restrict the right to abortion. The problem is, a person taking action while not knowing whether it might harm another is at the least guilty of negligence and possibly manslaughter or even murder. When an action might cause harm to another, we are obligated to make sure it is safe to proceed before acting.

What is worse is the fact that some recent thinking in the defense of abortion holds that it probably is a person, but that is less important than the right not to be pregnant. In other words it effectively says it is ok to treat a person as less than human if it benefits me.

We've been down that road before. Here in America, we've treated Blacks, American Indians, Japanese and other minorities as being less than human for our own convenience. In other countries, Germans have treated Jews and Slavs as less than fully human. Serbs have treated Bosnians and Croats as less than fully human. Turks have treated Armenians as less than fully human.

The list goes on and on, each with government approval.

The only way to avoid such monstrosity is to recognize that law must be subject to truth, and when a government goes against what is true in its laws, it must be opposed.

There are graveyards filled with people because too many just decided that because a thing is a law, it must be acceptable.

Thoughts on Law and Obligation: They're Not Always the Same

Let's start this article with a question:

Is a law to be followed just because it is a law (or court ruling)?

It would be tragic if this were presumed to be true because we have seen many harmful laws which have been implemented merely on the say so of the government—laws which were accepted unquestioningly by a majority of the people.

The Third Reich is the obvious example of such laws. The Nazi Party came to power legally and then legally (or through fait accompli) changed laws to what they wanted them to be.  if accepting a law on the basis of being a law (the technical term is legal positivism) is true, then it was not wrong for Germans to follow the laws of the Third Reich—something I suspect nobody would agree with. (if you're reading this, and you do agree, then do yourself a favor and keep quiet).

But we don't even have to "violate" Godwin's Law to demonstrate this. We can point to Dred Scott, Plessy v. Ferguson, the acceptance of slavery and segregation, forced relocations (Native American, Japanese). These were legal at one point in America.

So, let's go back to our question. Does the fact that a thing is a law mean that it must be followed?

1. If you answer "Yes," then you must accept the injustices a government that a government commits, and accept the claim that those opposing such a law (say, for example, Rosa Parks or Martin Luther King Jr.) are wrong and ought to be punished for law-breaking.
2. If you answer "No," then it means you recognize that the government can do wrong, and when it does, it must be opposed, and this opposition is legitimate.

I think of this Legal Positivism attitude when I hear certain politicians invoke the "right to abortion" granted by the Supreme Court in Roe v. Wade and other cases. The Supreme Court also affirmed the "right" to own slaves and the "right" to segregate. The Supreme Court may be the last stop when the political will is lacking to amend the Constitution, but we can see that history tells us that the Supreme Court has erred in the past—it is not infallible.

I think this demonstrates that government action cannot be the sole grounds of judging whether a thing is good or bad. If the Supreme Court, or Congress or the President does wrong, and the result of that wrong is a Ruling, or a Law, or an Executive Order, that result must be opposed with the intention of overturning the injustice.

Now of course, opposition cannot be rooted in "I don't like that policy! I want my policy!" (Which is what passes for political dispute today). Opposition must be rooted in the knowledge that some things are wrong—either always wrong, or wrong in circumstance (as an example: murder is always wrong. But in some contexts, like self defense, killing might be justified). This is not a matter of disputing what the percentage should be for the tax rate, where legitimate disputes can occur over what is best. This is a matter of "Does the government have the authority to decree that an evil is now good in a binding manner.

Some skeptics may face this point by denying we can know any thing is objectively wrong. But normally such skepticism is used with the intent of trying to justify doing a bad thing.  The fact is, we do know some things are wrong: The Holocaust, Ethnic Cleansing, Slavery, etc. We know that treating a human being as less than a human being is to be condemned regardless of where it is done or what century it is done.

Feigned or real ignorance is not a valid argument defense against the the fact that a thing is wrong. Yes, a person who truly does not know that a thing is wrong (for example a person who is insane) might have a defense against prosecution, but that does not mean that the act itself is not wrong. An insane man may not have deliberately chosen to commit murder, but that doesn't change the fact that murder is wrong.

But the person who feigns ignorance about the evil of a thing or a person who claims that good and evil is merely an arbitrary decision of the person who decrees it (many people who demand that the Catholic Church change her teaching fall into this category) does not have this defense, because we DO know things are wrong… even when we pretend not to know.

Think of it this way. The person who denies we can know what is truly good or evil will probably NOT think that way if I should steal his money (Hey, it's annoying writing articles on an Android tablet, I could use a laptop, and robbing you would help me get it quicker). Such a person, despite his claims that we can't know if a thing is good or evil, knows that it is wrong to deprive a person of his life or property at the whim of another.

We can see this in the skepticism used to defend the "right" of abortion. Roe v. Wade is essentially an Argument from Ignorance fallacy that claims that we cannot know where life begins, therefore we can't restrict the right to abortion. The problem is, a person taking action while not knowing whether it might harm another is at the least guilty of negligence and possibly manslaughter or even murder. When an action might cause harm to another, we are obligated to make sure it is safe to proceed before acting.

What is worse is the fact that some recent thinking in the defense of abortion holds that it probably is a person, but that is less important than the right not to be pregnant. In other words it effectively says it is ok to treat a person as less than human if it benefits me.

We've been down that road before. Here in America, we've treated Blacks, American Indians, Japanese and other minorities as being less than human for our own convenience. In other countries, Germans have treated Jews and Slavs as less than fully human. Serbs have treated Bosnians and Croats as less than fully human. Turks have treated Armenians as less than fully human.

The list goes on and on, each with government approval.

The only way to avoid such monstrosity is to recognize that law must be subject to truth, and when a government goes against what is true in its laws, it must be opposed.

There are graveyards filled with people because too many just decided that because a thing is a law, it must be acceptable.

Thoughts on Freedom, Rights and Responsibilities

Introduction

The modern view of freedom tends to look at it as if any attempts to restrict what we want to do as a sin against our "rights."  Thus pornography and violent video games become "artistic" and any attempt to restrict access to these things become a "violation" of our rights.

The view that we have a "right" to do whatever we want is insanely self-destructive.  If freedom is to be understood as the "right" to do whatever we want without restrictions, it means we have no right to object to whatever we might view as harmful or repugnant because it "forces our views on another person."

Yet most people would recognize things like child pornography to be offensive and most people would see this as something which nobody has a "right" to.  (Those who say otherwise are not considered to have a reasonable opinion), which indicates that not all rights are "acceptable," and some restrictions are reasonable.

"Consenting Adults" is a phrase which Shows Restrictions

The term "consenting adults" for example is a term which shows there are restrictions on "freedoms."

1. The people involved must have reached the age of majority where they are considered competent to make responsible decisions and consider the consequences.
2. The people involved must freely consent.

Neither a willing minor nor an unwilling adult can take part in such an act.  The minor is not considered competent to be able to give informed consent and a person cannot be coerced to do something which they find offensive.

This means we have an absolute restriction: A person's freedom to do a thing is limited if the subject of the act is unable or unwilling to give consent.  Pedophilia then would be condemned because even if the child should consent, we do not consider the child to be able to give consent as required.

However, once we recognize this, we can challenge the principle of abortion.  If the unborn is a human person, he is unable to give consent to being aborted.  Thus, "Consenting Adults" is a clause which indicts abortion.

Defining Persons Selectively

Some say in response to this, "Well the fetus is not a person."  This leads us then to ask, "Who defines what is and is not a person?"

We have, in history, some examples of the government defining some as being less than human.  Pre-Civil War America considered African Americans as less than fully human and less capable than whites to reason and think clearly and thus could be enslaved.  Nazi Germany treated certain groups (Jews, Slavs, Gypsies and others) as subhuman who could be enslaved or exterminated and practiced the extermination of those who were considered mentally or physically unfit.

We can now look back on these times with disgust and with horror, recognizing that a government does not have a right to decree certain Homo sapiens as being less than human, and such a law cannot change what a person is.  A law which denies the personhood of the Homo sapiens goes against reality, against nature.

Human Rights and Gender

Of course there are some differences which are unavoidable.  All human persons are male or female regardless of race, age, belief or sexual preference.  Both are fully human and both have the rights of a human being, but the two are not the same.  Because both are fully human, one may not be treated as superior or inferior to the other on account of gender.

Gender is not inconsequential however.  Human biology impacts how each interacts.  The woman can give birth.  The man cannot.  This leaves us with two principles:

1. Differences in gender does not mean that this is all they can do.  (A woman is not limited to ONLY being a mother for example)
2. BUT since these functions are a part of nature, they cannot be ignored or suppressed.

Race and sexual preferences are not the same as gender.  Race does not change the fact that one is a Homo Sapiens.  Sexual preference does not change the fact of the actual gender.

Marriage, Gender, Race and Sexual Preference

Biologically, the sexual act involves the reproductive organs of two persons, one of each gender.  Acts which do not involve both the male and female reproductive organs is nothing more than sodomy.

Marriage, until the latest usurpations by government, has always been recognized as a family unit joined together by a man and a woman in a permanent sexual relationship which has at least the potential for future offspring and is formed together for that intent (If the man or woman is infertile is irrelevant.  Offspring is accepted as a natural part of the married life.  Infertility caused by age or infirmity cannot be helped but does not make the man any less a man or the woman any less a woman).

Restrictions on marriage due to race (or ethnicity) is an unnatural restriction.  A Homo sapiens male of one ethnicity and a Homo sapiens female of another ethnicity are able to form this permanent sexual union with the potential of having children.

However, sexual preference is NOT an unnatural restriction.  Between people of the same gender, there cannot be a sexual act, only sodomy.  There cannot be the potential for future offspring and such a union cannot be formed with acceptance of this motive.

Thus we can see it is a false analogy to compare the restriction of "gay marriage" with the unnatural laws forbidding people of different ethnicities to marry. The fact is, governments have no right to declare an ethnicity "less than human" and have no right to deny the difference between gender.  Marriage predates government as a basis for society and a government which attempts to change what marriage is through law goes outside of their authority.

Truth and Law

Aristotle defined Truth and Falsehood saying:

To say of what is that it is not, or of what is not that it is, is false, while to say of what is that it is, and of what is not that it is not, is true.

This is a principle which demonstrates that since a thing is what it is and cannot be what it is not, truth cannot be relative.  If a living being is a male, it is true to say this being is a male and false to say it is not a male.  If it is wrong to murder, we speak falsely if we say it is not wrong to murder.  We cannot abolish the laws of nature, such as the law of gravity.  Nor can we abolish biology.

That which IS cannot be declared IS NOT by a government.  That which IS NOT cannot be declared IS.  This is not a case of "forcing beliefs on another."  It is recognizing reality.  A government which attempts to pass laws contrary to what is true is in fact the one which is trying to impose their beliefs on another.

Legal Positivism

Legal Positivism is the concept that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a governmental entity or political institution, including administrative, executive, legislative, and judicial bodies.  In other words, what man defines as law is the only source of law and truth, morality, natural law and other sources are irrelevant.  The problem is of course that whatever laws man invents on his own authority man can undo.  So if man creates the freedom of speech, he can undo that freedom.

This is why the Declaration of Independence states:

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.

The rights which all men possess do not come from the government but from the Creator – which means they are rights which come from outside of us and cannot be taken away from us.  Quite frankly, legal positivism is inimical to the concept of rights and freedoms which our nation was founded on.

Ipse Dixit and Law

Yet legal positivism seems to be the philosophy of the American Government today. There is no longer a sense of understanding what IS true with government seeking to reflect that truth. Rather we have a government fiat declaring what we must do… with the only source of authority being the government saying so. Truth is no longer relevant. Rather we have coercion. Effectively the government says "We have decreed it so it is right. If you refuse to comply, we will take actions against you."

Ipse dixit is a claim which only has the fact that a person said it as its authority.  In America, we often rely on ipse dixit as the source of authority for a "right."  The Supreme Court said abortion is a "right."  Therefore it is.  However, when one realizes that the Supreme Court once ruled "Separate but Equal" was legally acceptable and accepted Internment camps for the Japanese, we can see that the Supreme Court is not a credible source of authority to justify a legally binding position as just or true.

The problem is, of course, that since governments can and do make unjust laws we can and must judge such laws based on a proper understanding of justice.  In speaking out against unjust laws which some favor, we are not attempting to "force views on others."  We are saying the government does wrong and goes beyond its authority when its laws go against the rights (with corresponding responsibilities) given us by our Creator.  If members of the public, if lawmakers believe that the Christian view of good and evil is wrong, that does not make it wrong simply by their declaration that they disagree with Christian belief.  Rather it falls to them to prove their point and not merely say "I disagree.  Therefore what I say goes."

Conclusion

Since we have recognized that certain restrictions do exist in terms of rights and on the other hand that the state does not have the authority to declare certain things as right we can see that the issue of right and wrong is not an issue of the government saying so, but rather we judge the acts of an individual or a government as right or wrong depending on how it matches up to the truth which we can know but cannot change.

As Christians, we believe that God is good and what is right is a reflection of His goodness and also is what is good for us by our very nature.  The government may decree something which goes against what God calls us to do, but we must repudiate what the government says which forces us to disobey God.  We believe that the government has no right to impose laws on us which force us to choose between God and our lives or livelihood.  The government which does so may appeal to force to accept compliance but we are obligated to obey God rather than men and continue to preach God's commands and message of salvation to the whole world.

We must preach in season and out of season, even if men hate us for speaking the truth of good and evil.  They may malign us, using slanders against us.  But we must recognize that God wants the salvation, not the destruction of sinners.  So we must continue to preach the truth to the world.

Thoughts on Freedom, Rights and Responsibilities

Introduction

The modern view of freedom tends to look at it as if any attempts to restrict what we want to do as a sin against our "rights."  Thus pornography and violent video games become "artistic" and any attempt to restrict access to these things become a "violation" of our rights.

The view that we have a "right" to do whatever we want is insanely self-destructive.  If freedom is to be understood as the "right" to do whatever we want without restrictions, it means we have no right to object to whatever we might view as harmful or repugnant because it "forces our views on another person."

Yet most people would recognize things like child pornography to be offensive and most people would see this as something which nobody has a "right" to.  (Those who say otherwise are not considered to have a reasonable opinion), which indicates that not all rights are "acceptable," and some restrictions are reasonable.

"Consenting Adults" is a phrase which Shows Restrictions

The term "consenting adults" for example is a term which shows there are restrictions on "freedoms."

1. The people involved must have reached the age of majority where they are considered competent to make responsible decisions and consider the consequences.
2. The people involved must freely consent.

Neither a willing minor nor an unwilling adult can take part in such an act.  The minor is not considered competent to be able to give informed consent and a person cannot be coerced to do something which they find offensive.

This means we have an absolute restriction: A person's freedom to do a thing is limited if the subject of the act is unable or unwilling to give consent.  Pedophilia then would be condemned because even if the child should consent, we do not consider the child to be able to give consent as required.

However, once we recognize this, we can challenge the principle of abortion.  If the unborn is a human person, he is unable to give consent to being aborted.  Thus, "Consenting Adults" is a clause which indicts abortion.

Defining Persons Selectively

Some say in response to this, "Well the fetus is not a person."  This leads us then to ask, "Who defines what is and is not a person?"

We have, in history, some examples of the government defining some as being less than human.  Pre-Civil War America considered African Americans as less than fully human and less capable than whites to reason and think clearly and thus could be enslaved.  Nazi Germany treated certain groups (Jews, Slavs, Gypsies and others) as subhuman who could be enslaved or exterminated and practiced the extermination of those who were considered mentally or physically unfit.

We can now look back on these times with disgust and with horror, recognizing that a government does not have a right to decree certain Homo sapiens as being less than human, and such a law cannot change what a person is.  A law which denies the personhood of the Homo sapiens goes against reality, against nature.

Human Rights and Gender

Of course there are some differences which are unavoidable.  All human persons are male or female regardless of race, age, belief or sexual preference.  Both are fully human and both have the rights of a human being, but the two are not the same.  Because both are fully human, one may not be treated as superior or inferior to the other on account of gender.

Gender is not inconsequential however.  Human biology impacts how each interacts.  The woman can give birth.  The man cannot.  This leaves us with two principles:

1. Differences in gender does not mean that this is all they can do.  (A woman is not limited to ONLY being a mother for example)
2. BUT since these functions are a part of nature, they cannot be ignored or suppressed.

Race and sexual preferences are not the same as gender.  Race does not change the fact that one is a Homo Sapiens.  Sexual preference does not change the fact of the actual gender.

Marriage, Gender, Race and Sexual Preference

Biologically, the sexual act involves the reproductive organs of two persons, one of each gender.  Acts which do not involve both the male and female reproductive organs is nothing more than sodomy.

Marriage, until the latest usurpations by government, has always been recognized as a family unit joined together by a man and a woman in a permanent sexual relationship which has at least the potential for future offspring and is formed together for that intent (If the man or woman is infertile is irrelevant.  Offspring is accepted as a natural part of the married life.  Infertility caused by age or infirmity cannot be helped but does not make the man any less a man or the woman any less a woman).

Restrictions on marriage due to race (or ethnicity) is an unnatural restriction.  A Homo sapiens male of one ethnicity and a Homo sapiens female of another ethnicity are able to form this permanent sexual union with the potential of having children.

However, sexual preference is NOT an unnatural restriction.  Between people of the same gender, there cannot be a sexual act, only sodomy.  There cannot be the potential for future offspring and such a union cannot be formed with acceptance of this motive.

Thus we can see it is a false analogy to compare the restriction of "gay marriage" with the unnatural laws forbidding people of different ethnicities to marry. The fact is, governments have no right to declare an ethnicity "less than human" and have no right to deny the difference between gender.  Marriage predates government as a basis for society and a government which attempts to change what marriage is through law goes outside of their authority.

Truth and Law

Aristotle defined Truth and Falsehood saying:

To say of what is that it is not, or of what is not that it is, is false, while to say of what is that it is, and of what is not that it is not, is true.

This is a principle which demonstrates that since a thing is what it is and cannot be what it is not, truth cannot be relative.  If a living being is a male, it is true to say this being is a male and false to say it is not a male.  If it is wrong to murder, we speak falsely if we say it is not wrong to murder.  We cannot abolish the laws of nature, such as the law of gravity.  Nor can we abolish biology.

That which IS cannot be declared IS NOT by a government.  That which IS NOT cannot be declared IS.  This is not a case of "forcing beliefs on another."  It is recognizing reality.  A government which attempts to pass laws contrary to what is true is in fact the one which is trying to impose their beliefs on another.

Legal Positivism

Legal Positivism is the concept that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a governmental entity or political institution, including administrative, executive, legislative, and judicial bodies.  In other words, what man defines as law is the only source of law and truth, morality, natural law and other sources are irrelevant.  The problem is of course that whatever laws man invents on his own authority man can undo.  So if man creates the freedom of speech, he can undo that freedom.

This is why the Declaration of Independence states:

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.

The rights which all men possess do not come from the government but from the Creator – which means they are rights which come from outside of us and cannot be taken away from us.  Quite frankly, legal positivism is inimical to the concept of rights and freedoms which our nation was founded on.

Ipse Dixit and Law

Yet legal positivism seems to be the philosophy of the American Government today. There is no longer a sense of understanding what IS true with government seeking to reflect that truth. Rather we have a government fiat declaring what we must do… with the only source of authority being the government saying so. Truth is no longer relevant. Rather we have coercion. Effectively the government says "We have decreed it so it is right. If you refuse to comply, we will take actions against you."

Ipse dixit is a claim which only has the fact that a person said it as its authority.  In America, we often rely on ipse dixit as the source of authority for a "right."  The Supreme Court said abortion is a "right."  Therefore it is.  However, when one realizes that the Supreme Court once ruled "Separate but Equal" was legally acceptable and accepted Internment camps for the Japanese, we can see that the Supreme Court is not a credible source of authority to justify a legally binding position as just or true.

The problem is, of course, that since governments can and do make unjust laws we can and must judge such laws based on a proper understanding of justice.  In speaking out against unjust laws which some favor, we are not attempting to "force views on others."  We are saying the government does wrong and goes beyond its authority when its laws go against the rights (with corresponding responsibilities) given us by our Creator.  If members of the public, if lawmakers believe that the Christian view of good and evil is wrong, that does not make it wrong simply by their declaration that they disagree with Christian belief.  Rather it falls to them to prove their point and not merely say "I disagree.  Therefore what I say goes."

Conclusion

Since we have recognized that certain restrictions do exist in terms of rights and on the other hand that the state does not have the authority to declare certain things as right we can see that the issue of right and wrong is not an issue of the government saying so, but rather we judge the acts of an individual or a government as right or wrong depending on how it matches up to the truth which we can know but cannot change.

As Christians, we believe that God is good and what is right is a reflection of His goodness and also is what is good for us by our very nature.  The government may decree something which goes against what God calls us to do, but we must repudiate what the government says which forces us to disobey God.  We believe that the government has no right to impose laws on us which force us to choose between God and our lives or livelihood.  The government which does so may appeal to force to accept compliance but we are obligated to obey God rather than men and continue to preach God's commands and message of salvation to the whole world.

We must preach in season and out of season, even if men hate us for speaking the truth of good and evil.  They may malign us, using slanders against us.  But we must recognize that God wants the salvation, not the destruction of sinners.  So we must continue to preach the truth to the world.

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.