Monday, April 12, 2021

There's No Law But The Law


The existence of the law is one thing; it's 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.

These are words of John Austin, who is considered to be the founder of a philosophy of law called "legal positivism."  He was a contemporary of Jeremy Bentham.  J.S. Mill attended his lectures on law.

A legal positivist maintains that the law is something that exists regardless of whether it's good or bad.  It is something different and separate from what's described as natural law.  When we study the law as a functioning system, therefore, it's specious to contend, as people too often do, that it isn't really the law because it doesn't meet a particular moral standard, whether that standard be natural law, the commandments of God, or some other standard by which right and wrong, good and bad may be determined.

According to the legal positivist, it's incorrect, therefore, to claim that a law considered wrong or bad according to some such standard isn't a law.  It's a law alright.  It may be a bad one.  We may claim it should be changed, or shouldn't be followed, but a law it is and so it shall remain until changed or revoked.

There are those who have difficulty accepting this view.  They appear to believe that the law must be something else; something higher, something that's just, fair, equitable.   A law must comport with natural law, and recognize and uphold natural rights.  The law according to their point of view isn't the law we humans and our governments may adopt, promulgate and enforce.  The real, true law is otherwise there in some respect, written in the stars as it were, or existing in the mind of God.

The proponents of the American and French Revolution were given to maintaining that the laws they objected to were contrary to natural law and/or natural rights, which were superior to the law imposed by those they rebelled against.  Thus, they were not appropriately law under this conception.  Not being law, there was no obligation to follow them and even a positive duty to defy them.  This apparently was felt necessary to justify rebellion.  It may be it was believed that characterizing them in this fashion created more of a foundation for revolution then characterizing them as merely bad, unjust laws.  A tyrant's laws are more evil if they constitute a violation of the laws of God or Nature than if they only seem bad to other, fallible, humans.

Perhaps this was an understandable view when it was claimed that kings ruled by divine right and governmental authority could not be challenged without being dramatically unjust.  Those times are gone, though.  When man is the measure of all things, appeals to an unwritten law are unavailing, or at least unconvincing.  

Some people tend to believe that the acceptance of legal positivism requires that we believe all laws, all systems of law, are the same in merit, and that any law must be obeyed.  That's not something that follows from the premise that bad laws are laws nonetheless.  It's a conclusion which in its own way is derived from the belief that the only real law is that of nature or nature's God.  In that case, of course, the laws must be obeyed.  Interestingly, those who don't accept legal positivism will also tend to be those who claim that laws they find objectionable need not be followed.  In that case the law is merely a human contrivance which may be violated, when it serves to protect, for example, rights we believe don't exist, laws which protect people we don't believe should be protected, or laws which allow conduct we believe should be eradicated instead of protected.

Legal positivism imposes a most useful distinction.  That distinction is between the existence of the law and its worth, or merit.  Knowing what a law is, why it was adopted, how it functions in a legal system, is far more useful in determining whether it should or should not be changed than some effort at deduction from assumed standards, especially those that are supposed to be embodied in nature or exist in the mind of God.  



Thursday, March 25, 2021

The Gun Gavotte


It's that time again.  It's become something of a routine, though it may be more accurate to describe it as a dance.  I refer, of course, to what takes place in our Great Republic when several people are shot at more or less the same time by the same person or persons.  This is what is referred to as a "mass shooting."  I leave it to others--probably to right-wing pundits--to ponder what a "mass shooting" is and when a shooting may properly be called one.  I won't argue that particular point, which seems an insignificant one.

I ponder instead the reaction to the shooter's work.  I think we may call it a dance, as it seems to be a series of similar, if not identical, movements performed after the deaths take place which have no real effect beyond exercising and perhaps in some way pleasing those who perform them.  Shock.  Thoughts and prayers.  Calls for gun reform.  Calls for gun rights.  Posturing by politicians (one might call that part a Promenade).  Dance ends.  Dance begins again after next shooting.

I think we must resign ourselves to the recurrence of these events (the shootings and the danse macabre that follows).  There's no reasonable basis for the belief that what has taken and is taking place, and the reaction to it, will cease.  There are many, many guns here, and many people have them, and many more guns are being made and sold and otherwise are transferred from person to person.  People get or can get guns, and people for one reason or another use them, sometimes on other people.  Some guns are particularly effective in shooting more than one person at one time, and those who purport to represent us in government are not inclined to discontinue their sale or limit their availability.  As we become more densely populated, and treatment for mental illness becomes less available; as stress rises and misinformation increases and the means by which to transmit it grow; as people become less well-off and more contentious, guns will be used.

There may be ways of limiting gun violence.  If so, however, they won't be explored, not in this country.  Our nation lives by the gun.  It may die by the gun.  It will in any case, however, have the gun. 

So, my brothers and sisters, I think we must do our best to dodge the bullets.  We may still watch the dance, if we like such things, but I suspect that even the dancers will grow tired eventually.  If not, perhaps they'll be shot during some future event.  







Monday, March 15, 2021

The Vatican Just Says No


There once was a species called human,
Who thought God cared what they were doin',
But the truth is He said that "For me, they've been dead,
Since the Garden of Eden stopped bloomin'."

That's just a limerick of my creation which I thought up not long ago in a different context, but it seems appropriate in light of the Vatican's announcement that it can't "bless" homosexual unions.  I was going to write that it seems appropriate so near to St. Patrick's day, but a gnawing sense of doubt combined with a quick search of the Internet reveals that the limerick didn't necessarily have its origins in Ireland, though there is an Irish city which bears the name. 

I've noted before that our religions are not unnaturally, but still unreasonably, based on the assumption that if there is a God, that God is fascinated, perhaps even obsessed, with humanity.  Given the vastness of the universe, this seems unlikely.  To maintain that we're God's sole or greatest concern is preposterous, as we're mere specks on a speck among an unimaginably large host of specks which make up what God is said to have created.

Even more unreasonable (I think) is the belief that God is particularly concerned with our sexual conduct.  Any God which lays down rules governing who we have sex with and how we have sex is a very small, petty, and peculiar God indeed.  It follows that those of us who believe there are such rules and seek to enforce them are even smaller, more petty and peculiar.

And so we come to this latest declaration by the Vatican, endorsed, we're told, by the Pontifex Maximus himself.  The One Holy Catholic and Apostolic Church welcomes those who are gay ("homosexually inclined" is the wording used, I think) in a kind of grudging fashion, according to the declaration, but no union of gays may be blessed because only the sacramental may be blessed.  The most relevant sacrament is marriage and marriage, as we know, may only be between a male and a female.  Thus, no blessed gay unions and as sex is inappropriate outside of marriage, all gay sex is inappropriate as well, and may never be appropriate.  

This comes from having a Busybody God, a name I've used in the past in this blog.  But as you may guess from the limerick at the top of this post, I find myself curious regarding why such a God--the kind that is worshipped by the Abrahamic religions--would care what we do, if we accept the doctrine of Original Sin.

Under that doctrine, we're at the least tainted by the sin committed by eating of the Tree of Knowledge by our ancestors, the first humans, which caused them to be expelled from the Garden of Eden.  There are several versions of the doctrine of Original Sin.  The most draconian of them has us damned from birth.  We may nonetheless be saved if God chooses through the medium of Grace, but that's in God's sole discretion.  Then there is the version that proposes that we're cleansed of the sin by baptism.  Another version is that Jesus saved us from Original Sin through his sacrifice.  There may be more versions, I just don't know.  But even the kinder, gentler versions I know of provide that all of us are born with the proclivity to sin as a result of the first (notably heterosexual) humans.

So, we're either damned or damnable from the moment we are born.  If that's the case, though, why does God even bother to peer at us suspiciously, and why did he bother to dream up and impose the many regulations it's claimed he imposed on us after the Garden of Eden was shut down?  He would have written us off after the Original Sin was committed, I would think, as we all would be sinners of necessity thereafter.  Can it be the case that he decided in the first century C.E. that we may in one manner or another avoid the curse of Original Sin, and so appeared among us and induced us to create the sacrament of baptism sometime later?  What changed his mind?  Why are those who lived before then damned without recourse?  Why would he be so interested in what we do given that it's more likely than not that were going to sin anyway, being inherently inclined to sin?

The problems which arise from belief in such a personal God so fascinated with us aren't merely limited to those that result from the fact such a view is incredible, therefore.  They include those that arise when the doctrine which is inferred from that view is made and applied.
 

Monday, February 15, 2021

Angst Misbehavin'



How have philosophers, and others, come to dwell on such phenomena (if they may be called that) as angst, dread, nothingness, anxiety and other such foreboding--what, exactly?  Feelings? Things? States?  It seems to me a good question, as by my understanding these woeful conditions of mind are said to exist separate from any particular object.  That's what distinguishes them from fear, for example.  We fear something or someone in particular.  The angst, dread, etc. written of by philosophers, usually existentialists, have no particular object as they refer to life, living in general, or the world in general, all their constituents conspiring, as it were, to make us miserable in some profound sense.

Angst seems to have been created by that most melancholy of all Danes, Soren Kierkegaard.  Kierkegaard makes Hamlet seem positively jolly.  The author of such works as Fear and Loathing and Sickness unto Death wouldn't be the life of any party, except perhaps a burial party, at which he could, I suppose, cheer others present by making comments regarding the good fortune of the deceased to be quit of this vale of tears.

Kierkegaard was a (very sad) man of the 19th century, and it seems the concept of life and the world as full of woe and the relentless urge to expound on that subject in painful though not useful detail developed during the 19th and 20th centuries, at first at least through the efforts of Europeans.  I wonder why, and here provide a modest effort at an explanation, or the beginnings of one.

I think of ancient Western philosophy, and I know of no instance where the followers of Plato or Aristotle, the Stoics or Epicureans, or philosophers of any ancient school of which I know felt or described anything even nominally similar to angst, dread, anxiety or any other items in the cornucopia of woe posited by existentialists or nihilists, let alone anti-natalists who go them one better by not only decrying the world but contending it's so full of suffering that it is immoral to have children.  Even the Platonists and Neo-Platonists, who thought there was a realm beyond the imperfect world, to my knowledge didn't dread it as a whole.

Something must have happened to change this perception of the world so completely.  Ancient Western philosophy, like so much else, was stopped cold by the onset of Christianity, which later tried to assimilate it, though not all of it.  Christianity famously condemned the world and all that's in it, including we humans, as sinful and wicked.  Like certain ancient philosophers, they thought there was a higher realm.  But they thought that realm was available only to Christians, and very good Christians to boot.  The ancient pagan philosophers didn't think that the higher realm was available exclusively to any follower of any particular religion.

Christianity began to lose its grip on thinkers and intellectuals from about the 18th century on.  Many, like Voltaire, accepted a kind of Deism.  But subsequently, those no longer able to accept Christianity or a Christian god found it impossible, for some reason, to accept the world.  "Without God, anything is permissible" are the words used by Dostoyevsky in The Brothers Karamazov.  Despite the fact that the ancients accepted the world as good, or at least not dreadful, without the need for believing in a personal deity like the one endorsed by Christianity, the intellectuals of the 19th and 20th century could not do so.  And so, for them, anything was possible.  There was no longer a guide for conduct, no standards to be applied, nothing good or bad, no purpose to life; we're deposited in the world for no reason, only to suffer.

If this hypothesis has any basis, it's striking the extent to which the absence of God, of standards, of morals derived from a creator, rendered the intellectuals of formerly Christian Europe hopeless and in despair.  The reaction to the Death of God was dramatic, even melodramatic.  The search for alternatives began, but these thinkers had been so convinced of the need for absolute knowledge and standards of conduct that the probable, the likely, the well established didn't suffice to assuage their concerns.  

And so nothing quite worked.  Nothing replaced Christianity.  Existentialism, nihilism, were unsatisfactory and fostered melancholy at best, angst, dread and anxiety at worst.  Some became mystics or quasi-mystics, seeing some form of redemption through nationalism and racist ideologies and belief in leaders amounting to demigods.

The result is many of us see the world as not only separate from us, but deadly to us.  We're outsiders without hope or function.  We have no place to go.  For everything, we're out of tune.  

Separate from the world, but not beyond it in any permanent sense.  Subject to it but incapable of remedying our lot or making things better for us or others, there being no God to tell us that's what we should do.  It seems a remarkably self-pitying, futile way to live.  If it is the result of a disenchantment with a particular religious view which became rationally unsupportable, however, there are ways to overcome that disenchantment, as the ancients knew but we have forgotten.

Tuesday, February 2, 2021

On Purges and Cancel Culture



We live in a great Melodrama.  More and more we exaggerate ourselves and our lives.  We may have forgotten what drama and tragedy really are in our self-importance and self-pity.  We've experienced real ostracism and purges in the past, as practiced by authoritarian and totalitarian governments.  For example, the show trials held during Stalin's reign in the Soviet Union, or the Cultural Revolution in China.  At least for now, those who disagree with others aren't being sent to reeducation camps or the Gulag.  It's silly to compare the purges of the past to Cancel Culture.

"Cancel Culture" is a current catch-phrase, intended to describe the expression of outrage at particular views combined with conduct directed to suppress them, in various ways.  Predominately through boycott and efforts to assure the views in question aren't expressed through, e.g., cancellation (naturally enough) of appearances or opportunities for communication.  It apparently is most seen in the halls of academia but finds its way, as all things do, to the media, social and traditional, and is noted among those exercising the right of assembly, those in politics, those in entertainment.

The purported existence of Cancel Culture as a rampant "thing" has triggered claims that "free speech" is in danger, or that this "culture" is contrary to it.  "Free speech" itself is little understood by many, as I've complained more than once in this blog.  Commonly understood, "free speech" bears little resemblance to the legal right protected by the First Amendment, as it is instead apparently the belief many hold that each and everyone of us must be allowed to express whatever we may think or believe at any time and any place, no matter what it may be.

Cancel Culture sometimes seems to be associated with the need, at least in the academy, for "safe spaces" and "trigger warnings" intended to protect those who may find certain speech or expression offensive, or provide them with warning allowing them to prepare to be offended.  Providing such things has also been subject to attack by the proponents of "free speech" and perhaps those who believe that providing such protection is unwise and impractical as people will be offensive in some manner to some of us at all times, and there should be no expectation of protection.

Cancel Culture as a "thing" is deplored primarily these days by those of the right-wing (I don't like to call such people "conservatives" as I think conservatism as a respectable political and social philosophy has all but expired in our Great Republic).  But it's difficult to take those of the right-wing we hear most of now all that seriously, except perhaps as purveyors of lunatic conspiracy theories, at which they excel.  It isn't that hard, either, to complain if lunacy is restricted.  In fact, it's hard, for me at least, to be concerned if bigotry, hate, ignorance, or incitement to violence isn't tolerated but is instead discouraged.

Here we reach the problems associated with championing unbridled free speech.  Some speech (meaning communication generally) is contemptible, just as people are contemptible.  Why must contemptible, hateful thought and expression be tolerated?  In what sense is it immoral to be intolerant of bigotry--of, for example, purveyors of Nazi ideology and those who praise the benefits of slavery and their promulgation of those views?

I don't think it is.  Nor do I see any benefit from protecting the expression of those views, unless that protection is needed to assure that government cannot suppress expression generally.  As a limitation of government power, freedom of expression is a necessary legal right.  Because the power of government may be wielded potentially by anyone, and what they may think is appropriate expression will vary, government's ability to restrict expression must be limited even if it means that government will not have the power to repress certain objectionable views.

It doesn't follow that people should be prevented from expressing outrage or disgust at the expression of certain positions, nor does it follow they should be prevented from taking steps available, legally, to object to and protest that expression.  It may well be that they may do so unwisely or unfairly, and nothing should prevent other people from pointing that out if they do so, provided they also do so legally.  

Some claim that "Big Tech" or social media shouldn't be allowed to prevent those who espouse certain views from using the services they provide.  It's contended their powers are so extensive now that they pose the same danger as does government when it comes to free speech.  

I don't see how that can be, though, if the use of the services they provide for expression and access to expression is voluntary, and other means of expression are available.  To the extent that is the case, then I don't think there can be a comparison.  There's nothing that requires us to be on Twitter or Facebook, let alone use them to communicate political or social views, let alone use them to access such views.  It's odd that those who believe in free markets should object to the freedom of owners of certain kinds of assets to impose rules for their use by others.  

There is no right to free speech outside of the First Amendment in this country.  That legal right is restricted.  The tendency to claim there is a right to free speech beyond that legal right simply fosters confusion, and at worst convinces some that they must be free to say whatever they want whenever they want.  Sadly, those who are convinced that is the case usually have nothing to say worth listening to.