Lez affair economics and formal cooperation

January 1, 2013 § 12 Comments

I’ve noted before that the language used by libertines about the government “allowing” various contracts (like so-called “gay marriage”) is inherently dishonest language, because the enforcement of contracts is not a passivity of government but an activity of government.   Specific terms in a contract cannot be enforced without the enforcer of the contract intending those specific terms.  If the enforcer of the contract intends the terms of the contract he is formally cooperating with that contract.[1]

It follows, then, that if a contract has intrinsically immoral terms – say it charges usury for money lent or asserts that two homosexuals are married – that the government officials who enforce it, and indeed anyone and everyone who intends that its intrinsically immoral terms be enforced and acts in any way toward assisting in that end, including even merely advocation by speech, commits formal cooperation with evil.

So the notion that people should be “allowed” to enter into contracts as long as they do so by mutual consent, independent of whether the contract terms are morally acceptable, is a bit problematic.

[1] It is possible in many cases for the enforcer to treat various terms of a contract as severable.  In such a case the morally right course of action could be to enforce the morally just terms and treat the unjust terms as null and void.  In a contract for usury this might mean (depending on the particulars) enforcing return of principal but not enforcing payment of interest.

§ 12 Responses to Lez affair economics and formal cooperation

  • tz2026 says:

    Not all terms in any contract are valid there is a large body of law, both statute and precedent governing which terms are valid and/or enforceable. I only say that to point out not every contract or every provision is valid.

    The marriage issue arises because we have cast this pearl before swine – rendered a sacrament unto Caesar. That creates lots of evils. We grant subsidy or benefit based on whether someone is “married” – as defined by the state not the church.

    What about a marriage contract after a (civil) divorce? One that has not been annulled? Henry VIII? Did Thomas More lose his head over nothing? Who decides on the validity of any particular marriage? The church or the state? If they disagree the state will still have the use of violence to enforce their view.

    What of polygamy which is in the old testament?

    What of a contract between two men or women which does not use the word “marriage”, but gives mutual power of attorney and similar things and is a marriage contract in essence?

    Henry VIII married a woman each time. We need to write HIS and Luther’s view of marriage into Federal and State law?

    For me, I think the world would be better if Marriage was “till death do us part” – remove “no fault divorce”, but allowed the fraction of a percent of “gay marriage” over the 50% divorce rate where there “gay marriage” is not recognized. No “one flesh” is formed in a Gay Marriage, but such is drawn and quartered by civil divorce. Yet the pandemic of the latter seems not even to be an issue.

    What of a constitutional amendment that said: 1. No one can force anyone else to recognize a marriage (so Catholic adoption can place children with whom they define as “married” without interference), 2. All marriage contracts which are entered into voluntarily cannot be modified, cancelled, altered, etc. by statute or courts. This would allow the Church to REQUIRE a real “till death do us part”, “no contraception”, severe penalties for separation without a showing of abuse, adultery, or abandonment, etc. before a marriage could be conducted in a church with a (Catholic) priest. Right now Catholic sacramental marriage is not legally enforceable. I would trade allowing a small bit of nonsense for the right to recognize the indissolubility even in private contract.

    The left wants Caesar to do all the works of mercy, the right wants to enforce morality (as opposed to ethics). Both want massive, intrusive government, but somehow assume such a concentration of power will not be corrupted as per Acton. But neither saints nor angels typically sit in the legislatures, courts, or the executive offices. And what ends up getting enforced is a mockery of the Natural law.

    For there to be a rule of law, the law itself should be simple, obvious, and aligned with Natural Law, CS Lewis “Tao”. And with proper subsidiarity. When you call on remote government to exceed its competence, make exceptions based on religious minutiae (which is typically not Roman Catholic), you create the rule of men. Then the devil will enter and corrupt and possess those men and the institution.

    The state is at best stupid, at worst corrupt. Brute (including in the sense of unreasoning) force. You would give them a sacrament? Would you also have them define and regulate the Eucharist? Pagan justice starts with the statement “What is Truth?”, followed by an Obsessive-Compulsive hand-washing declaring no government official is guilty of anything (George Bush signed the paper declaring he was not guilty of the death of Terri Schiavo).

    I would not let my property or liberty, much less my life depend on corrupt people who claim to follow Jesus Christ, or worse Pagans. When the Devil tempted Jesus, he was willing to give all the kingdoms of the earth. This was not an idle boast or exaggeration. I would give no power to Government that I would not want judged and enforced by someone possessed by a demon or in a similar state of evil. This tends to automatically promote a minimalist and subsidiarity based government.

    Would you give the Devil control of marriage on a silver platter? I think you’ve already said you would, albeit by proxy. And he already has instituted “no fault divorce”. You’ve not stated how to prevent the evil and corrupt men you’ve given it to from profaning and perverting it. So either you are wrong in giving it to them in the first place, or such predictable outcomes are somehow (quoting Madeline Albright) “worth it”.

    The kingdoms of this world have not yet become the kingdom of our Lord and of his Christ. He shall reign forever and ever, Alleluia! But for now we have to Handel things the best we can, but for me that means dispersing the little power we grant to rulers.

    As to contracts, consider a faithful Catholic being asked to arbitrate a contract between two pagans or even two Muslims (where the contract says it is under sharia law – note Muslims are strictly against Usury, so a comparison of the definitions might be useful). As a government official, his job is to enforce the law AS IT IS, not to second guess, impose the Catholic view, or do anything else. His “oath” is to the law, (which in a just society should be the rule of law corresponding to natural law). The actual law such as it is, not as he wants it to be even if the result would be unjust by Catholic standards. The executive can use pardon powers or the legislature can alter it if it is in error. He can only enforce it as it is defined or resign. The only exception might be a juror engaging in nullification, but if the juror has expressed his belief in nullification and is seated anyway the result will be just.

    Consider our Lord with the woman caught in Adultery. He was asked to be judge – the Pharisees gave him the authority. Mosaic law and Roman law were in opposition. His resolution showed divine wisdom. But see the original trap. The Mosaic law said you must stone her to death. Jesus gave a solution that upheld Moses while preventing the carrying out of the sentence (which was the essence of the trap). I cannot think of anyone alive sufficiently wise. But perhaps you would have a better solution?

  • Zippy says:

    You’ve not stated how to prevent the evil and corrupt men you’ve given it [power?] to from profaning and perverting it. So either you are wrong in giving it to them in the first place, or such predictable outcomes are somehow (quoting Madeline Albright) “worth it”.

    It isn’t a matter of what is and isn’t worth it. It is a matter of what is and isn’t possible, or even coherent. I think you tend to read a lot more into what I am saying than what I have said: I am trying to articulate the boundaries of what is real, what is true, period, full stop. What is real, what is true, is prior to any judgment about what is and isn’t worth it, etc.

    In other words, you seem to be addressing my post as if it contained policy proposals rather than truth claims.

    The actual law such as it is, not as he wants it to be even if the result would be unjust by Catholic standards.

    I’ve given reasons why I think legal positivism is incoherent before (see here, here, and here, for example). Pope Benedict has also spoken against it.

    If judicial positivism is incoherent then it is like (I have also asserted) liberalism: it isn’t actually possible to practice it, nor is it even coherent as an ideal. It isn’t possible to have a regime of actual legal positivism; it is only possible for people to fool themselves into thinking that that is what they are doing.

    But in the end substantive judgments of right and wrong can’t be avoided; and that those substantive judgments will be made by men with authority also can’t be avoided.

    [Had to fix the first link under “here” – Z]

  • Mike T says:

    I startled a few MRAs when I still had a blog and pointed out to them that “getting out of marriage” literally means the state will not adjudicate your disputes. A lot of people who advocate this don’t realize that the literal–and only–definition of getting the state out of marriage is to have the state disavow any role whatsoever even as contract enforcer.

    It is much like that stupid saying “you can’t legislate (sexual) morality.” Most people who say it don’t even remotely intend to be internally consistent for if they did they wouldn’t outlaw rape, statutory rape, beastiality, etc.

  • Scott W. says:

    I’ve often pointed people to the CDF’s document on this here which resembles Evangelium Vitae in many ways. It doesn’t flesh out policies either, but it does seem to reject the positivist approach. I’ve never really seen anyone interact with it or propose policies consonant with it. It seems even good Catholics have already bought the rifles at Holland and Holland with cases of magic, nuclear-tipped Get-the-Government-out-of-X-Business .700 Nitro Express rounds, and are determined to use them.

  • Svar says:

    What exactly is “legal positivism”?

  • Zippy says:

    Legal positivism is an historically minority view of jurisprudence that has been adopted by contemporary “conservatives” in reaction to the abuse of Supreme Court judicial power (really combined legislative and judicial power, largely because of the legislative effect of stare decisis and judicial review) by liberals.

    The Wikipedia page on it isn’t bad, on a cursory skim. The traditional contrary view is natural law jurisprudence. (I’ve only briefly skimmed sections of both Wikipedia pages and I don’t think much of John Finnis as a representative of the natural law view. Blackstone is much better). The views of the late Robert Bork and current Supreme Court justice Antonin Scalia are representative of legal positivism (canonical books at links).

    I’ll try to answer as if someone asked me in an elevator what the difference is between legal positivism and the natural law view. Naturally it will be a bit rough, but hopefully it will provide a starting point.

    Legal positivism proposes that it is the job of a magistrate to apply, to particular cases, whatever positive rules have been explicitly passed and asserted by the legislature, without reference to any basis for what is truly just or unjust outside of what the legislature expressly asserts. Any “private opinions” the judge has about what is right or wrong, just or unjust, are out of bounds: the judge’s authority does not extend to enforcing (what the legal positivist calls) his “private opinions”. The judge is not authorized to evaluate and apply truth claims about justice; he is only authorized to evaluate and apply empirical or other non-normative truth claims.

    The natural law criticism is that legal positivism (like, I would add for myself, all forms of positivism in any domain and in any language as or more complex than peano arithmetic — but don’t let me go off on a rant and distract you) is incoherent. Like all forms of positivism it attempts to avoid the question of what is true (truly just in this case) and reduce judging of particular cases to value-neutral application of mechanical rules like a computer program. It attempts to reduce the authority of the judge over a particular case to nothing but the positive (explicit statutory) law, presuming incorrectly that this “nothing but” foundation is even coherent, let alone represents the (normative) task and authority of the magistrate.

    In reality the only reason the positive law (explicit law passed by legislatures) has normative force to begin with – the reason why we genuinely are obligated to obey the law, rather than merely following it to the extent that we can’t get away with disobedience for fear of punishment – is because (and to the extent) it derives its authority from natural law. Because legislative authority is derived from natural law, when the positive law passed by legislatures attempts to contradict natural law what is really happening is a self-contradiction: the legislature is attempting to impose a true obligation, on its own authority, which is contrary to other true obligations which do not depend on its authority and indeed are prior to its authority.

    A prominent natural law jurist is Supreme Court justice Clarence Thomas.

    Sorry. Long elevator ride.

  • Svar says:

    Thank you, Zippy.

    “Because legislative authority is derived from natural law”

    How so?

  • Zippy says:

    How so?

    Succinctly, though perhaps unsatisfyingly, because every “ought” is derived from either natural or Divine law. If we genuinely ought to obey the authority of the legislature, or the king, or our parents, or any worldly authority whatsoever – where ‘ought’ refers to a real deontological moral obligation, not merely some expedient to avoid punishment or satisfy selfish desires or whatever – then that ‘ought’ is derived from somewhere other than the sovereign himself. The sovereign cannot create ‘oughtness’ out of nothing in a naked assertion of the will.

    But ‘oughtness’ is a big subject: one of the biggest. I can’t really pretend to answer the question other than flippantly in a blog comment.

  • Svar says:

    Thanks for bearing with me, Zippy.

  • Zippy says:

    No problem; I learn more myself every time we discuss these subjects.

  • […] the situation illustrates the lie built into ‘libertine’ law in the first place.   Without the Christian sovereign’s enforcement, usurious contracts […]

  • […] Sometimes folks get lost in abstract discussions, and it becomes helpful to season it with little storytelling to help get a point across. This seems especially true when it comes to grasping the implications-in-context of incoherent ideas; doubly so in the case of the cherished ideal of political liberty, that is, the doctrine that protecting and advancing freedom is what justifies the exercise of authority.  Against the charge of incoherence it is sometimes countered that liberalism is not self-contradictory because (e.g.) expressly permitting abortion or public drunkenness or prostitution or gay sex parades or murder of the unfit or mass rape of young white girls by vibrant immigrants is merely passive: these are not active exercises of authority, and therefore do not discriminate, etc.  Rights, it is claimed, are simply a passive recognition by the sovereign and in no way involve the sovereign in acts. […]

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