Equality before the law means inequality before the law
February 25, 2018 § 152 Comments
The law which says that the property at 123 Elm Street is owned by Fred applies to everyone: to Fred, to Bob, to trespassers, to thieves, and to tax collectors.
But it certainly doesn’t treat various parties equally. Every law by its very nature discriminates authoritatively. That is what law is: authoritative discrimination. By its nature the law cannot treat everyone equally; it can only treat various controverted desires and choices justly or unjustly, by authoritatively discriminating either justly or unjustly.
And the positive law frequently does itself change, for that matter, through acts of men with authority.
The phrase “equality before the law” is one of those liberal slogans which is either vacuous or incoherent, depending upon how it is interpreted.
Any two people can be equal before the law only to the extent that the law does not touch upon any controversies between them. In other words, people are equals only wherever the law does not apply at all.
Equality before the law is lawlessness.
(Originally a comment here.)
Zippy Catholic 
I understand “equality before the law” to mean that if 789 Oak Street belongs to Wilma, those in authority will enforce her rights as they do Fred’s.
In no sense are Fred and Wilma’s claims under the law equal though. They are in fact entirely distinct.
The motte version of “equality before the law” simply says that the law applies: that Fred and Wilma’s concretely distinct, unequal claims and responsibilities will be enforced in any controversy.
Of course people don’t want “equality before the law” to mean simply that the law applies to all controversies in its jurisdiction. They want it to mean something more; and this impulse is one of the seeds of liberalism, a gateway into the bailey.
What people want is something closer to “the law is no respecter of Persons” – that if a Mayor murders a Commoner the Law will prosecute in the same manner.
But that’s not the same as equality before the law, but is close enough that it sounds good.
TomD:
Equality before the law starts as the banal observation that authority applies – when it does apply, that is, in the kinds of controverted cases a particular authority addresses – to all persons in its jurisdiction; and it ends up with transgender bathroom plasticity.
[…] Source: Zippy Catholic […]
The alternative to equality before the law is inequality before the law, e.g., in the Old South, a white man is allowed to rape a black woman, but a black man is not allowed to rape a white woman. Rejecting this does not require acceptance of transgender bathroom plasticity, because divine law and natural law apply to the real cases and not to the fake ones.
Zippy, would [LarryDickson’s comment] be an example of a strawman argument? Or a red herring? I always seem to get them mixed up.
donalgraeme:
Whatever its label, the general form is “the only conceivable implication of accepting a clear demonstration of the incoherence of liberalism, is something morally abhorrent.”
Larry Dickson:
It’s impossible for me to believe it has escaped your attention that the fake cases have now become the real ones.
I think the most charitable interpretation of “equality before the law” would be something like “violation or enforcement of law x, applies to all persons in similar circumstances”. I couldn’t think of a good formal definition, but I think an example gets the point across: any person who commits murder is punished for the crime of murder. Murder laws apply to all persons. You don’t get a free pass because you’re white, a man, illegal alien, rich, poor, or whatever. I believe this is how most understand “equality before the law”.
Yes, it’s all in the way one frames it which I am sure smacks of nominalism which is per se morally wrong and contrary to the truth.
The degree to which the abstract concept makes sense is inversely related to how seriously we take it qua abstract.
@donalgraeme:
I’m inclined to go with red herring.
Pointing out that some particular inequalities are unjust as an argument against inequality in general is like pointing out that some particular mathematical proofs are wrong as an argument against mathematical proofs in general.
At best, such an observation is off topic, and would only be made by someone who doesn’t understand what is being discussed. The most charitable interpretation is that LarryDickson is genuinely confused, and didn’t do so on purpose.
Urban II:
Yeah, that’s pretty charitable.
I wouldn’t even venture to guess what *most people* mean by “equality before the law.” You might be right, I couldn’t say. What I can say with a fair degree of confidence is that liberal slogans like that appeal to lots and lots of people because they can mean anything they want them to mean. The sky’s the limit.
When Hamilton announced his opposition to inclusion of the Bill of Rights in the federal Constitution (Federalist no. 84), he did so based on the impracticability of giving the much celebrated slogan “freedom of the press” any definition that would not leave the utmost latitude for evasion; and that being the case, its inclusion would afford men so disposed a “colorable pretext” for, ahem, turning it on its head. I’m sure *most people* back then embraced a fairly innocuous definition of “freedom of the press,” “freedom of religion” and so on. But we see what *most people* think they mean now.
Also, LarryDickson’s phrasing seems to suggest that the fundamental problem with the situation he describes is the inequality of it. However, in reality, it’s not that the inequality in the situation is intrinsically evil, but rather it’s rape that is intrinsically evil.
LarryDickson would no doubt be up in arms himself if it were suggested that black men ought to also be allowed to rape, as a remedy to the inequality of the situation. Perhaps this should suggest to him that the fundamental problem with his scenario is not the inequality of it.
JustSomeGuy:
Yep. The law should, generally speaking, punish grave injustice. Introducing equality – “the law should punish grave injustice equally” – does not add anything to the principle other than an open door to mischief, resting on the incoherence of the idea of nondiscriminatory authoritative discrimination.
This is similar to what happens when “live and let live” is turned into a principle of (the just exercise of) authority:
How does one construct a system of government based on authoritarianism and inequality that does not result in tyranny and oppression?
winstonscrooge:
All systems of government are based on authoritarianism and inequality. This is as true of liberal governments as it is of illiberal governments. Authoritative discrimination is a necessary property of every single concrete exercise of government authority, always and without exception.
The difference is that liberal governments have to deny that this is what they do: they are sociopathic in their exercise of discriminating (treats the different controverting parties differently) authority.
That isn’t to say that illiberal governments (correctly categorized as such) are necessarily good simply because they are illiberal. Just because all liberal governments are X doesn’t imply that all illiberal governments are not-X: that isn’t how implication works.
It isn’t that illiberal governments are necessarily good. It is that liberal governments are necessarily – to the extent they embrace liberal principles – incoherent and sociopathic. Liberal governments are necessarily bad.
I ask the same question.
@winstonscrooge:
If you’re asking for a comprehensive, “from the ground up” type of answer, then that’s kind of like asking for a concise description of how to do integral calculus. I can give a pointer or two, but it’s just not the sort of subject that can be exhaustively discussed in a combox.
First off, I would suggest that egalitarianism is not even a coherent concept, and that no society is capable of living up to a self-contradictory standard. I quote Dr. Edward Feser:
I would also suggest that attempting to live up to this impossible standard does not, in fact, succeed in eliminating authority and inequality, but rather perverts them, distorts them, and – while it does not always and necessarily put them at the service of evil – makes them easy to pervert to the purposes of evil.
However, you and I have been down that particular polemical rabbit-hole before, without much progress being made. So I’ll also offer some positive buildup of good ideas, rather than just try to tear down the bad ones.
If you are genuinely interested in understanding how folks like me (and Zippy, I dare to insinuate) think, the first and most important tool I can point you to is teleology.
Teleology is rooted in the classical notion of final cause, also known as a thing’s end. Everything has a nature that is intrinsic to it, cannot be separated from it, and was designed for something. Teleological thinkers put this at the center of their worldview, and make attainment of the end their highest priority. Indeed, serving the attainment of the end is the only source of any kind of value.
Applied specifically to political life, this leads to the insight that the whole of politics – absolutely everything about it – must inevitably become mere empty agitation if it does not aim at something which is not ultimately political.
Modernity in general views government as something neutral – an entity who’s job is just to provide the arena in which man can do as he pleases – rather than an institution who’s job it is to aid every man in attaining his end.
I do not take this view. Politics done right aids and encourages every man in the development and fulfilment of his human nature. This would include (among many other things, but just as an example) laws designed to habituate the citizens to virtuous behaviour – wherein, I dare suggest, man’s end and his happiness both lie (in fact, I would argue that they are one and the same thing, but that’s a whole other conversation). Being genuinely subject to a good leader is a blessing, not a curse, and a good superior serves the good of his subordinates in leading them.
This might sound rather theoretical, utopian, and not practically possible. But I believe it is both logically and historically doable.
If you’re interested enough to do some studying on your own, I’d recommend starting with Aristotle. In order to do politics right, any understanding of political theory and what political life is supposed to be about must be underpinned with an anthropology of individual human nature, and what human life is supposed to be about. Thus, I’d recommend beginning with Aristotle’s Nicomachean Ethics, especially with St. Thomas Aquinas’ commentary on it, and then moving on to Aristotle’s Politics.
Even that won’t give a comprehensive understanding. But it would be the foundations of one.
I don’t think the concept is either vacuous or incoherent. My naive interpretation of the phrase, which jives with every discussion of the concept I ever heard in school, is that it is a slightly more abstract rephrasing of Leviticus 19:15.
The reason it became a slogan during the Enlightenment was because it was a commonly accepted canard at the time that the nobility could get away with murder (eg. Ivan the Terrible beating his son to death in a fit of rage). Of course, that could never happen today *cough* OJ *cough*!
In this country we had a pretty good go at the “common sense” application of that principle for a while, thought I suppose the eventual collapse was inevitable because the formulation (like “freedom of the press” which was mentioned earlier in the thread) works great while everyone is acting reasonable but blows up once one jackass starts testing the corner cases.
If “equality before the law” simply means the fair application of justice then the “equality” part adds no incremental or novel meaning to the principle: it asserts the motte-and-bailey modes of vacuity and positive incoherence.
Relevant:
http://www.amnation.com/vfr/archives/000848.html
“That is what law is: authoritative discrimination. By its nature the law cannot treat everyone equally; it can only treat various controverted desires and choices justly or unjustly, by authoritatively discriminating either justly or unjustly.”
Zippy, also left this comment on the Orthosphere:
Of course the purpose of the law is to [authoritatively] discriminate. The primary purpose of the law – and the primary purpose of the phrase “equality under the law” — is simply to discriminate vs. good and bad behavior *without respect to persons*. Good behavior like marriage for example and bad behavior like homosexual activity. The enacting of the consequences for breaking the law – with mitigating circumstances taken into account — is a related to this and not insignificant, but is not the primary point of talking about “equality under the law”. The laws of men certainly do change, and they will always track with, more or less, (sometimes much less) God’s law which does not.
Nathan A. Rinne:
That reductive view is only the case when “persons” is authoritatively qualified (discriminated) to the point of vacuity. For example, Bob kills Fred: this is murder or not-murder depending upon the status of the two persons, to wit, who is the owner and who is the trespasser.
A characteristically fine answer from JustSomeGuy, but I still fear, even so, that WinstonScrooge might simply come back and pose his question a third time
To forestall this, I would add that the just society we are talking about is simply not the kind of thing that can be designed. WinstonScrooge is effectively demanding that we provide a liberal scheme to bring about an anti-liberal, just society.
For the liberal, a human society is an aggregate of free individuals. For us, it is an organic unity, with its own form and telos. For the liberal, therefore, a liberal society can be designed as a mechanism (leaving aside such issues of incoherence as pointed out in the OP). For us, it is a contradiction in terms to propose mechanical means for bringing about an organic society.
Wrt. “common sense”, I don’t see how this is particular to liberalism. The rules of, say, basketball are not particularly rooted in liberal philosophy but we all understand intuitively that the events of Air Bud would not be allowed in real life.
Likewise, if I tell one of my toddlers not to eat candy before he’s finished his dinner he may indeed try to grab the jar of peanut butter under the pretense that I didn’t specifically disallow him to pig out on *that* before he finished his dinner, but an older child would probably know better than to go fishing for loopholes like that.
Somehow, we went a long time under our deficient political system without eg. groups of atheists pretending to be devil-worshippers and agitating for statues of demons to be erected in public spaces in petulant attempts to get the Ten Commandments removed from the same spaces. The applicable law didn’t change in that time. Why did the results? If the people being governed by the law simply got worse, the law isn’t proximate cause of the problem whatever its defects may be.
rociomatamoros:
I would modify this to say that what he is asking for is a modernist alternative to liberalism.
It isn’t clear that there is such a thing, but even if there were it would likely be an unspeakable horror: it is like asking for a mechanized child-incubating adult-producing alternative to (e.g.) fatherhood.
This is part of why modernists tend to see liberalism as the only acceptable political view.
Relevant:
http://whatswrongwiththeworld.net/2007/11/noble_lies_and_the_superman.html
Peasant:
The idea that people just got worse over generations and their political commitment to liberalism had nothing to do with it is one hypothesis. I’m not sure it is a particularly plausible hypothesis though.
Relevant:
Peasant said: I don’t see how [common sense] is particular to liberalism.
Liberalism is positivistic: it pretends that it has mechanical means for generating the right answer in every case.
In pre-liberal societies, common sense was native, so to speak. In law, for example, a judge had discretionary powers to decide on what a just outcome would be. He could consider mitigating or exacerbating factors, for example, to determine the sentence, rather than having to consult a table of mandatory sentences regardless of the specifics of the case.
The point Zippy/Matt was making at Laurence Auster’s site a decade ago was that liberalism is parasitic on common sense (whereas pre-liberal societies were not). Liberalism cannot tolerate principled exceptions (such as Catholic natural-law arguments), but to avoid the absurdities and horrors that can be derived from its contradictory principles, it furtively opens the back door to common sense from time to time, as an unprincipled exception (to use Auster’s celebrated term).
Today’s “conservatives” are just liberals who leave the back door off the latch. The transgender social-justice warriors are just fellow liberals who have locked the back door and started to pile up all the furniture behind it.
Thanks, Zippy. If it saves time, you can simply assume in future, that I’ve read you entire output here, at W4, the Orthosphere etc., although I doubt I’ve tracked down all your comments as “Matt”. Your “noble lie” concept was an important addition to the armoury.
I enjoyed your grotesque illiberal-modernist child-to-adult incubator. The nearest real-life instance was the fad (when the Walkman came out) for sleep learning – playing instructional tapes through ear-phones while unconscious.
I appreciate your [JustSomeGuy’s] thoughtful response. Thank you.
rociomatamoros:
Thanks very much, though in the future I may still provide links to older stuff for the benefit of other readers.
I don’t think even the relatively innocuous ‘no respecter of Persons’ which really should be instead ‘no respecter of Station‘ insofar as it coherent, is a good idea.
There is such a thing as scandal, and in the secular as well as the ecclesial world it is best avoided. This is not to say that a Duke who murders his servants should not be stopped by the lawful authorities of the King, but it is to say that, for the good of the realm and those immortal souls who live in it, the case should be handled with wisdom and care precisely because he is a Duke.
Rhetocrates:
The problem arises from the notion that legitimate authority belongs to everyone equally and is merely delegated to representatives “hired” by “The People” to do the job. This short-circuits the otherwise natural allocation of responsibility commensurate with authority.
An aristocrat who murders (for example) should in fact be treated differently than a commoner precisely because of his greater station. In the words of the Prophet Uncle Owen, “with great power comes great responsibility”.
“Equality before the law” is wrongheaded all the way down.
Uncle Ben, haha. Wrong sacred mythology.
So would you say then that traditionalists / anti-liberals are not interested in preventing tyranny and oppression or do not think it is possible to design a style of government for this purpose?
winstonscrooge:
Consider the following parallel question:
“So would you say then that traditionalists / anti-liberals are not interested in preventing tyranny and oppression in family life, or do you not think it is possible to design a style of family for this purpose?”
The parallel of this attitude with respect to government with the feminist attitude with respect to marriage is striking.
I also appreciated reading your disagreement with Lydia about affirmative action in that W4 post. The idea that stupid laws which not even the authorities respect much is unjust in and of itself rather than unjust in particular circumstances is one i see most commonly with respect to traffic laws. Those laws bother me to no end, but I try to follow them anyway whenever it is safe to do so (which is most of the time) because it’s not my place to decide these things.
TimFinnegan:
It is possible to view such laws mechanically or as part of the legal substrate of subsidiarity, it seems to me. Modernists tend to view them as mechanical rules: “exceed the speed limit and you deserve a ticket, even if you don’t get one.”
Viewed less mechanistically they make more sense, it seems to me: “exceed the speed limit and local authorities have, at their discretion, the power to convict you of a traffic offense.”
Of course modern authorities themselves tend to take the mechanistic view, unfortunately.
I am working up a post on subsidiarity and gun control which may be pertinent, or at least may hopefully provoke some productive discussion along these lines.
This does seem to be the same view I think. As is relevant to the OP, the obligations of the police and citizens are not the same.
I do think that to exceed the speed limit there needs to be a proportionate reason, and I don’t think “I’d really just like to get where I’m going faster” is a proportionate reason, though “I’m late for work and need to hustle” can be a proportionate reason for a small excess, and there are plenty of other good reasons for exceeding the speed limit to a greater or lesser extent.
The long and short of it is that I don’t think being inconvenienced by certain traffic laws is an objective reason to violate them and that following them is always a matter of prudential judgment, the liciety of which obtains in the evaluation of particular circumstances, not in general.
Oh, man, that ought to fun!
TimFinnegan:
Agreed; and “driving as slow as the speed limit creates a hazard” is among those prudential reasons. The authority to drive itself has certain moral implications.
The FAA makes this explicit for pilots, who are (at least roughly speaking) specifically empowered to disregard the formal rules when choosing an action for safety reasons. Pilots can always be called upon to explain themselves when deviating from the positive law, but the case they have to make is not that they did not violate the rules but that prudence required them to do so for safety.
Agreed, and police ought to be trained to enforce traffic laws like the FAA enforces aviation rules from what it sounds like.
In some States, with regard to speed limits specifically, it does work closer to that.
My friend was driving an RV in California and was being very careful to do slightly less than the posted speed limit. A traffic cop pulled her over and ticketed her for impeding the flow of traffic. (Which she was.)
She and I both view this as an injustice, but for opposite reasons. She sees that she was not violating the positive law, and therefore, mechanically, should not be a candidate for punishment, regardless of the actual effects of the law as posted. I see that she was impeding traffic and should therefore be punished or otherwise have her behaviour modified, but that the understanding of the operation of law instilled both in her and in the agents of the law by our fetishistic positivist approach caused her to misunderstand the law’s purpose and right application.
Modernists tend to view them as mechanical rules:
Leaving it to the discretion of authority leaves room for bias and unjust discrimination. It’s much more comfortable to believe perfectly objective and non-biased algorithms are making the decisions. We want ESPNs K-Zone calling all balls and strikes, not biased human umpires.
@winstonscrooge:
It might aid understanding if we get our definitions straight. If I’m properly understanding you (correct me if I’m wrong), then when you use words like “tyranny and oppression,” you consider the absence of freedom and/or equality to be essential to (or at least a property of) the concept(s) denoted by those words.
If this is the case, then yes, neither am I interested in nor do I think it is possible to design a style of government for the purpose of preventing tyranny and oppression, as you understand them.
However, I also do not think your understanding of tyranny and oppression is accurate (such is the nature of honest disagreement), and a society without tyranny and oppression is very much possible, when those concepts are properly understood.
When I hear the word “tyranny,” the concept that comes into my mind is “enforcement of injustice,” in other words, tyranny is what happens when an authority tries to enshrine in law and enforce in practice something which is intrinsically unjust, e.g., enforcement of Fred’s “right” to murder Bob.
When I look at concepts like freedom and equality, I see nothing intrinsically unjust about their absence.
Let me go back to Zippy’s example: the family. It would be wrong to say that the political community is just like a fractal of the family, because there are (for example) very essential differences between one’s relationship with his father and his relationship with his mayor, yet it makes a good and strong analogy.
In a well functioning family, sons are most definitely subject to their father, and their father uses his authority to promote both the present well-being and future maturation of his sons.
When they’re young and immature, not only does the father generally need to use a firmer hand, but the things he’s trying to teach are rather simple. However, this does not mean that such things are not essential to his sons developing in virtue as they age. For example, there’s a small and simple – yet completely essential – seed of the virtue of prudence in, “Stop it son. It’s dangerous to play with fire, now go sit in time-out.” The son is definitely not equal to his father, and his freedom has certainly been restricted, but can you say that this situation is not nevertheless good for the son? Can you say that he would be better off if his father had tried to treat him freely and equally?
If the son matures as he should, then, as time goes on, the father doesn’t need to take as active a role. He can ease up on his firm hand, and the lessons he needs to teach grow exponentially more nuanced. There’s a vast gulf between a little child being told he needs to stop playing with fire and a young man who needs the finer points of some moral doctrine or other explained to him. If his teenage son is developing into a good man, who keeps the commandments and loves God and neighbour, then the father mostly doesn’t need to intervene in his son’s life. Notice, however, that this is not because the son has become “more free” and/or “more equal.” Rather, it is because the son has – with his father’s help – conditioned his will to be aligned with what is good. The father would still have his work cut out for him if his son had instead become, for example, a womanizer, or an alcoholic, or a thief, or become ensnared by any vice. Freedom is a consequence of having brought one’s will into alignment with the good; freedom is not a good in itself.
The staggering responsibility which a father has to face is not, “how do I make my sons free and equal?” but rather “how do I train my sons to be good and happy men?” Likewise in a political community, the goal of politics is not to make men free and equal, but rather to train them in how to be good and happy men. If politics is successful in this goal, then men will indeed be free, but that is a consequence of having aligned their wills to the good, not a source of goodness.
This is actually why folks like Aristotle and Aquinas dedicated so much time and energy to exploring the topic of how best to educate and train future political leaders. Political leaders have a role towards their people which is heavily analogous to the role fathers have towards their sons. It’s an awesome responsibility (in the classical sense of the term), and not to be taken lightly.
In a very real sense, political leaders are called to love their subjects just as father’s love their sons, and this in no way involves enabling their vice in the name of freedom.
“Leaving it to the discretion of authority leaves room for bias and unjust discrimination.”
The weird part is that that’s persuasive to people while being basically the exact opposite of the truth. Mechanistic rule application leaves no room for nuance and discernment.
Equality before the law also precludes the possibility of mercy as an appropriate outcome in court.
Mechanistic rule application leaves no room for nuance and discernment.
Just had a light-bulb moment reading Patrick’s quote – it finally dawned on me why our Holy Father operates like an authoritarian.
Right, and even in a nation such as the U.S. that has no official aristocracy, the law still ought to take into account ‘station’ when dispensing justice.
For example, it would be absurd for the law not to take into account the ‘station’ of a woman in determining whether a man deserved punishment for sleeping with her. It matters whether the woman was his wife, someone else’s wife, or his mother.
Particulars always matter.
‘Equality before the law’ is simply another weapon by which liberalism deprives social roles of their inherent meanings and dignity: distinctions that should matter are made not to matter.
That piqued my interest. A friend just recently tried to enlist my support for his thesis that affirmative action is unjust in a debate he was having. But I couldn’t bring myself to do it, because I couldn’t see that it was unjust.
So the W4 post is timely for me.
I wonder if you could make an argument that it offends social justice because of the particular context in which it is situated: it perpetuates the idea of systemic white racism against blacks and encourages blacks to regard themselves as victims, etc.
Although I don’t know that I have a good handle on social justice (the real kind, not the fake kind), so I might just be talking out of my hat.
That’s interesting. I looked up how it works in the Texas Traffic Code and it basically says that you can’t impede traffic (in other words, create a hazard) unless you are doing so in compliance with the law. In other words, it’s explicitly against the law to go over the speed limit if doing so is necessary to avoid creating a hazard.
Zippy,
I said: “… is simply to discriminate vs. good and bad behavior *without respect to persons*.”
You reply:
“That reductive view is only the case when “persons” is authoritatively qualified (discriminated) to the point of vacuity. For example, Bob kills Fred: this is murder or not-murder depending upon the status of the two persons, to wit, who is the owner and who is the trespasser.”
As I said on the Orthosphere: “The gymnastics on display here are a sight to behold, and indicate how bad things have gotten. What with both the left’s and now the right’s abuse of language and meaning.”
The example you give has nothing to do with the idea — which is the Lord’s idea — of “equality under the law without respect to persons”. The person owner who kills the trespasser, *no matter who he is or who he is*, is certainly permitted to use appropriate force in self-defense. In some cases that might mean taking the life of the trespasser.
+Nathan
The answer is not to decry “equality under the law”. The only answer is to insist on an interpretation of that which is compatible with the Christian faith, with the God who insists He is no respecter of persons. Again, as regards His own demanding, punishing, rewarding, etc. He insists, quite firmly and repeatedly, that He doesn’t “play favorites” (see Acts 10:34-35, Rom. 2:9-11, I Pet. 1:17, Eph. 6:8-9, Col. 3:25).
I’m going to submit to him, not the absurd ideas on display here.
+Nathan
Nathan A. Rinne:
Apparently your version of “equality under the law” says that legally authoritative discrimination among persons, status, state, and behavior is good when it is good and bad when it is bad.
If observing that this is vacuous/tautological is verbal gymnastics then I’ll go put on a leotard.
Zippy,
I never said that “legally authoritative discrimination” was good. I am saying that the law must be applied with justice and wisdom in the circumstances, introducing forms of mitigation where appropriate.
But that gets away from my main point, which is that, when we really get down to it, we as human beings don’t get to determine what the law *is*. The behaviors it rewards and condemns.
I’ll just point folks here to my original comment again, which says everything that needs to be said, and says things you won’t respond to (because you know I’m right):
Sorry folks, you’ve been taken for a ride. Pay some attention to the Scriptures I cite above. The church submits to her Bridegroom, not the latest and greatest bloggers with half-baked ideas.
+Nathan
Nathan A. Rinne:
Your comments are a hodgepodge, and you might consider putting some effort into grasping the positions of your interlocutors before responding. But that is up to you.
There is natural and Divine law which we do not determine, and positive law which is asserted by men with authority. Examples of the latter include the requirement to drive on the right and a father’s curfew for his children.
But none of that makes the liberal concept of “equality before the law” any less of a motte-and-bailey.
Nathan,
Equality is a simple concept: two things are equal if their qualities are either identical or completely fungible. It’s possible in even two seemingly identical murder cases for one case to deserve the death penalty even more.
Furthermore, if you have true legal equality, you cannot ever show mercy because mercy makes the outcomes decidedly unequal.
That’s not a poor understanding of equality or a worldly one, that’s an innate quality of applying equality to the exercise of judicial authority.
Nobody’s arguing against the proposition that, as you so deftly put it:
Some of us are arguing, however, that the idea of ‘equality before the law’ is an attack of the Enemy and that it operates as a motte and bailey. When unchallenged, the phrase asserts a great leveling action, where aristocrats and peasants both answer to the guillotine. When challenged, it retreats to claim that, “All I meant was laws should be just and well-applied.”
Check your own eye for the beam of liberalism before you accuse any of us of having motes, or God forbid leading souls astray from Holy Mother Church.
Urban II:
As cryptocurrency libertarians are fond of saying, “code is law.”
Nathan:
The important thing to remember when doing gymnastics is to *stay tight*.
I wonder if the vacuity or the incoherence of “equality before the law” is readily apparent in places where real inequality reigns i.e Nazi Germany, Hindu caste system, dhimmi etc.
Contra “Nathan”, I believe that there is also a passage in the Bible which goes “the powers that be are ordained of God.” (Forgive me if I’m not quoting quite correctly.)
It follows, then, that even if human authorities ask us to obey a rule which we don’t like or which doesn’t seem to directly address a divine command (such as “drive on the right” or “you need a permit to carry a weapon”), we are still bound to obey it.
The only exception to this case is if the rule commands us to commit an actual sin (“abort every child after the first one”, “spy on your neighbour and denounce him for spurious reasons to get bonus points”, “worship pagan gods”.) In that case, we are called not to obey, but can still face the penalties that the human authority may choose to enforce (example: Saint Polycarp and a host of other martyrs – if not all of them.)
Somewhat related, I wonder if “strict liability” can ever be moral for an authority to impose by law. If someone cannot be demonstrated to have intended either the violation or another violation that gave rise to the situation, this seems to be unjust on its face because not even God sends people to Hell for evil they caused but had no intention of causing.
Nathan, you argue like a Protestant who assumes that there can be little or nothing of value in Catholic thought.
I also see that you place a “+” sign before your name at the end of each message.
Are you actually a bishop? That would explain much.
Bedarz lliachi:
It seems to me that the predictable “but Nazis!!” response demonstrates rather than undermines the criticism of liberalism as incoherent.
Could I communicate with you [JustSomeGuy] privately?
Nathan seems pretty sure of himself, so far be it from me to offer him any advice. But if I were to do so, I might advise he take a second look at Prov. 11:14 and scriptures like that; keeping always in mind that proof texting out of the Bible is not an especially reliable method of arriving at truth. And the second point would be to bear in mind, as my father use to so eloquently put it, that “you can’t sh*t a sh*tter.” What you have around these parts is a bunch of reformed (or at least semi-reformed) sh*tters. Been there, done that.
As far as “gymnastics” goes, most any philosopher, be (s)he professional or amateur, engages in some degree or other of mental gymnastics. But anyone who knows anything at all about the sport and how it might (metaphorically) relate to its philosophical counterpart wouldn’t be so quick to throw it up in a disparaging way. That he apparently can’t see it doesn’t mean Nathan isn’t performing his own mental gymnastics; he is (because he must), he just isn’t focusing and staying tight in performing his routine.
Zippy,
“Your comments are a hodgepodge, and you might consider putting some effort into grasping the positions of your interlocutors before responding.”
What, specifically, have I said that assures you that I haven’t grasped what you are saying? How do you know I haven’t spent a good long time thinking and reading about this. I have.
“There is natural and Divine law which we do not determine, and positive law which is asserted by men with authority.”
Yes. I know. I’d suggest an observant person could warrant as much from my comments.
Mike T.,
“if you have true legal equality, you cannot ever show mercy because mercy makes the outcomes decidedly unequal.”
Mercy is a different issue. By definition justice and mercy are opposites. No one deserves mercy. A judge may, however, believe that it is wise to show mercy in a certain circumstances. if this is abused greatly, the judge will not be seen as wise.
Rhetocrates
“Nobody’s arguing against the proposition that, as you so deftly put it…”
I never said you were. You missed my point.
“Check your own eye for the beam of liberalism before you accuse any of us of having motes, or God forbid leading souls astray from Holy Mother Church.”
I acknowledge the dangers you speak of. That is why “equality under the law” must be interpreted rightly, as I have attempted to do above.
Bedarz Iliachi,
“I wonder if the vacuity or the incoherence of “equality before the law” is readily apparent in places where real inequality reigns i.e Nazi Germany, Hindu caste system, dhimmi etc.”
There is all kinds of inequality in life, as we can all see. But we are still, to a large degree, in a Christian context — and hence, ought to fear this law which equally judges us.
Professor Q,
“Contra “Nathan”, I believe that there is also a passage in the Bible which goes “the powers that be are ordained of God.” (Forgive me if I’m not quoting quite correctly.)”
There is nothing in anything you wrote that is contra anything I’ve written above. We do obey God rather than men, because the laws of men do not always conform to the eternal law like they should.
rociomatamoros,
“Nathan, you argue like a Protestant who assumes that there can be little or nothing of value in Catholic thought.”
That’s nonsense. I’ve imbibed quite a bit of RC and EO thought, thank you.
And no, I’m not a bishop. Sorry about the “+”
Its a pity that folks here seem unable to find anything valuable about what I’ve had to say here. One would think that this is a fairly obvious point: the law of God, which all human law reflects imperfectly, *is* something. It is a standard that never bends or breaks.
It breaks us or we break it.
+Nathan
Whoops — I meant to leave out the “+” that time. Its a habit, and in my context, it doesn’t mean bishop… : )
Nathan A. Rinne:
And again, your comments are a hodgepodge. Many of the things you say are true, generally delivered in a lecturing tone which suggests that you are under the impression that you are covering some new, non-obvious ground.
But you don’t even address the precise point of contention in the OP.
“[A hodgepodge true or at least partly true stuff], therefore equality under the law is not a motte-and-bailey: it means just what I say it means (“properly interpreted”), nothing more, nothing less” is the generic form of your comments in this thread, as far as I can tell. Non sequitur with a chaser of nominalism.
Nathan:
A simple question: in the phrase “the law applies without respect to persons” what work is “without respect to persons” doing that “the law applies” is not doing? Is it saying that if I punch the pope or a pregnant woman that this is the same as punching my brother? Is it saying that if I am the pope or a pregnant woman, my punching someone else is the same as if I were a layman punching someone else?
@winstonscrooge:
If you’d like, I can be reached at justsomeguy7125 at protonmail dot com (with, obviously, symbols rather than letters, in the relevant positions. For some reason WordPress won’t let you post an e-mail address in a comment straight-up).
Time Finnegan
“Is it saying that if I punch the pope or a pregnant woman that this is the same as punching my brother? ”
This isn’t the context of “equality before the law”. Try privileges of nobility and clergy, the emancipation of Catholics, Jews and blacks.
Tim Finnegan,
So the correct question to ask is if you punching a pregnant woman, is this the same as the Pope kicking her.
So the focus in not on equality among actions but equality among actors.
Punching a man may or may not be same as punching a pregnant woman, but there are no classes among the perpetrators leaving aside juveniles and the insane. They do not belong among equals for obvious reasons.
Zippy,
So one of the leading example of transition from legal equality to legal inequality in modern times is completely irrelevant and forbidden in a discussion about vacuity and incoherence of the concept of legal equality?
Bedarz:
So classes don’t matter when it comes to perpetrators, except when they obviously do matter. There’s no question begging going on there at all.
Tim Finnnegan,
Laws apply only to mentally competent by the very nature of laws. So, animals, juveniles and insane are obviously exempt. This is not question begging.
“But you don’t even address the precise point of contention in the OP.”
That’s because your precise point in the original post seemed to me like it missed the main issue. I thought it was an obvious point and really didn’t get to the meat.
Nathan
TimFinnegan,
“Is it saying that if I punch the pope or a pregnant woman that this is the same as punching my brother? Is it saying that if I am the pope or a pregnant woman, my punching someone else is the same as if I were a layman punching someone else?”
I don’t think that questions like these can’t be answered apart from more context of the situations, and the laws of a given country. In any case, the main point would be that when it comes to the law’s condemnation or approval of behavior, the person does not matter. That, again, is my main point — that is what equality under the law has meant in the past and should continue to mean. I don’t think its a hard principal or necessarily submits to liberalism.
Nathan
Bedarz lliachi:
If liberalism produced Nazism then it is an obvious question begging fallacy to hold up Nazism as a political philosophy than which liberalism is better.
In addition and in general, pointing out that some B is bad in response to a criticism of A is a red herring.
The argument is that liberalism is rationally incoherent. That argument stands or falls on its own merits: its truth or falsity is entirely independent of whether certain examples of illiberal political philosophies (even granting that the examples are illiberal political philosophies) are bad.
Nathan:
Repeating this in pretty much the exact same words you used before is not helpful or clarifying. This could mean a variety of things. It could mean that quite literally it doesn’t matter who gets punished for a crime that I commit. It could mean that a 3 year old with Downs should be punished equally with a healthy adult. It could mean that I can give traffic citations to policemen.
Nathan A. Rinne:
All I can suggest is to try to focus, and see if you can manage to address the actual argument. Or don’t. But don’t expect to be taken seriously when – even by your own account – you are posting walls of text unrelated to the argument in the OP together with gratuitous assertion that the argument in the OP is wrong.
This is true to an extent; we punish the drunk for example), but violates the principle that there are no classes with respect to perpetrators.
Nathan,
Mercy is a different issue. By definition justice and mercy are opposites. No one deserves mercy. A judge may, however, believe that it is wise to show mercy in a certain circumstances. if this is abused greatly, the judge will not be seen as wise.
Mercy is not a different issue. This is precisely what Zippy means when he talks about “unprincipled exceptions.” They’re the “common sense exceptions that everyone just knows should be there” because without them to short circuit the natural conclusion of a given liberal position, mayhem ensues and the position becomes indefensible.
The fact is that if we just take “equality under the law” to its purest conclusion, mercy becomes impossible because it means the judge is not applying the law equally. Yet that is what most people want to happen. No one wants to see a violently abused housewife who kills her abuser in a fit of anger treated the same as a wife who brutally murders a good man so she can run off with his cash, their kids and her new boyfriend.
Equality before the law demands that “murder is murder” irrespective of the facts behind it. A man who kills for pleasure and a man who chases down his child’s rapist and beats him to death are fungible under that principle.
Mike T:
One way to understand the liberal equality imperative is that it requires certain facts to be ignored, or to be made not to matter, when carrying out certain authoritative decisions. Liberalism generally leaves this open-ended (though liberals do tend to make victim-class lists: http://whatswrongwiththeworld.net/2007/05/equality_listmaking_and_degree.html )
The requirement to ignore certain facts in the name of nondiscrimination is deliberately left open ended. This creates a dynamic in which progressive-liberals invoke “equality” to invalidate constraints arising from the traditional moral order while conservative-liberals invoke “common sense” and other unprincipled exceptions in an attempt to rein in the excesses (while cementing in place yesterday’s progressivism) — all without challenging the political equality imperative itself.
Seems to me that one further way the idea and even phrase ‘equality before the law’ is harmful is that it confuses six separate positions about the nature of the law, to wit:
1) The law as written should do little to nothing to distinguish between different citizens, e.g. being unable to hold property because the law won’t allow Fred to throw Bill off his lawn, since Bill has ‘inviolable rights to liberty, fraternity, and equality’ or whatever.
2) The law as written should do little to nothing to take account of extenuating circumstances, e.g. murder is murder is murder, and it doesn’t matter if it was self defense or you’re a serial killer.
3) The law as written should do little or nothing to take into account who the person involved in the crime is, e.g. the Pope or King thieving is just as bad as a plumber stealing a commensurate amount.
4), 5), 6) The same three positions, but change ‘the law as written’ for ‘the judge presiding over the case.’
For what it’s worth, I disagree with all six. They’re all wrong and harmful to the body politic.
Zippy,
while conservative-liberals invoke “common sense” and other unprincipled exceptions
I’ve come to learn that the single greatest problem conservatives have there is that they are extremely conceited about how attached to reality they are. They’re as bad as the “reality-based community” on the other side. The truth is that the average conservative, when pushed to the wall on defending an obviously wrong principle or definition, will pull similar crap to what a progressive will.
Mike T:
Attachment to liberal politics is deep and pervasive. That makes it extraordinarily difficult to keep folks focused enough on criticism of liberalism to even take in the criticism and try to understand it.
Most folks would see right through an argument like “Zoroastrianism is so much nicer than Islam and the Aztec human sacrifice religion, so Zoroastrianism is true: you must accept its premises and doctrines as true.”
But that is because most folks are not deeply committed Zoroastrians.
But that is because most folks are not deeply committed Zoroastrians.
What’s more, most people would also see right through an argument like, “Christianity is so much nicer than Islam and the Aztec human sacrifice religion, so Christianity is true: you must accept its premises and doctrines as true.”
Most Christians would see straight through an argument like that, including most deeply committed Christians. But try and get those same folks to see through liberalism? Forget it.
Zippy,
You say the law is authoritative discrimination. I say the law is the law, period, because good law is rooted in the Divine law which is eternal. How are we to establish who is correct?
Mike T,
Your arguments (https://zippycatholic.wordpress.com/2018/02/25/equality-before-the-law-means-inequality-before-the-law/#comment-51140) fail because there are different degrees of murder which take these things into account.
In today’s world, there is a loud clamoring for the notion of equality which is a lie — they do not want to be equally responsible and accountable under the law.
-Nathan
Nathan A. Rinne:
Yes, every law (whether good laws or bad laws) discriminates authoritatively. That is what laws inherently do, always.
You ask the question as if you have assumed that all authoritative discrimination is bad. That is, you appear to have assumed that liberalism – the absence of authoritative discrimination – is good.
Furthermore, “the law is the law” is an empty statement. Yes of course A is A, by definition.
It is the nature of every law (whether fallible human positive law or infallible Divine law) to make authoritative distinctions – to discriminate. If you think otherwise, feel free to show a counterexample: a law which makes no distinctions and asserts no authority.
Nathan,
My argument doesn’t fail in the least because in both wife examples, the likely charge would be 2nd degree murder.
Even if we stipulate that the categories of murder used under the law are also aligned to natural distinctions that mean something, the range of crimes each covers is much greater than you think.
In other words the law discriminates between different kinds of murderers and, even among those convicted of some kind of murder, treats them differently based on their station and other circumstances.
At the end of the day the law – when it acts – treats no two people identically. In the limit, if we find a case where everyone is being treated the same by the law the law is not acting at all.
As I said in the OP, “equality before the law” is, literally, lawlessness – the absence of operation of the law.
Nathan:
Oh boy.
Yes, the law is the law, government is government, football is football, little green aliens are little green aliens, mathematics is mathematics, Monopoly is Monopoly, a hand is a hand, a foot is a foot, a monkey is a monkey, a ship is a ship, a mountain is a mountain, the Bible is the Bible, rivers are rivers, continents are continents, and on and on. Surely you can see that the problem with the statement is that it tells us *nothing* about about what the thing in question is or what it does?
The law is the law. The law is also a set of buckets with prescribed ranges of actions enforcing authorities may take. The fun part is making sure the enforcing authorities put messy human behaviors into the right buckets.
Mike T,
That’s too much information. As long as I can keep my head clear of all the ugly details, I can keep clinging to my sacred cows. If I close my eyes, you can’t see me.
Hey now. Mathematics are mathematics, because the rules of grammar are the rules of grammar.
Rhetocrates:
Well, shoot! I meant “mathematics” *as a system*. In which case, perhaps I should have capitalized, as in a proper name? How about “arithmetic is arithmetic” instead.
Hey all,
Yes, the law is the law period.
*Rhetoric* to make a point which, as best I can tell, continues to escape you all.
I’m putting the focus on what the law *is*. Zippy is right when he says “It is the nature of every law (whether fallible human positive law or infallible Divine law) to make authoritative distinctions”. Right — the law *is* statements which discriminate *not between persons* but between good and bad behaviors of persons in specific contexts (for example, discerning what murder is, vs. killing in war).
Period.
That’s what I don’t think you are getting. If you don’t start here, you have nothing.
Nothing.
This is what is ultimately important about the law. Yes, we need to talk about contexts and circumstances which are increasingly complex and demand that more positive law (hopefully more in line than not with The Law) be written. Yes, not every conceivable circumstance can be foreseen nor necessarily should be introduced into the positive law once seen. Yes, circumstances in this or that case will demand that justice and wisdom mitigate when it comes to the punishment that the law dishes out — but even then, we, mirroring God, should be “no respecter of persons”.
If that is liberalism, than God is a liberal.
BTW, so all know here, I am an old school confessional Lutheran who makes every effort to fight theologically liberal trends (see e.g. https://twitter.com/NathanRinne/status/948197417274527744). Also, someone who has fought postmodernism in the academic library world (https://reliablesourcessite.wordpress.com/2017/02/15/my-critiques-of-the-idea-that-authority-is-constructed-and-contextual/)
Mike T, lets break your concrete examples down….
“The fact is that if we just take “equality under the law” to its purest conclusion, mercy becomes impossible because it means the judge is not applying the law equally.”
With God’s law, all have sinned and fall short. No one who attempts to justify himself by his deeds shall stand (Rom. 3:20,21) as the law should cause us all to stand silent before our Judge. Those who are saved are saved not because they are good or deserve mercy, but because they receive the mercy by faith which God freely gives to all in Christ (and yes, this faith must be demonstrated in our works, as in the final judgement we who are justified by this faith will be judged before the eyes of all in accordance with our deeds).
“….Yet that is what most people want to happen. No one wants to see a violently abused housewife who kills her abuser in a fit of anger treated the same as a wife who brutally murders a good man so she can run off with his cash, their kids and her new boyfriend.”
I said your example failed and you said that “My argument doesn’t fail in the least because in both wife examples, the likely charge would be 2nd degree murder.” In the example of the abused housewife, that would be 3rd degree murder where it seems like the other one involved premeditation or planning (2nd degree). In the case that these are both crimes of passion (3rd degree), here the sentences would not be the same in any case because of the added criminal issue of theft, adultery, etc (if we are going to stick with God’s law — which we should).
“Equality before the law demands that “murder is murder” irrespective of the facts behind it. A man who kills for pleasure and a man who chases down his child’s rapist and beats him to death are fungible under that principle.”
Again, the example of a man who chases down his child’ rapist can conceivably be understood to be passion murder (even if it is extended over a longer period of time), and would likely get a lesser sentence because of this. In any case, vigilante justice should always be discouraged in a society.
+Nathan
Nathan A. Rinne:
Welcome to a place where pounding the table and asserting tautologies works against you, rhetorically speaking.
Its too bad it was necessary. : )
+Nathan
Shoot — I keep adding the “+”, offending my EO brothers. My sincere apologies.
Nathan A. Rinne:
What is necessary – at least if you want to be taken seriously around here – is actual comprehension and an actual argument, as opposed to table-pounding tautologies.
You’ve already admitted that it is good and necessary for the law to discriminate based on station and circumstances — that behavior is defined with reference to the facts of station and circumstances.
I’m an essentialist, so I recognize that some circumstances are essential and some are accidental. So you could try to reframe equality as meaning that only essential facts should be treated as essential.
But the problem with intellectual honesty and candor is that it exposes the question begging nature of the whole liberal project: it shows liberal denial of privilege and authority to be an utterly empty tautology, a motte from which Current Year questions in the bailey can be begged.
I think you’re close, but you still have a small ways to go. Any exercise of the law – that is, any actualization of the law, or put another way the most real sense of the law – just is the exercise of authority to distinguish between two parties in a conflict. That which is written is abstracted from the specific persons in order to help form judgment in a general case, but any actual application of the law necessitates a realization through specifics.
No, no, no, and in the utmost no! That way lies Hell on Earth! and it looks like The Trial. Positive law by its very nature, as necessarily abstract, cannot fully apply to specific human circumstances. Positive law will never, can never substitute for human judgment.
Do your soul a favour and stop putting words in God’s mouth. It was perilous when Milton did it and it’s ever-more-so now.
A simple inspection will show God’s Law is not positive law. I leave Job and the Book of Wisdom as an exercise for the reader.
Zippy,
Sincere thanks for continuing the dialogue. I think we do learn best sometimes by stating what we know (or think we know) most strongly and learning from those willing to engage — and if need be, correct — us.
“You’ve already admitted that it is good and necessary for the law to discriminate based on station and circumstances — that behavior is defined with reference to the facts of station and circumstances.”
Re: station, have I really done this? I don’t think I have, wanting, of course, to have the law apply equally to the persons high and low within one’s jurisdiction (often one’s nation). The Hebrew translates not to kill, but murder — and that word brings with it specific connotations. Its not murder when a soldier kills. This is similar to how the word “adultery” binds us — sexual activity itself is very good of course.
I’d by the way, argue that essentialism is unavoidable. Insofar as a person thinks we can have any knowledge of those who’ve written things down in the past, its because there are things in the world — that our words connect with — that are trans-cultural and trans-historical.
Rhetocrates:
First of all, I am sympathetic with your perspective, like when you say “That which is written is abstracted from the specific persons in order to help form judgment in a general case,” but on the other hand, God re-published His commandments on tablets of stone, when they had faded from the human heart (where we are born with this knowledge but it gets suppressed in this or that fashion — see Romans 1).
“No, no, no, and in the utmost no! That way lies Hell on Earth! and it looks like The Trial. Positive law by its very nature, as necessarily abstract, cannot fully apply to specific human circumstances. Positive law will never, can never substitute for human judgment.”
Please note the two sentences that followed the one that you quoted. I get your point, but I think its also wrong to say that concrete circumstances should never cause us to write more positive law for convenience. Not to say that this process could not go wrong, but even here, positive law can be revisited as new situations arise.
Nevertheless, things like the Decalogue are eternal.
+Nathan
Nathan A. Rinne:
Yes you have, and in any case attempting to avoid doing so is rationally incoherent.
Behaviors, as I pointed out, are defined with respect to station. For example the behaviors “theft” and “trespass” are defined with respect to the station of the persons, that is, owner or not-owner. The behavior “murder” does not obtain when the killer occupies the station of sovereign executioner and the victim is a condemned man. Etc, etc.
The difference between your expressed view and mine is not that you don’t support authoritative discrimination based on station, whereas I do. The difference is that you (qua liberal) support discrimination based on station sociopathically, while pretending that categorical nondiscrimination based on station is rationally coherent (it isn’t) and is the desirable state of affairs (which makes no sense because it attempts to define an incoherent idea as the desired state of affairs).
Nathan,
If you like, you can use [blockquote] tags (but with the normal HTML brackets instead of [ and ] to mark off quotations so they’re not missed.
Anyhow, moving on.
If you think these two points are opposed, you have misunderstood me. Positive law of course exists, furthermore the existence of good positive law is a human good, which is why we create it in the first place.
But positive law necessarily exists as a guide and aid for human wisdom, not a substitute. Even the Law given by God must be interpreted to apply to specifics – is this murder? is this adultery? is this theft?
This critique is very similar to that of writing you’d see in the Phaedrus, if that helps.
Here we are in agreement. Positive law is properly a tool for the flourishing of human societies, so of course there is a proper way to apply it. There are also many ways to mis-apply it that result in human suffering, and one of those ways is to fetishize it, believe it is more than just a guide to human wisdom, and proliferate it beyond the bounds of prudence.
This is all a tangent to the main point, of course, but one I think it very important to get clear.
Nathan,
With God’s law, all have sinned and fall short. No one who attempts to justify himself by his deeds shall stand (Rom. 3:20,21) as the law should cause us all to stand silent before our Judge. Those who are saved are saved not because they are good or deserve mercy, but because they receive the mercy by faith which God freely gives to all in Christ (and yes, this faith must be demonstrated in our works, as in the final judgement we who are justified by this faith will be judged before the eyes of all in accordance with our deeds).
Not relevant when discussing a court of law, particularly the philosophical matter of equality before it.
I said your example failed and you said that “My argument doesn’t fail in the least because in both wife examples, the likely charge would be 2nd degree murder.” In the example of the abused housewife, that would be 3rd degree murder where it seems like the other one involved premeditation or planning (2nd degree). In the case that these are both crimes of passion (3rd degree), here the sentences would not be the same in any case because of the added criminal issue of theft, adultery, etc (if we are going to stick with God’s law — which we should).
This is a good summary that shows why your argument is wrong. A crime of passion is most certainly a large subset of 2nd degree murder, not manslaughter. So yes, the abused housewife can be quite easily charged with and convicted of 2nd degree murder.
So again, under the law as it actually is, there are a host of quite varied circumstances that can have the same label. Equality under the law would mean ignoring those differences and not showing mercy to anyone of them.
Nathan,
I’m a Protestant also, and God’s grace is a perfect example of Zippy’s point. It is those who are under grace who are exempt from the law. There is no equality there, especially to one such as you who no doubt believes in single predestination. True equality would be either grace or condemnation for all. Catholic, Lutheran and (most) Evangelical theology is decidedly against the notion that God treats everyone equally because they all teach that by God’s grace some escape the consequences of the law.
Is this a variation of “sin and sin boldly?”
Mike T,
“So again, under the law as it actually is, there are a host of quite varied circumstances that can have the same label. Equality under the law would mean ignoring those differences and not showing mercy to anyone of them.”
I see that in some situations, any premeditative aspect might make it quality as murder in the second degree. In any case, let me make sure I understand what you are saying. You are saying that because particular circumstances are always involved in determining how the crime is classified, this is inevitably going to mean that there is no real thing we can call equality of the law: people will and must find things like, their class, gender, and race mattering (because if it didn’t, *the good kind of discrimination* that was occurring [there are all kinds of good discrimination that we use daily] would not be happening)?
-Nathan
Mike T,
No Christian — or anyone else for that matter — is ever exempt from the law. We are freed from the Law’s accusation, because of the absolution given by Christ who fulfilled the Law on our behalf. Nevertheless we walk in the law, even as we do not live by it.
-Nathan
That was a bad choice of words. I meant to say exempt from the consequences of the law.
Rhetocrates,
“Even the Law given by God must be interpreted to apply to specifics – is this murder? is this adultery? is this theft?”
Yes, but it appears to me that what class, race, or sex a person is, for example, is largely or almost entirely (perhaps there are laws about women and in utero babies that could not apply to men – this is, of course, an entirely natural exception) irrelevant to these questions, which yes, occur in specific circumstances that need to be looked at, with the proper distinctions noted. As regarding questions dealing with rulers and soldiers and murder, that is different because the idea of “murder” specifically has in it an exclusion of the killing in war, which also takes for granted government authorities that declare war and also takes for granted nations that exist vis a vis other [enemy] nations. And of course this has to do with what “adultery” signifies as well – being married to someone of the opposite sex puts you in a special category which is relevant to the word “adultery”. And… something similar can be said about taxes vis a vis theft. Even here though, in the West, we are a nation of laws (which, in my mind, goes hand in hand with the idea of equality under the law) – even our rulers — and this comes right from the Bible: think of Namaan and his vineyard.
Zippy,
“Behaviors, as I pointed out, are defined with respect to station. For example the behaviors “theft” and “trespass” are defined with respect to the station of the persons, that is, owner or not-owner.”
Sure, but all of us have many of these station and we all understand this. I, for example, wear the hat of father, child, brother, owner, renter, ruler, ruled, citizen, married, etc. I went into some detail with Rhetocrates above as regards my position.
“The difference between your expressed view and mine is not that you don’t support authoritative discrimination based on station, whereas I do. The difference is that you (qua liberal) support discrimination based on station sociopathically, while pretending that categorical nondiscrimination based on station is rationally coherent (it isn’t) and is the desirable state of affairs (which makes no sense because it attempts to define an incoherent idea as the desired state of affairs).”
First of all, I hardly think that anyone reading this present response is going to find anything remotely incoherent about it. If you would be so kind though, please point out any contradictions that you see. Second, perhaps there is a more charitable and less inflammatory way to look at what I’ve said here other than the word sociopathic?
I want to put the focus on what the law is and by virtue of that what is the same for everyone – while not disregarding the matters of context that words like “murder” and “theft” and “adultery” inevitably point us towards — while it appears to me that you would rather talk about and put the focus on exceptions.
Which, as they say, makes bad law.
-Nathan
Mike T,
“There is no equality there, especially to one such as you who no doubt believes in single predestination.”
I do believe in this, but that does not discount what is said elsewhere in the Scriptures either (this is a mystery, and for me it helps to think about God as existing outside of space and time, and hence seeing past, present, and future all at once). God is, after all, hanging on the cross for us for a good reason.
As the Lutheran Confessions of 1580 assert:
But it [the true judgment concerning predestination] must be learned alone from the holy Gospel concerning Christ, in which it is clearly testified that God hath concluded them all in unbelief, that He might have mercy upon all, and that He is not willing that any should perish, but that all should come to repentance and believe in the Lord Christ. Rom. 11:32; Ezek. 18:23; 33:11; 2 Pet. 3:9; 1 John 2:2.
-Nathan
Nathan A. Rinne:
As expected, you keep moving the goal posts: you’ve retreated from the (bailey) idea that discrimination based on station is always wrong to the (motte) idea that discrimination based on station is right when it is right and wrong when it is wrong.
Nobody has contended that all kinds of discrimination under all circumstances are always morally correct. What has been contended is that equality before the law – the idea that the law should not discriminate based on station – is something that liberals only pretend to believe. Equality before the law is an incoherent motte and bailey doctrine, and your own comments demonstrate this fact.
I should clarify this:
It isn’t strictly a pretense of belief by liberals: that is, liberals really do sincerely believe in equality before the law.
The problem though is that the very idea of equality before the law is incoherent. Incoherent beliefs have the peculiar property (via the principle of explosion) that they can in principle imply anything or its opposite. Thus the liberal appeal to “everyone knows this” or “common sense” unprincipled exceptions: the incoherent doctrine salted with unprincipled exceptions simply confirms, to the individual liberal, what he already believes.
Relevant:
Nathan A. Rinne:
You might enjoy some of our discussions of free speech, e.g.:
Zippy:
Yes, that’s exactly right. It’s a great insight, and key to beginning to understand the liberal mindset.
I was reading one of the Systematic Theologies (one of the newer ones, probably Geisler) ten or twelve years ago, and the author brought that out, but not nearly as well as you do. Prior to that I had been of the opinion that liberals are insincere in their beliefs, and would answer them with statements like ‘if you really believed that [that we shouldn’t legislate morality, for example] then you wouldn’t do it, or advocate for it.’ But it isn’t that; it is that it is impossible for them to hold to their own ‘standards’, because in reality land *someone’s* morality is going to be enacted and enforced as the law.
I edited the quotation down to remove the extraneous bits for easier reading; please let me know if in my editorial role I lost something essential to your point.
You are deceived by appearances. God’s law given directly from God’s mouth through his prophet Moses has numerous distinctions of person, sex, station, class, and race. For example, the Levites are to live quite differently from the rest of the Israelites precisely because of their station. Again, peregrines and aliens are to be treated differently from the Hebrews themselves (and in some cases treated differently from one another). The Judges are given various prerogatives and duties because of their station, and later the Kings, starting with Saul, are as well. Indeed, the whole Israelite people are the specific people to whom the Law is given and who are to uphold it – not the Gentiles, to whom it does not apply. (I am speaking, of course, of the Mosaic law, not the Natural law, which applies to all and sundry.)
“But,” you may say, “that’s not what I mean. I mean that when a man sins against the law, the same punishment should be applied to him as to anyone who breaks that law, regardless of whether he is peasant or King, man or woman, bishop or layman.”
Here, too, you would be incorrect, which numerous Biblical examples show. When Saul, King of the Israelites by virtue of the charism given him by God, turns away from his purpose, the whole realm suffers God’s punishment of division and destruction. The Babylonian exile comes upon the Jews in large part because of the sins of Solomon and his sons. When David sins by murdering Uriah and taking Bathsheba to wife, Nathan the prophet appears to him personally with a parable, and it is only by David’s abject repentance which we read of in the psalms that the house of David is spared, even though the son borne him by Bathsheba must still die. And again, it is for the sins of the rulers of Israel that Jeremiah tells them that the Lord will withold the rains until they repent.
All these examples show that your station does matter to the Lord in meting out his justice; it matters very much indeed. Those men who went with Gideon but turned back are only lightly punished, or not punished at all, for their weakness. But the great men of Israel – the great men of all nations, in fact – are held to a higher standard by God, and their failings affect their whole people for generations to come.
Instead of the law being no respecter of persons, then, we should say that holding a higher station holds you to a higher standard of conduct, and never a lower. Far from letting a duke or King get away with crime, he should be punished more severely than a man of lower station, for a crime in such a man is more heinous by virtue of his station.
Replying for Zippy here, which is above my station, but he’ll correct me if I’m wrong.
Sociopathic means here not something inflammatory and certainly not something out of the DSM, but has a technical meaning regarding the division between statement and action. To say someone or something is sociopathic here is to say that he says one thing with specific denotations, and clearly believes that thing, and yet acts in a manner inconsistent with that belief – often because that belief is itself incoherent and therefore incapable of actually directing behaviour.
It’s a pointing to the difference between what Navrozov calls ‘verbal intelligence’ vs. ‘behavioural intelligence’, for example.
It may very well be a wounding accusation, because no man likes to be told he’s fooling himself. But it’s not an attack.
Rhetocrates:
I use the term sociopathic mainly in reference to liberalism, as distinct from persons with liberal commitments (liberals). There are plenty of “normal Joe”, non-sociopaths with liberal commitments.
Liberalism is a particular thing in its own right which transcends the collected individuals who currently have commitments to it. Other examples of things which transcend (do not reduce to nothing but) individual members or adherents include the Catholic Church, Islam, the Boy Scouts of America, Nazism, or even (say) organic farming. Modern people tend to reduce everything to the individual or to mere collections of individuals despite the manifest insanity of that sort of reductionism. Wholes are greater than the sum of their parts, and the things I write can’t really be understood without understanding that as a prerequisite.
Liberalism is sociopathic for the reasons you state, and also because it exhibits other clearly sociopathic (and/or psychopathic, but liberalism is a social entity operating on a social scale not an individual psyche) traits: zero empathy for anything other than itself, an incapacity to tell the difference between right and wrong, extreme antisocial behavior, instability, aggression, disconnect from reality, doubling down even after it has been demonstrated to be acting irrationally, etc. etc. Liberalism is always pretending to be something it is not (e.g. anti-authoritarian) as a means of ingratiating itself to “friends” — friends whom it will (and often does) betray in a heartbeat.
So anyway when I use the term ‘sociopathic’ to describe liberalism that is the sort of thing I mean; and the thing to which I am referring is liberalism and its doctrines, not individual persons (who are as varied as individual persons tend to be).
In fact the variance in individual persons is part of what gives rise to liberalism’s overall structure as something real situated in reality, which I have discussed before e.g. here:
https://zippycatholic.wordpress.com/2016/09/03/antigravity-jack-boots/
Even if it were an attack, I don’t see how Nathan can consider it any less charitable or more inflammatory than some of his own choice words directed at his interlocutors up thread. I mean, saying our ideas about the topic at hand are “absurd” isn’t exactly complimentary, after all.
**None of the above is intended to discourage your choice of descriptives, Nathan. If you think our ideas are absurd, or a particularly disingenuous form of verbal gymnastics, etc., then of course you ought to say so. I doubt that anyone here is very much offended by it.
T. Morris,
“I mean, saying our ideas about the topic at hand are “absurd” isn’t exactly complimentary, after all.”
Fair enough. “Novel” would have perhaps been better… : )
In all seriousness, will be back here when I get a moment to give the responses the attention they deserve. Thanks for the convo.
-Nathan
Rhetocrates,
“But,” you may say, “that’s not what I mean. I mean that when a man sins against the law, the same punishment should be applied to him as to anyone who breaks that law, regardless of whether he is peasant or King, man or woman, bishop or layman.”
Good answers in that post above that contains this quote (which yes, I think applies to the way I have been thinking). You are speaking my language. Even the book of James says that those who desire to be teachers will be head to a stricter standard. Of course, there, that is true of *anyone equally* who *desires* to be a teacher.
As regards the examples of the Kings of Israel’s being held to a higher standard, I wonder about this: because of the design of God’s creation — because of the way that it is constructed to function — the normal consequences of the sins of leaders will not just be any “butterfly effect” but will always be amplified. As such, because of the increased damage that accompanies their sinful actions, it only makes sense that they, like teachers, are held to a higher standard, and that the rewards and punishment for their behavior will reflect that.
Zippy,
“It isn’t strictly a pretense of belief by liberals: that is, liberals really do sincerely believe in equality before the law.”
Right. But since they don’t believe in God’s eternal, unchanging law which applies trans-culturally and trans-historically, they will contradict themselves all the time as you say. I agree. But I’m not them: even though, in general, I would like people to be free to speak their minds as much as they like (would that they’d have some wisdom about knowing when to shut up though, right?), I believe, for instance, that ideally there should be blasphemy laws in our country and that we should enforce them. That is not looking likely these days though…
-Nathan
Nathan A. Rinne:
That’s what right-liberals always say, as they rush to the defense of yesterday’s liberalism.
I think there may be communication difficulties regarding the word liberal. Coming from a more-usual conservative viewpoint, traditionalists of all stripes aren’t used to thinking of themselves as liberals; that’s a label for the other guys, the Left-side guys.
But Zippy has at length made the very strong case that the entire modern world is utterly steeped in liberalism, properly understood as an incoherent philosophical claim about the nature of authority and governance.
So around here it isn’t a claim that you have Leftist commitments.Many liberals are very attracted to tradition or other unprincipled exceptions to liberalism. Instead it means that you are being blinded in some respect from a truly traditional understanding of the nature of authority and governance by a philosophical mindworm, likely implanted very deep at a very young age.
To make the point clear, other liberals of note would be Mencius Moldbug, Pope Paul VI, John Rawls, Adam Smith, and Martin Luther.
Rhetocrates,
John Rawls and Adam Smith to be sure. Martin Luther is humerous though. You clearly haven’t read much Martin Luther.
Zippy:
“As expected, you keep moving the goal posts: you’ve retreated from the (bailey) idea that discrimination based on station is always wrong to the (motte) idea that discrimination based on station is right when it is right and wrong when it is wrong.”
Again, you are hardly being fair in representing me, you propagator of absurd and novel dogmas. : )
In all seriousness, the increased nuance you see from me is just me learning how you think (which I am not convinced is all wrong by any means!) and responding to it appropriately. I continue to have no doubts that my general mindset about this matter: “the law is the law, period” and therefore there is most definitely something we should call “equality under the law” is correct. I am now only learning how to effectively communicate that truth to persons like yourself (probably not you anymore). This doesn’t mean I am not really eager to listen to folks like you and trying to find some semblance of rationality in your own thought – I really am.
And God help me, if I am wrong, I am sure that He will not keep the grace of discovery and enlightenment from me.
“Liberalism is sociopathic for the reasons you state, and also because it exhibits other clearly sociopathic (and/or psychopathic, but liberalism is a social entity operating on a social scale not an individual psyche) traits: zero empathy for anything other than itself, an incapacity to tell the difference between right and wrong, extreme antisocial behavior, instability, aggression, disconnect from reality, doubling down even after it has been demonstrated to be acting irrationally, etc. etc. Liberalism is always pretending to be something it is not (e.g. anti-authoritarian) as a means of ingratiating itself to “friends” — friends whom it will (and often does) betray in a heartbeat.
So anyway when I use the term ‘sociopathic’ to describe liberalism that is the sort of thing I mean; and the thing to which I am referring is liberalism and its doctrines, not individual persons (who are as varied as individual persons tend to be).”
You know, I am liberal — though in the right way. In addition to “Equality under the law,” I’ll reclaim that word from my enemies (yes, I know you won’t) as well:
“Marked by generosity”, or “Given or provided in a generous and openhanded way” — look at how generous I’ve been with you guys! : )
And you know what? you don’t even need to be a Christian to realize that God has liberal qualities and that that is where our notions of progress come from….
And, oh, also — He’s not mocked.
I look forward to your next post:
“No respecter of persons” and “does not play favorites” means “respecter of persons” and “plays favorites”.
+Nathan
“+” — Sigh. My sincere apologies.
And Zippy — thanks for allowing the discussion, putting up with me on your blog. I realize you that probably won’t last much longer, but I have found it enlightening.
-Nathan
I have read Luther’s Sola Fide and his Ninety-Five Theses, as well as Jean Calvin’s Institutes of the Christian Religion. The works of both men are shot through with liberalism. Your lack of recognition for this betrays a lack of understanding of the meaning of the term.
Consider that we’re using the term in a somewhat idiosyncratic way, but that we also claim that it is in fact not idiosyncratic, but points to the true root of a real phenomenon, and only looks strange to people who are still blinded by that very phenomenon to the causes of it.
Liberalism is, in essence, insofar as it can be said to even have an essence, being an abject contradiction in terms, a rebellion against authority qua authority. It comes in various trappings – freedom, equality, brotherhood – but is always at base just that very thing.
I think it’s true that Luther is significantly less infected by liberalism than, say, Erasmus, but he’s by no means free of the taint.
Nathan A. Rinne:
OK, but understand that when you use the term to refer to something other than the political philosophy you are changing the subject.
Relevant:
Not only relevant, but a great summation of the blog in general that might warrant a “Read this first” prominently displayed for newcomers.
Rhetocrates,
“I have read Luther’s Sola Fide and his Ninety-Five Theses…”
I am not aware of any work by Luther titled “Sola Fide”. Can I get you to take a gander at this?: http://www.patheos.com/blogs/justandsinner/luthers-antinomian-disputations-dummies-1-5-natural-law/
-Nathan
Apologies. That’s what happens when I respond while sleep-deprived. What I’m remembering is a collection of his sermons and letters on the subject. Unfortunately I don’t remember the name of the collection (it might be Sola Fide or it might not) and the book is in Switzerland on my father-in-law’s shelf.
As for the link, I’ll put it on my list, but any time I have for religious reading is devoted to the saints and the Church fathers during Lent.
Make no mistake; I freely admit that Luther is very conservative, even reactionary, by modern standards. But the poison of liberalism that has taken over the West is quite old – older even than Christianity itself.
Rhetocrates,
“But the poison of liberalism that has taken over the West is quite old – older even than Christianity itself.”
And you are utterly convinced that a statement like “equality under the law” nicely encompasses the spirit of this satanic and rather timeless liberalism?
How do you balance your concern here with what Nancy Pearcey contends, namely “We should never defend Christianity by saying it is traditional. From the beginning, it has stood against the traditions of its day” (70, Love Thy Body).
Or do you?
Today, I launched a post which contained, among much else, this line: “Both the increasingly pagan right and the increasingly fake-Christian left (Fully secular? Please….) are loathe to recognize and deal with the fact that notions of progress come from the Bible, problematizing what is ‘natural’ or ‘ideal’ as the case may be.”
-Nathan
What do you make of this short exchange?:
Liberalism at work? Or no?
-Nathan
…sorry, click on the tweet and then click on “Show more replies” to see the exchange.
-Nathan
are loathe to recognize and deal with the fact that notions of progress come from the Bible
The last 300 years of “progress” in a nutshell: we have built a far kinder and gentler legal system, outlawed torture and other advances. Also, we have created an industrial scale extermination of the unborn and quite nearly brought something new under the sun in terms of how horrific we have made warfare on mankind.
If that is progress, we need a new flood.
Mike T,
Its a mixed bag, to be sure.
I credit the good to the Lord, the bad to man, as always.
As for Pinker-esque approaches we can just say this: giving credit to the wrong Father again, I see….
And really, rest assured about the need for judgement. You do believe in the second coming, right?
Lift up your heads.
-Nathan
Nathan,
The level of sin on Earth is probably about constant. It just manifests in different ways at different times. Progress is an illusion. It is about as real as the sense of going somewhere that a hamster has on a wheel.
Equality before the law is applied more procedurally rather than substantively. In your example, if Fred and Wilma both lay claim to 123 Rocky Road, Bedrock, the law will (in theory, anyway) provide both the opportunity to establish their respective claims. Depending on who took what actions (whether Fred or Wilma recorded their conveyances, who recorded first, etc.) one or the other may get a procedural advantage (e.g., a rebuttable presumption n their favor), but that advantage would have been equally available, or at least be presumed to have been available to either. In other words, Fred would not get the advantage because he is Fred, but because he was the prior record owner.
Whether you are The Donald or just some petty criminal off the street, you both have certain procedural rights to which you are entitled if accused of the same crime (although the effective exercise of them may differ).
Even if we water down “equality before the law” such that all it implies is neutral procedures, there are no such things as neutral procedures.
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Procedures can be neutral; the persons who enforce/execute them are not. As a theory, equality before the law can exist. But because laws must be executed by persons who cannot be neutral, equality before the law cannot exist in practice.
Procedures are not value-neutral. They require a certain way of doing things to the exclusion of other ways. They do so for opinionated, authoritative reasons.