April 14, 2018 § 26 Comments
If the positive law of some governing body expressly authorized X yesterday, and then that same body criminalizes X tomorrow, it is unjust – with caveats – for that body to punish someone tomorrow for having already done X yesterday. This has to do with the just exercise of authority, not the justice of the action in question: when a particular authority punishes an action which it explicitly authorized this (the punishment) is an unjust act by that authority. If I authorized you to shoot the dog it would be unjust for me to punish you for having already shot the dog, though it is not unjust for me to withdraw authorization.
This principle against ex post facto law has limits. Punishment might not be an unjust act by a different, especially a higher, authority: God punishing people for doing things which are supposedly “authorized1” by the positive law is not unjust, for example. And in general a different authority may be justified in punishing actions which it did not authorize, even though some other authority attempted to “authorize” it.
This is especially true when people ought to know better. Importantly, the fact that some authority has not said anything about X does not constitute authorization by that authority to do X. In this case no ex post facto prohibition applies as a moral constraint on the authority to punish. And I would not be too quick to dismiss the notion that mothers mostly ought to know better than to kill their own children, no matter what pressures they are under.
Modern people with their politically liberal commitments may find this difficult to swallow, but the fact that nobody in authority has expressly forbidden doing X does not mean that you are authorized (have the authority) to do X. The fact that there is no positive law prohibiting you from doing X doesn’t grant you a right to do X, for all possible X: “right” is just a different term for authority.
When we do something which we have no right to do, sometimes there are consequences, including punishment of some sort by someone in authority. And the fact that someone – even someone in authority – told you that you were authorized to do something evil does not confer actual authorization: it doesn’t make you not guilty, it just makes the person(s) who attempted to authorize evil also guilty.
The fact that someone in authority egged you on to commit murder may be a mitigating factor in deciding upon a just punishment. But it can never be entirely exculpatory. We are responsible for our own choices2, and that includes being sure that we have the authority to do the things we choose to do.
 I use scare quotes around “authorize” because in fact nobody has the capacity to authorize or require doing evil.
 Here I leave out the mentally ill and otherwise truly incompetent.
April 12, 2018 § 29 Comments
There is an enormous amount of room between the death penalty and, not only no punishment whatsoever, but a general freakout over the very suggestion that this form of murder ought to carry some sort of punishment — any punishment at all.
Voluntary abortion only has “two victims” in the same sense that any kind of voluntary murder has “two victims” – that is, when we cast the perpetrator as a kind of victim. There is some truth to that, but it doesn’t keep us from punishing murderers.
March 7, 2018 § 18 Comments
Christendom college and other backward troglodyte institutions – those which still require actual evidence before taking punitive action against students accused of committing sexual assault – really need to get with the #metoo program. Everyone knows that very few rape accusations are false. Modern research proves it. And how could the experts possibly be wrong?
March 3, 2018 § 95 Comments
The political term “right” (also sometimes “liberty”), used as a noun, refers to some particular discriminating authority: to the legitimate empowerment of some specific claim as superior to competing claims. Thus a property right elevates particular claims of the owner over the claims of non-owners, discriminating in the owner’s favor when those particular claims come into conflict. To have a right is to have an authoritative claim superior to competing claims in some controvertible case.
There are many ways to understand political liberalism; this blog contains a veritable catalogue of ways to do so. That there are many ways to approach an understanding of political liberalism is sometimes criticized by positivists on the grounds that not all liberal critics use precisely the same definition. This is of course an empty criticism: there are many ways to come at an understanding of rabbits, but it doesn’t follow that people who come at their understanding of rabbits through different approaches are not all referring to the same thing, that is, rabbits. Some approaches to understanding may be clarifying and others may obscure. But at the end of the day a definition is just a definition, a way of making reference to a thing: a definition is not itself the thing which it attempts to define.
Another approach to understanding liberalism is through its insistence on using the terms “right” and “liberty” for its own claims (that is, the claims of a particular faction of liberalism), while using “authority” or “authoritarian” for claims which it opposes. The underlying reason for this is that liberalism uses connotation to subvert and invert the hierarchy of authority. “Right” or “liberty” simply denotes a particular discriminating authority; but these terms connote the authority of someone lower in the hierarchy of subsidiarity. A king has sovereign authority; vassals have their rights and liberties.
Under liberalism the term “authority” has a negative connotation; the terms “right” and “liberty” have positive connotations. So the good kind of authority under liberalism is authority that inferiors have over superiors.
March 1, 2018 § 78 Comments
It is said that when seconds count the police are only minutes away. Or maybe the police are already standing outside, doing nothing while kids are being murdered.
One way to interpret this unironically is as a natural expression of subsidiarity. In particular we can observe that the scope involved in subsidiarity invokes proximity in space, time, and authority. The authorities closest to a particular matter in space and time are those who are in the best position to make wise choices in how to deal with the matter proximately. So they should be the particular authorities empowered to make those choices, subject to review by higher authorities on the time and space scale appropriate to those higher authorities.
An example of how sensible subsidiarity is made explicit comes from the Federal Aviation Administration in the United States, the agency which governs the operation of aircraft, certification of pilots, and pretty much everything else directly related to aviation. 14 CFR 91.3 reads as follows:
§ 91.3 Responsibility and authority of the pilot in command.
(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.
(b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.
(c) Each pilot in command who deviates from a rule under paragraph (b) of this section shall, upon the request of the Administrator, send a written report of that deviation to the Administrator.
An armed populace may thus be a good and natural thing when viewed from the standpoint of subsidiarity. Nobody is in a better position to defend a family or classroom, in the immediacy of an armed attack by a criminal, than the particular authorities literally closest in space and time to those defended: fathers and teachers, respectively.
But this depends upon viewing the authority of fathers and teachers in a context of subsidiarity: specifically not as rivals to or as the source of higher authority. The police may be slower and more distant than teachers; the courts may be slower and more distant than the police. But they are all integral parts of the same organic hierarchy of authority resting on a custodial relationship with the common good.
The second amendment to the US Constitution reads as follows:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
This is commonly read as an attempt by the sovereign to limit his own authority, or perhaps the authority of future sovereigns, by arming the populace. This particular interpretation/motivation is incoherent, for reasons explained in a previous post. Unfortunately, under American right-liberalism this seems to be a very common interpretation/motivation/framing.
Setting aside the multivocity of the term “free State” it is possible to propose an (illiberal, explicitly authoritarian, and thus unusual) interpretation of the second amendment as deputization. Armed citizens are viewed as loyal subsidiary agents of the sovereign, a militia very much loyal to and subject to the sovereign, against proximate threats posed: not threats posed by the sovereign, but by criminals and foreign belligerents in that crucial quick minute and last mile.
The proof in the pudding is in the eating. The proof in this particular pudding is the accompaniment of support for the second amendment by explicit repudiation of its purpose as set against sovereign authority, sovereign authority which is legitimate and independent of consent of the governed. Concomitant to empowerment to bear arms is readiness and genuine willingness to doff one’s hat to the King. How suitable one is to bear arms is a function of how ready he is to take a knee.
Needless to say, this authoritarian / subsidiarian take on the second amendment is not taking the country by storm. Most people favorable to the second amendment interpret it as at best a confused mix of common-sense self defense independent of the sovereign combined with explicit anti-authoritarianism: that is, as a particular expression of liberalism. It isn’t framed as empowerment of the pilot in command operating in immediate local conditions of time and space under higher (but more distant and slower) authority: it is framed as a separate individual empowerment independent of and even set against higher authority. Pilots are licensed and regulated by the government; and this oversight is exactly what, it is typically proposed, the second amendment forbids or at least grossly circumscribes.
I conclude that a broadly armed population may well be an arguably good thing as an extension of subsidiarity – wherein citizens who are armed are those particular citizens who demonstrate unshakeable loyalty, explicit repudiation of liberalism, and firm commitment to the legitimacy of sovereign authority. But this is pretty much the opposite of the actual situation with the second amendment and its most vocal supporters. In modern liberal America, support for the second amendment is specifically liberal in its character and tends to be inversely related to support for the authority of the sovereign.
In short, advocacy of an armed populace in Current Year right-liberal America suffers from the same fellow traveller problem as, say, just wage advocacy amongst Feminists. You can join the team, but only if you are willing to overlook the bodies.
February 25, 2018 § 145 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.
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.)
February 6, 2018 § 151 Comments
Some days it seems like I am the only person on earth who actually respects women. Men and women are different, both individually and when considered as populations. But one of the ways we are the same – at least in my view – is that both men and women are moral agents, responsible for the behaviors we choose.
Yet a great many people – notably feminists and the mainstream pro-life movement, though those two are hardly exhaustive – really don’t seem to think this is the case at all.
In the comment thread below reader Jay posted a link to the following image:
This image was allegedly posted in a Facebook advocacy group started and governed by the very same young woman who accused her ex-boyfriend of rape (a year and a half after the alleged incident), in a case we discussed here.
There are several things to observe about this image. I’ll point out a few.
First, the image characterizes the distinction between rape/sexual assault (a very serious matter) and consensual sex (at best a minor matter, probably nobody else’s business) as something which occurs strictly and only in the woman’s mind. If she was subjectively afraid to say no and did not actually say no, he is guilty of sexual assault or rape.
Personally I would have no problem with colleges punishing extramarital sex – as demonstrated by actual evidence – severely, independent of consent. The idea that consent turns extramarital sex into a minor matter in the first place is simply wrong. Premarital sex is a grave, despicable, life-wrecking moral wrong. Consenting to fornication is a grave moral wrong. Physically forcing someone else’s participation in a morally despicable act is itself a morally despicable act, but the idea that fornication is just no big deal while rape is a terrible moral violation is false. They are both grave moral wrongs and should be treated as such.
Second, we would never buy the “I was afraid to say no” line of argument if the action was, for example, murder. The particulars matter, as always, but the most the particulars could do – even when in fear for your own life – is mitigate some of the guilt for actively participating in a murder. Saying no, resisting attempted persuasion or compulsion to do evil, is a basic obligation of every moral agent without exception. Failure to resist evil is itself a moral failure. And yes, this of course includes women – at least if you have any respect for women.
Third, if this image in fact comes from the alleged source – from the actual young woman who years after the fact accused her boyfriend of “rape” in the Shenandoah wilderness where she drove him – it appears to be a tacit admission that, whatever actually did happen between them, she didn’t actually say “no”.