Ex post lacto, or, mother’s milk vs the positive law

April 14, 2018 § 29 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.

[1] I use scare quotes around “authorize” because in fact nobody has the capacity to authorize or require doing evil.

[2] Here I leave out the mentally ill and otherwise truly incompetent.

How liberalism connotes its way into the inmates running the asylum

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.

Which is to say that when liberal politics acts, it treats inferior political claims as superior.  And the insanity emanates from there.


Arming the principle of subsidiarity

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.

Equality before the law means inequality before the law

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.

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.)

A real world use case for cryptocurrency exchanges

February 13, 2018 § 30 Comments

Every real world economy is filled with real people, and there are all kinds of people in the world. There are always criminals, grifters, scammers, market manipulators, thieves, frauds, and tax evaders.  There are always financially ignorant monomaniacal idealists: people who don’t grasp the difference between reality and their beloved simulations and fictions; people who believe that messy human authority and fallibility can be dispensed with and replaced by machines. There are always substantial numbers of naive gamblers and bagholders, lured into getting fleeced by their own avarice and ignorance.

Cryptocurrency exchanges may represent a natural economic evolution, nature’s way of attracting many of these elements out of the real economy and into a buggy, hackable, scammable, get-rich-quick speculative open source video game.

You can think of cryptocurrency exchanges as a heat sink.  A heat sink is a large thermal mass which carries destructive waste heat away from the parts of a system where that waste heat can do harm.

Cryptocurrency exchanges are like a heat sink, except for stupidity and vice rather than heat: they are economic stupidity-and-vice sinks.  The real economy is doing very well at present, despite what is technically a very long running bull market.  I wonder if that isn’t at least in part because a lot of the insanity which typically accompanies bull markets has voluntarily walled itself off in its own video game world.  A lot of the craziness that we saw in the dot com era has literally locked itself away from reality inside an electricity-wasting computer game, at a cost of less than six billion dollars taken out of circulation.

Some people predict that the price of cryptocurrencies will soon go to zero; that they will shortly be left behind in the dustbin of financial history.  Personally I have my doubts.  I think society produces enough stupidity and graft to keep cryptocurrencies running indefinitely.  They may well stick around for a long time, as the economy’s evolved way of avoiding sepsis from what amounts to an intestinal blockage of greed and stupidity.


We are all Jesuits now

October 9, 2017 § 94 Comments

LMS Chairman writes:

The practice in Confession of not absolving unrepentent sinners is intrinsically related to its nature as established by Divine Law.

There is a problem with this view though. The ‘pastoral’ practice of absolving unrepentant sinners goes back to well before Vatican II, and is not a new or novel thing with the publication of Amoris Laetitia.

The Vademicum for Confessors in 1997, under John Paul II though not signed by him personally, authorized absolution of penitents who were unrepentant on contraception.

The various Sacred Penitentiary and papal audience rulings on usury in the 1800’s authorized absolution of unrepentant interest-takers in a couple of cases: specifically when those unrepentant usurers rationalized their behavior by appealing to either (1) the fact that they made mutuum loans to businessmen (condemned as an excuse by Vix Pervenit) or (2) by the fact that the ‘law of the prince’ authorized charging a certain rate of interest.

Amoris isn’t the camel’s nose in the tent: it is the other end of the camel coming into the tent.

That doesn’t make the current round of clarification any less urgent, but it is important to have a full and adequate grasp of the situation. Pope Francis is not an innovator. As the first Jesuit pope he is simply completing the centuries long Jesuit project of fighting the Protestant heresy by embracing it.

The History of Economic Thought website describes, consistent with my own understanding, the Salamanca Jesuit approach to morality in economic life and politics:

It is common to associate early Jesuit philosophers like Leonard Lessius, Luis Molina, and Juan de Mariana, with the Salamanca school.

The Jesuit Order (‘Society of Jesus’), founded in 1540 by St. Ignatius de Loyola, was erected to combat the appeal of Protestantism. […] The Scholastic doctrine of ‘just price’ was rejected out of hand as all-too-divine, the Jesuits arguing that value is a human affair and was determined by natural human interaction on markets. They followed much the same line on money and inflation. On moral defenses of usury and profit, the Jesuits were eager to reform Catholic doctrine to bring it more in line with current practice, to ease their efforts to overcome the resistance of Protestant towns to re-catholicization.

Quite more controversial was the Jesuit view of the basis of civil government, something the Salamanca scholars had largely and judiciously avoided. In line with their general approach, Jesuits like Molina, de Mariana and Suarez proposed that government rested on human consent […] Jesuit musings on the human rather than divine sources of government made them downright subversive to the established order. It did not help matters that, notoriously, the Jesuit philosopher Juan de Mariana (1598) openly contemplated that the murder of a monarch might be justified, if he proved tyrannical to the people. This was uttered at a tense time of notorious political assassinations – Henry IV of France (attempted in 1595, succeeded in1610), James I of England (Gunpowder Plot, 1605), Paolo Sarpi of Venice (attempted, 1606), etc. – in which Jesuit activists were suspected of having a role (and may indeed have had one).

In the popular mindset of the time, the Jesuits became synonymous with regicide and political destabilization.

The Jesuit approach (or, more fairly, a prominent and pervasive Jesuit approach) has always been to downplay and subjectivize the moral law as a way of making the Church seem more familiar and appealing to non-Catholics, especially Protestants. From this point of view, if pervasive everyday practice is contrary to the moral law as traditionally understood then what has to change is our understanding and application of the moral law, to accommodate everyday practice and get these people into the spiritual and sacramental life of the Church.  The important thing is Catholic unity, and if the moral law is a cause of disunity then that implies a problem with our understanding of or application of the moral law.  What is important is how people actually live, not the abstract moral demands of the Gospel.

Jesuits have been doing this for centuries, and the fruits of this approach are manifest. We are all Jesuits now.

This time Lucy won’t pull the football away

September 18, 2017 § 63 Comments

From a new article at First Things (hat tip donnie):

It was characteristic of Michael [Novak] to frame the highest good as liberation from constraint. As he says at one point, “God did not make creation coercive, but designed it as an arena of liberty.”

The free market gives us a glimpse of the ideal society, one that features order without authority and purposeful freedom without the need for agreement about the common good beyond a procedural rule of law.

Democratic capitalism does a better job sustaining an open, pluralistic society than political liberalism[1], because capitalism, unlike political deliberation, guarantees freedom more jealously (and effectively).

Yet we’ve seen setback after setback, and the corporate tsunami that recently swept through Indiana after it passed a Religious Freedom Restoration Act made clear the link between global capitalism and progressive clear-cutting of traditional religious culture and morality.

Needless to say, Michael Novak did not foresee these outcomes when he wrote The Spirit of Democratic Capitalism any more than I did when I thrilled to his insights more than three decades ago.

…he described the anthropology of capitalism in a one-sided way. Its fearsome dynamism speaks to part of our soul, but it neglects and even works against the part that cherishes permanence.

This one-sidedness needs to be corrected, for our challenges are quite different from the legacy of postwar consolidation that Michael responded to with such élan. We do not live in a closed, regulated, regimented world. Political correctness is a serious problem, and it has an authoritarian tendency. But it is not born of loyalty to permanent things. As an outgrowth of liberalism itself, this rigid ideology comes under the sign of choice. It is an obligatory, enforced participation in a fluid, liquefied moral world. We are told that we are not required to think or live in any particular way—except that we can’t think or live in ways that constrain, compromise, or even throw doubt on anyone else’s free decision to think or live differently. Taken to its logical extreme—everything is permitted as long as it permits everything—this becomes a paradoxical totalitarian toleration that is all the more dangerous because it deludes those who promote it into thinking that when they drive all dissent from the public square, they are “including.”

My summary of the article:

Don’t blame us for the poison we’ve been pumping into society for decades. We had good hearts and meant well, we just accidentally neglected to keep our nice tame liberalism on a leash. No reasonable person could have foreseen a “how were we supposed to know?” stage to inevitably follow our “what could it hurt?” enthusiasms. Who would have thought that pouring acid over the moral social fabric for centuries would make it dissolve? Who could have predicted that treating human authority and hierarchy as if it were what is wrong with the world would lead to its dissolution and reconstitution as an inhuman monstrosity?

So the thing we should all do now is correct the ‘one sidedness’ of what we’ve been doing for decades.  We need to work together to promote a nice tame liberalism in common sense balance with moral constraints and the common good.  We need more water for the shriveled up plants in our common garden, to bring balance to the acid we plan to continue pouring on them.  And that is totally, totally different from what conservatives have been doing since the founding of America.  This time it will work, really.  We have to adjust to the times, to find a renewed way for political freedom to flourish.

Oh, and that crank Zippy’s understanding of liberalism is a big strawman.


[1] Translation: our intramural team in the red shirts is so much better than the other team playing the exact same game by the exact same rules in pursuit of the exact same goals, because they wear blue shirts.

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