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.
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.
June 15, 2017 § 37 Comments
Denzinger, for those who don’t know, is a compendium of Catholic doctrines which is used to teach seminarians. What is notable about it is that it isn’t a catechism or commentary: it is a collection of actual authoritative magisterial statements on a wide range of moral and theological subjects, originally commissioned by Pope Pius IX. The content of Denzinger is actual epistemically authoritative pronouncements of the teaching Magisterium collected over the millennia, as opposed to some person’s explanation of “what the Church teaches”.
One of the things that struck me when I bought my first copy of Denzinger was how small it is, as a collection of the explicit authoritative communal beliefs of a millennia old institution with a global footprint: as the collected actual resolutions drawn from two thousand years of disputation and controversy. No one can hold the dimunitive single volume in his hands, and then witness the glory of medieval cathedrals and universities, without concluding that the production of true propositions on paper is not the primary activity of the Church.
Another unmistakable impression was that when you read someone’s commentary represented as “what the Church teaches,” what is most remarkable is how much of that commentary represents the imported and unexamined metaphysical baggage of the author.
But you don’t have to trust my impressions. You can form your own by carrying a copy of Denzinger into St. Mary Major in Rome or one of a thousand other churches and cathedrals.
June 14, 2017 § 36 Comments
Doctrine is to pastoral practice as [fill in the blank] is to farming.
I’ll start: “mathematics”.
June 5, 2017 § 81 Comments
The pope is primarily a sovereign, that is, a flesh and blood man born of ordinary human parents who possesses supreme authority over the Church. He is the Vicar of Christ: a human representative of Christ who is – Christ is – absolutely and supremely sovereign.
Human beings really don’t like to serve their masters in general, and they especially don’t like to feel obligated to obey other flesh and blood human beings. Unlike God human beings are messy, smelly, fleshy, hairy, blood-and-bone animals with limited intellects, voracious appetites, narrow perspectives, egos well out of proportion to their ant-like personal significance in the scheme of things, mountainous lasagna layers of prejudice about matters they don’t understand, and prodigious helpings of vice. Who would want to be actually morally obligated to obey such a creature?
Atheists avoid the problem entirely by anointing themselves supreme intellect, but alas, this option isn’t available to believers. Protestants resolve the issue by appointing themselves Popes of their own personal Churches, projecting their own opinions onto pages of infinitely plastic interpretable text.
And one pervasive way for Catholics to be rid of this terrible and humiliating sense of obligation to obey a smelly beast with an oversized brain is to confound authority with degrees of epistemic certainty. After all, once we acquire knowledge of good and evil won’t we ourselves be like God?
So we are to obey Father because “Father knows best”, not because he is Father. If we knew better than Father our obligation to obey him would disappear. Father doesn’t actually have authority; he just happens to be in an epistemically superior position through accident of history, at least for the time being. Sovereignty is justified by the sovereign’s superior knowledge: by his capacity to infallibly declare doctrine, not by something so humiliating to us as actual possession of real authority. It is to this transcendent knowledge that we give assent, not to the flesh and blood king. And the tree of the knowledge of good and evil is always there to set us free.
Popes almost never make infallible proclamations of doctrine though. The primary concomitant to the doctrine of infallibility is that almost nothing that a Pope says or does is an expression of epistemic certainty. His power qua Pope resides almost entirely in his real capacity to bind us to obedience in certain matters in the juridical domain of day to day Church rule — whatever we may think of, and whatever may be the objective wisdom or folly in, his decrees.
Institutionally of course there is real content to the Deposit of the Faith, and over the millennia this content has clarified and developed. Individual Popes and Councils have certainly made contributions here and there; though at least one Council is claimed, by the very Popes who called and ratified it, to have been purely pastoral: that is, to have defined no doctrines or dogmas at all. “Pastoral” refers to the day to day life and actions of the Church as explicitly distinct from defending doctrine, that is, it refers to most of what the Church actually does as an authoritative living hierarchical institution headed by a flesh and blood monarch.
But the accumulated institutional body of knowledge at Ford is distinct from the authority of its CEO. The thing about Daddy is that on the sparse occasions when he actually tells you what to do you’d bloody well better do it, unless you have compelling contrary reasons and are willing to face the consequences of disobedience.
And the thing about individuals and whole societies with Daddy issues is that they usually don’t really want an actual Daddy. What they want is a flesh puppet with Daddy’s knowledge, competence, and authority to use his voice to speak their opinions and make them feel better about themselves.
June 2, 2017 § 32 Comments
The natural law gives rise to absolute and categorical negatives: to absolute prohibitions which morally bind always and everywhere to prohibit certain kinds of behavior, independent of intentions and circumstances. Murder, contracting for usury, torture, and adultery are always and without exception morally wrong kinds of behavior. Once a contemplated action is recognized as intrinsically immoral in species it is always morally wrong to choose that behavior.
It is also always morally wrong to intend the intrinsically immoral behavior of others, either as a means or an end. We call this formal cooperation with evil.
The authority of particular men arises from and builds upon the natural law. A father has authority over his children by nature; his imposition of a particular bedtime morally binds his children to obedience in virtue of his natural authority qua father. We call the particular commands of a person in authority positive law. For brevity I will refer to “the person in authority” as “the sovereign“.
Positive law can take two different forms.
In one form of positive law the sovereign directly asserts a particular command in a particular concrete situation: go to bed right now.
In another form of positive law, the sovereign promulgates a normative rule: in thus and such a circumstance, this is to be done. Bedtime is eight o’clock.
Commands from authority are not the only kind of positive law. For example we all have a positive natural law moral obligation to give alms: to materially support the poor and downtrodden, our brothers and sisters in Christ.
But it is fundamentally impossible for positive law to morally bind us to particular actions under all conceivable circumstances. Positive law is always by its very nature regulated by prudence. Going to bed at eight o’clock when the house is on fire would be a kind of mechanical rule-following which makes no sense under the particular circumstances. The positive rule is normative, but cannot by its nature be categorical.
I can’t explain this more plainly than the Church itself explains it:
Furthermore, what must be done in any given situation depends on the circumstances, not all of which can be foreseen; on the other hand there are kinds of behaviour which can never, in any situation, be a proper response — a response which is in conformity with the dignity of the person. Finally, it is always possible that man, as the result of coercion or other circumstances, can be hindered from doing certain good actions; but he can never be hindered from not doing certain actions, especially if he is prepared to die rather than to do evil.
Rules, procedures, and written law are not capable of becoming transubstantiated incarnations of authority itself. The crafting of positive rules, the writing of text onto paper, is not a sacrament. Bureaucracy cannot become a substitute for fathers, daycares cannot become a substitute for mothers, and formal decision procedures cannot become a substitute for kings.
This is distressing to the modern mind, which desperately wants to believe that a politics with minimized authority is not merely coherent, not merely possible, but is the only moral state of affairs.
Ultimately though reality doesn’t really care about the daddy issues of modernity. Pervasive commitment to an incoherent conception of authority doesn’t make authority go away as a feature of reality: it merely makes authority sociopathic.
May 30, 2017 § 154 Comments
Authority is conserved, so the political possibilities in resolving actual controverted cases aren’t “more freedom” versus “less freedom”. The range of real political possibility is between authority exercised publicly and accountably by particular men, and authority exercised sociopathically without personal responsibility behind a wall of mechanical bureaucratic procedures and ‘zero tolerance’ rules (a situation often labeled ‘the rule of law’, but positivistically excluding the particular judgment which justice requires).
Modern people are always looking for ways to substitute rules and procedures for the authority of flesh and blood men. Folks who deny the reality of authority prefer to be an insignificant mechanical component in a vast impersonal rule-executing machine rather than a subject expected to doff his cap to the king. This necessarily results in unjust and sociopathic exercise of authority.
In this post I will argue that substituting rules and procedures for human judgment and authority is necessarily unjust for what is called the “exclusionary rule” in American jurisprudence.
The “exclusionary rule” requires criminal courts in the US to always suppress evidence of a crime when improper procedures were followed in the collection of that evidence. (Pay special attention to the use of always and some/sometimes in this argument).
This rule necessarily results in some cases resolving to an unjust result; in particular in those cases where good judgment should take procedurally tainted evidence into account. This injustice obtains against both the victims of crime and the common good of the community.
A rule which guarantees some unjust results is an intrinsically unjust rule. Note that it isn’t necessary for the rule to always produce an unjust result for this to be the case: it is only necessary for the rule to sometimes produce an unjust result, because the rule is supposed to apply always.
Therefore the exclusionary rule is intrinsically unjust.