In light of our discussion on the FLDS case, Christopher suggested a thread on the origins of law. I liked that idea and have a few drafts started. But it struck me that it might work better as a series of questions that pull out various views of the law and its role (or source) in our society (or any society). Perhaps this can be a sort of wiki effort at developing and teasing various views of the law and its source.
Question #1: What is your duty to your fellow man (and by “man,” of course, I mean “human being”)? And from where does that duty arise?
[Full disclosure: this question is lifted from our course on Social Justice and the Law that several readers and writers of this blog are taking this summer.]
No related posts.
I don’t owe a duty to my fellow man, other than to behave in the same manner as a reasonably prudent person of ordinary sensibilities would behave.
[Editiors Note: Big Show's gloating and spiking the ball about his Torts grade was removed because only a Horses Ass would do something like that.]
Ah, fun.
I’ll do my full disclosure up front. I got a BA in Biblical studies and have done graduate work in seminary. I’m a Reformed Christian (“Reformed” as in John Calvin, Westminster Confession, Presbyterian, Reformed…) I’m also a theonomist and a postmillennialist so those commitments drive my discourse.
Now then, to answer the question, I largely agree with BigShow in that I owe a duty to my fellow man to behave in a reasonable manner toward him and to refrain from injuring him. In other words, it is my responsibility to do unto him as I would have him do unto me. This duty arises because all men are image-bearers of God.
The interesting thing is, I think you can get to the same place that Christopher does without God. I, for one, subscribe to the theory that if their a Good, that our limited capabilities prevent us from knowing it or agreeing upon it. There are practical empirical considerations to which we must adhere. Government is hard to manage if everyone is dead.
I would therefore suggest that laws are a practical set of agreed upon conventions that keep us from killing each other.
It should be noted that my answer above is a starting point, not somewhere I “got to.” This is important because first considerations often define the terms of the discussion. For example, my presupposition is the existence of God. Yours, apparently, is the irrelevance of God.
My position flows logically from my presupposition. If God (the sovereign creator of the universe) exists, then what He says about things matters. Your position does not likewise flow logically. If it doesn’t matter whether God exists, then why must we adhere to any practical empirical considerations and why does it matter whether everyone is dead?
I ask this question up front because I anticipate that this discussion will eventually come around to the issues of the extent to which a civil government has a responsibility to enforce moral values, which moral values it should enforce, and why. Since everyone but the nihilist argues for the enforcement of some moral code, the question of presuppositions will reveal a lot about what we believe to be the source of law and therefore the role of government.
You’ve just proved my point. Your first principles give rise to one of set beliefs, mine another. I’d be unhappy if we established a political system predicated on your beliefs and vice versa. To settle this issue then, we establish a system of laws that allow for maximum freedom, but places constraints on that freedom to prevent a tyranny of the majority. You can then preach to your heart’s content in the public square, and I can just ignore you.
As for morality, I would argue that civil authority has no place in that business at all. There are better outcomes (those that allow for the functioning of society) and worse outcomes (those that gum up the works). Society promotes the former and minimizes the later so that you can self-actualize your religion, and I can live a quiet life of sin and idolatry.
You say “I’d be unhappy if we established a political system predicated on your beliefs and vice versa.” But why does it matter what makes your or I happy? If God exists, what difference does it make whether you like it or not? This isn’t an “agree to disagree” issue. If you are right, then you have no basis whatsoever to say that I am wrong. If there is no objective standard by which to measure rightness or wrongness, then how can you say I am wrong?
For example, why is maximum freedom good? What’s wrong with a tyranny of the majority? Why shouldn’t the civil authority be in the business of morality and how can you determine what constitutes a better outcome? Based on your presuppositions, the ultimate answer to that question can only be “because that’s what I think.”
If I am right, then it is irrelevant what you or I think about it. And my system can answer all the questions that yours can’t.
Under the logical tautology you’ve construed, you’re right. The existence of God would give rise to a series of direct conclusions about law and morality. Of course, so would Allah or Buddha, positions I have no doubt you would disclaim.
Noting our fundamental disagreement, how should we proceed? Should we shoot it out and let whomever is left standing decide for the vanquished? Or should we look to a system of laws that protects both? I vote for the later.
I’ve read through your discussion several times. And I must be too dense or too dim to understand. I keep coming back to the idea that your disagreement, while important in many ways, is but semantics since you largely arrive at the same conclusion.
What your disagreement foreshadows is the question that follows from the one I’ve posed here: how does your concept of duty translate into the making of laws? That’ll be one of the questions we pose later.
Here, in this context of duty, it seems to me that under a theonomist’s perspective (depending on which school you belong to), the duty to your fellow man centers first on the biblical imperatives related to treatment of, and service to, others. Only by extension is the theonomist (and I would count myself one) concerned with how the civil law enshrines or reflects the view of God’s revealed principles – in the words of the wikipedia article you linked to: “civil government is only one sphere of government. In fact, it is not even the most important one. We advocate regeneration first and only then reconstruction. We do not advocate revolution.”
That is largely how I view the issue and I draw this conclusion from it:
In this view I do not view the law as an end in itself, a tool to dictate certain points of view. Rather the law is what the governed consent for it to be. That consent is expressed through dialogue, election, and peaceful persuasion.
Legally, then, I state my duty towards my fellow man (except BigShow who I may castigate at will) to treat others as the civil law dictates, plus care for them in the way that I am instructed in the bible (listed in inverse order of importance).
Re-reading this I’m not sure this brings any clarity, but there it is…
[Editor's Note: Big Show used this space to engage in continued self aggrandizement, this time by talking about his elementary school grades. Thanks for advancing the discourse.]
Dr. Bombay,
You admit that the existence of God gives rise to moral imperatives. However, I have not constructed a logical tautology. “IF God exists THEN His law is relevant” is not a tautology. For the answer to your question, see below.
Casebook,
It is true that the law is not an end in itself and that we are not advocating revolution. And in a certain practical sense, I suppose it is true that the law is what the governed consent for it to be. But that is only true in the sense that our government is more or less designed for that to be the case, not because that is objectively the case. The law is (or ought to be) what God has said it should be. For this reason, we have many laws which are fundamentally unjust, a very idea which is impossible in moral relativism.
For example, I can say that our country’s allowance of abortion is fundamentally unjust because it is murder and God hates murder. I can also say that the degree to which our governments tax us is fundamentally oppressive and unjust because the government demands from its citizens more than God does (10%). The government does this because it has to pay for an endless stream of programs that it does not have the authority from God to undertake (education, healthcare, etc.)
So from a practical standpoint, since we do not advocate revolution, we are forced to use “the system” to bring about a God-honoring society, which oftentimes feels like traveling to India by rowboat. Without oars.
So Dr. Bombay, we advocate the Law of God and its proper position as the law of the land. This means that I am under no obligation to desire laws which equally protect everyone’s right to blaspheme or further plunge our society into debauchery and debasement. So I oppose national prayer services led by Muslims, public endorsements of sodomy, and the wholesale slaughter-for-profit of children in the womb. I do not believe these behaviors are deserving of any protection whatsoever, and to return to the point I’ve been trying to make, you may disagree with me but you have no way to tell me I’m wrong.
So I was hoping not to take the long way around this little debate we’re having, but here it is.
I’m an Empiricist. I believe that the only way we come to know the world is through experience, that there is no innate knowledge, and that our senses – limited as they may be – are the only method that we have to interface with the world.
Aristotle held a similar view in his philosophy, contending that human beings were fundamentally atomic in or nature, ricocheting off if each other in a random fashion. We were – in Aristotle’s view – constrained from chaos by the presence of Eudemonia, or a good that pervaded the world, and was the object of every human endeavor.
In the aftermath of the English Civil War, Thomas Hobbes – perhaps one of the greatest Empiricists of all time – took Aristotelian metaphysics, and eliminated the possibility of Eudemonia. His argument was that even if it existed, even if there was a universal good, our limited senses ultimately prevented us from understanding it or agreeing upon it.
This – coupled with bottomless desires and infinite wants – led to predictable chaos in the pre-governmental State of Nature, what Hobbes referred to as the “war of all against all.” Since the life of man under these circumstances was “solitary, poor, nasty, brutish, and short,” man eventually concludes that they only way is he’s going to save his skin is by getting everyone else to do likewise. And thus they enter into a social contract in which they cede their absolute liberty to do whatever they want to a sovereign with enough power to keep men in thrall, and for a reprieve from the “continual fear, and danger of violent death.”
This vision of humanity has a tendency to make people wince. Rather than put my own spin on it, I’ll quotes Hobbes
Indeed.
All this represents the groundwork for my conclusions about law. To the Sherpa’s original question, my answer is “nothing.” Laws are not predicated on duty, but rather on a sophisticated form of the Prisoner’s Dilemma. We either all get out alive, or none of us do.
To answer Christopher’s question, I think you’re wrong because the tools that I have to understand the world don’t let me draw the conclusion that God exists. I’m not saying he does or does not, I’m saying that nothing in my sensory experience tells me He’s there. I’m sure that those who are devoutly religious would contend that the image of God can be seen everywhere, but nothing in my experience rules out another, equally plausible answer. As such, it makes about as much sense to base a system of government off His word as it does the musings of Dr. Phil. Please note that this is not anti-Christian bias on my part, as I feel the say way about every religion and their adventures in government.
Turning briefly to your other question about morality and the State’s roll in promoting it, I would once again offer that it does not have one. Not only because reasonable people will have significant disagreements about what is “moral,” but because we don’t want anyone else foisting their moral positions –derived as they are from unique sensory experience – on us.
So there you have it. Knowing full well that you and I will never agree on this topic, let us focus on more pressing issues, like passing the bar.
Christopher:
Instead of making an argument as to why your view is correct or more credit-worthy than others, you’ve simply said you believe God’s law and everything else is unjust. And you’ve done so by refusing to accept the common ground from which you and Dr. Bombay began from.
Of course, Dr. Bombay told why he disagrees – that duty arises from a commonly recognized interest in survival. You’ve made abundantly clear that you won’t accept that as a valid argument because it is not “objective.”
Your purported counter-argument is that God exists, God says, therefore you’re wrong. You’ve offered no reasoning that suggests why your point of view is superior to Dr. Bombay’s conclusion that duty arises from a common interest in survival.
In the absence of such reasoning any refutation of your statement must, by your own formulation, turn this thread into a referendum on religious belief, which I had not intended and is not appropriate here.
My problem (well, one of them) with empiricism is that it is simply an inadequate basis for government. If there is no such thing as duty, and there is no such thing as morality existing outside human perception (and hence, mere opinion), then you can never speak in terms of good or evil, right or wrong. You are correct that the State has no basis for morality. However, your perceptions should inform you that the State does not share this fanciful notion. The State legislates morality all the time. For example, why do we have hate speech laws? Why do we have statutory rape laws? Why do we have any laws? Merely because these are “socially undesirable behaviors?” Undesirable to whom? The majority? After all this social “evolution,” are we still relying on that age-old axiom “might makes right?”
The very question posed at the outset of this discussion presupposed morality. “Duty” is a moral word, a fact which you do in fact recognize, because you reject the existence of any duty.
I submit that your system may not be as consistent as you seem to think. For example, you say: “I believe that the only way we come to know the world is through experience, that there is no innate knowledge, and that our senses – limited as they may be – are the only method that we have to interface with the world.”
But you seem to allow for the innate knowledge that your senses can be trusted, that a world actually exists and that your senses allow you to accurately interface with it. There is no empirical data supporting the presupposition that your senses can be trusted.
You also say: “nothing in my sensory experience tells me [God]’s there.” Yet you appear to discount the fact that you have sensory perception. What conclusions can be drawn from the fact of your very existence?
This is the problem with empiricism: it isn’t empirical. It is no less presuppositional than any other philosophical system. You simply start with the presuppositions that you exist, that the world exists, and that your senses are accurate means of perceiving the world, and the system simply doesn’t have room to ask the question “why?”
Which is the question I continue to ask. Why? Why should I obey the law? Under your system, the only answer you can really give me is “because stronger people will either make you obey or hurt you if you don’t.” How is this not a “tyranny of the majority”?
“You simply start with the presuppositions that you exist, that the world exists, and that your senses are accurate means of perceiving the world, and the system simply doesn’t have room to ask the question ‘why?’”
This is not an accurate characterization of my argument. I have no idea if I exist, if the world is real, or if my senses are accurate. I think they are, but I also accept that I could wake up tomorrow after the worst blackout in the history of alcohol, and find myself back in my junior year in college (please.)
I also think your distillation of this theory as “obey the law or get hurt” is a little simplistic. Rather, I would described it as “obey the law or have everyone else give up on it too.” If – as you stated in your earlier post – you are “under no obligation to desire laws which equally protect everyone’s right to blaspheme or further plunge our society into debauchery and debasement” why should I respect your right to worship as you see fit? Your right to freedom of speech?
As I said, we either all get out of this, or none of us do.
What does it mean to “get out of this” and why does it matter if we do? Why does it matter whether everyone else gives up on the law too? More importantly, why should anyone believe anything asserted by a person whose system doesn’t allow him to be certain of his own existence? This is not a personal attack, but a serious question aimed at showing the absurdity of empiricism as anything other than an interesting thought experiment with no value outside a philosophy classroom. As I said, it is wholly inadequate as a basis for a system of government or laws, which is the topic under discussion.
To address your question, I don’t expect you to respect my right to worship as I see fit or to protect my freedom of speech. In fact, to realign my guns to point at yet another worldview, liberalism doesn’t respect either of these. True Christian worship and speech is intolerable to preachers of tolerance. So laws have been enacted in order to keep the Church in its proper marginal place. “Do whatever you want, but keep it behind the doors of the church and don’t let it out.” Right.
But I digress.
I am still concerned with the central question. What basis, if any, is there for “right” and “wrong” and what gives the State the right to force it on me?
Christopher:
The Constitution. Any other questions?
Yeah. How? Are you suggesting that the State has a right to force its beliefs on me based solely on the fact that it claims it has such a right?
The Constitution has authority to govern conduct because the peopel have consented to give it such authority. It claims no such authority on its own.
We have the freedom to give such consent because we have autonomy as human beings endowed with reason and judgment to choose what we feel is in our own best interests.
It’s ver interesting that you use the word “autonomy” (literally self-law). It’s also interesting that you use the word “endowed.” Of course, it would have been a lot more interesting if the good doctor had used it, but I’ll take what I can get.
I would submit that the “consent of the governed” is something of a red herring. I say this because no one actually gives any such consent, and what consent they are construed to have nonetheless given is irrevocable. In other words, you can’t “opt out,” short of moving to another country and renouncing citizenship (unless you become a terrorist, in which case you still get the protections of the Constitution). This being the case, there really is no consent and the government imposes its rule by force.
Again I ask, what gives them the right?
Sorry to disappoint! I must say it’s been some time since I’ve truly flexed these mental muscles. It’s good.
“Autonomy” was a poor choice of words. “Freedom” is the word I was going for and I suspect you’ll find it just as interesting, if not more.
I disagree with your notion that the consent of the governed is a red herring. We grant consent for any number of things – including who governs us – just as centuries ago the people granted consent the Constitution. While the state enjoys a monopoly of force to maintain this system, on some level we consent to that, by not revolting – because, weighing the alternatives, we choose not to. The fact that we’re not willing to face the consequences should not be viewed as a lack of consent (it is, on its own, a form of consent).
Personally, I believe the ability to make choices is granted by God to human beings who, being created in His image, hold a capability to reason and discern what is right and just. And while we could debate the degree of autonomy an all-knowing God may (or may not) grant human beings, when it comes down to it I walk into the voting booth each year (or almost each year) and vote as do millions of other Americans.
Now, I agree with your earlier point that there are laws that are fundamentally unjust. These laws are not made just simply because they are made law by an elected body. Consent is granted on many levels and in many ways – I may consent to the system but not to every policy or outcome it produces.
I agree with you. For the most part.
Although I would point out that by that definition of consent, that Iraqi people consent to the “coalition” occupation and the citizens of all manner of despotic regimes in third world countries consent to their oppression. I’m not sure I’m ready to equate acquiescence to superior physical force with consent to be governed.
The analysis also changes depending on whether the scope of review is done on the individual or societal level. Short of armed rebellion, how does one revoke the consent to be governed? I agree that a government that allowed such an “opt-out” would be no government at all. In reality, we don’t have a choice whether or not we want the government we have. Sure we can vote, but when your only real choice is between Tweedle-Dee and Tweedle-Dum, year in and year out, it causes one to wonder whether the constituency is running the system or whether the system is running the constituency.
So to bring it around, if I get tired of the “system” and decide I want out, the government forces me to stay “in.” If it is right for it to do so, why?
Bear with me as I try to tie this thread together for my own benefit…
We’re talking about the question of duty and from whence it arises. We avoided the theological debate (with some potholes along the way) and have navigated our way to the legitimacy of government enforcing the law and, by extension, a duty to your fellow citizens as a function of the law’s origin.
Incidentally both of your points – Iraq and Tweedle-Dee – are problems with my formulation of consent – I struggle with them. And I’m not really sure that I know the answer.
Let me try to make three points briefly before class starts tonight…
1). With Iraq they traded a native force (Hussein) for a foreign force (the Americans and new Iraqi police force), each of which is focused on keeping people “in” (i.e. maintaining the government system that formed them).
I would argue simply that the latter (american/iraqi police force) is more legitimate because it’s authorized by a leadership elected by the people. Granted, this argument will struggle with the notion that the people did not choose to overthrow Saddam (though I would offer as evidence the several attempts made against him over the years).
2). This would mean that I’m arguing essentially to determine the “rightness” of the government’s effort to keep you in, the form of government is central to this formulation. A government formed on the basis of the consent of the governed, has a certain degree of license from the people to engage in certain actions that will maintain order.
3). That brings me to your final question and I think it’s vital to define what’s “in” and what’s “out.” I don’t want to squish out here but I think you can answer in terms of degrees. There’s the civil disobedience end of “out,” protesting and objecting to certain unjust policies and the armed rebellion end of “out.” Each involves a willingness to accept consequences of actions, though one involves working within the system while the other involves outright rejection of it.
I need to give the next question some more thought, namely, who is right in the state’s effort to use force to keep you in? Though I would start from my formulation of consent and how that informs the legitimacy of a form of government.
That was a very insightful reply, particularly your point 3. I have grappled with the moral dimension of the civil authorities as well.
Perhaps I could suggest a couple of *gasp* hypos we could work through. I think we can agree that it is very possible to be born into a country which one grows up to believe is wrong in one way or another. Perhaps I am a Christian in China or Pakistan, or a fundamentalist Mormon in the United States. I decide that the government is fundamentally wrong and I wish to withdraw my consent to be governed by it. Ignoring for the sake or argument the possibility of moving to another country, I have some options:
I could choose to abide by the laws though they compromise my convictions. This is the easiest option, unless my belief system informs me that the civil government is not the highest authority. If I am more concerned with the fate of my soul than with the fate of my body, this option becomes less and less appealing.
I could decide to revoke my consent by overthrowing the government. This goes along with the point you made in your penultimate comment. If my tacit consent is registered by my failure to revolt, then to withdraw my consent, I must revolt. I have many ways to attempt such a revolt: I could assassinate the president, blow up a federal building, or recruit like-minded individuals to help me plot a series of attacks. While this stands a chance of succeeding in already unstable dictatorships, we all know that it would not accomplish anything in the United States. If my beliefs inform me that it is good for me to die in the effort, this might be the way to go.
I could decide to revoke my consent by withdrawing from society. If I want to continue living, but on my own terms, I could inform the government that I no longer wish to be governed by it, and do everything in my power to physically separate myself from the rest of society. If there are others who share my convictions, I could invite them to leave with me and we could form a commune with a government based on our shared beliefs. This is attractive as a way to encourage non-violent withdrawal of consent, but recent events show us that it is equally ineffective. To the extent that the civil government knows of our actions, it will enforce its laws regardless of the desire of the people to be governed by them.
This is why I say that there has to be a reason, other than “consent of the governed,” that it should be “right” for the government to enforce its laws. If consent is never expressly given and cannot realistically be withdrawn, is it really consent?
We are a default majority government. You dont sit around and just wait for the governmnet to impose its will on you. You can speak up, participate, and influence what laws are made. Its really the essence and beauty of our system, and why we have the best government in the world. Thats where duties come from in America. Feel free to leave (or speak up and change it) if you have a problem with it.
Mojo, that’s not really what we’re talking about. But in any case, do you actually believe a person can influence what laws are made? Other than by being abducted, of course…
Yes, anyone can influence what laws are made (as long as the judges allow the democratic legislative process to work…sorry dr., couldn’t resist).
And as for the “thats not really what we are talking about” comment, I apologize. Don’t you just hate people that take a blog post off topic???
Indeed.