Saturday, September 5, 2015

No sir, that is an unlawful order and I will not obey

Kim Davis is the first of what will be many I hope. Not that I hope more Christians go to jail because I think they should uphold laws enforcing sodomite "marriage," but that they go to jail because they refuse to compromise their convictions. You know how sick American Christianity truly is when even self-professed Christians demand that Davis carry out an unlawful order.

Every time some case like this comes along, the legal positivism bandwagon clatters through town. Goodthinkers argue that clerks and other public officials must - they absolutely must - uphold the laws exactly as they are written no matter their "personal feelings." The personal feelings line is actually meant to discourage us from doing any hard thinking on whether there is a conflict between the positive law and the natural law.

Ironically, there is nothing in the United States Constitution or any statute anywhere in the English speaking world that states we must embrace legal positivism. It's actually a fairly recent innovation in Anglo-American judicial philosophy, and not one that is without critics besides religious wacko extremists like me.

The natural law is the necessary basis of positive law:
1959 The natural law, the Creator's very good work, provides the solid foundation on which man can build the structure of moral rules to guide his choices. It also provides the indispensable moral foundation for building the human community. Finally, it provides the necessary basis for the civil law with which it is connected, whether by a reflection that draws conclusions from its principles, or by additions of a positive and juridical nature.
Other things being equal, we have a moral obligation to obey civil laws even if our rulers are wicked. We may elect the cryogenically frozen brain of Hitler president, but we still have to drive on the right side of the road. However, that obligation ceases and we gain a moral obligation to disobey any civil law that purports to contradict the natural law. "I was just following orders," is not a valid excuse to do evil.

The choice that is presented to Christian public officials - either enforce the law or resign - is a false dilemma that begs the question. There is no problem if you do not presuppose legal positivism. The left-liberal option of jumping out of the positivist frying pan and into the emanating post-modern penumbral fire is also false. Both represent attempts to push the natural law outside of the Overton Window and replace it with the Nietzschean will to power.

7 comments:

  1. Count me as your 7th reader.

    I'm glad you made this point. If I read another idiotic Rod Dreher blog post about how Kim Davis needs to "follow the law or resign," I'm going to ask the AmConMag to close shop.

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    1. I like your internet name friend. To quote another famous Marine, "The enemy has us surrounded? Good! That means we can attack in any direction."

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  2. So what, now Dreher is saying Davis should just comply?! Yes, we should all just renounce our convictions rather than take the illigitimate persecution of the state with the defiant stare of God. How noble. How brave.

    Where has this rank cowardice emerged from! Davis is an example to all, and damn any so-called 'Christian' who joins the mob demanding her head. Their loyalty is clearly to the WORLD, to the CROWD, to the SECULAR OPINION. They are as much enemies as the louts who passed this decree and the gorillas who enforce it!

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    1. Dreher has always had the smarmy look of a coward.

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  3. Goodthinkers argue that clerks and other public officials must - they absolutely must - uphold the laws exactly as they are written no matter their "personal feelings."

    Not really. They don't make that argument when they themselves don't like the law. In California, for example, they argued against that very same policy re: Prop 8 (back when it was still "the law").

    The argument for upholding the law as written is based on the concept of the Rule of Law. Once you let personal feelings into it, you have the Rule of Men, not the other. Arbitrary decisions will become the norm. Of course, this dichotomy is a liberal product, as it stems from the liberal rejection of the natural law and a concept of a fixed "good."

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    1. As much as I like John Adams, he was only half-right when he said that we have a government of laws and not men. Laws are written, interpreted, and enforced by men. Therefore, it behooves us to ensure that we are ruled by good men. Liberalism, however, seems specifically designed to avoid questions about what is objectively good.

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  4. A license is - permission to do something that would otherwise be illegal to do without it... as I understand it... so, anyone with a brain must know that if you need to ask permission to do anything from another person, then that person - the one who grants permission - also has the power to deny permission... I have never had a license or permit for anything... I'll be damned if I go get when when it is time to get married... and if it is assumed that just anyone can get a license to marry, then what is the point of getting one - other than more government control of your life, but if that is not the case, some one must be there to say - no, you can't do that, it's just wrong...

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