Law and Liberty are Always in Tension
In ancient Rome, there were three types of laws, the Ius Civile, the Ius Gentium and the Ius Naturalis - the same is true today.
The cost we pay in exchange for being member of our civil society, is that we do have a moral obligation to adhere to society’s laws and rules – but I have never said that unjust laws should not be resisted.
I read an article this morning from Australia about construction of a COVID-19 quarantine facility that was upsetting.
Not only are concentration camps being built in full view of the people who will eventually be trapped in them, they are being built with the express approval of those same people. These rudderless people are in full support of the construction of their own prisons - because Covid-19 isn't the last reason for authoritarians to exert their power, it is merely the first of many. This health "emergency" makes it easier to use the next to continue to destroy the liberty of the people, and do it with the approval of those same people.
But such things are “legal” to do in New Zealand.
In the past, I have cited Martin Luther King’s Letter from a Birmingham Jail and I do believe that, as Dr. King put it:
There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”
King draws a parallel between the Civil Rights struggle and the legal philosophy of citizens of the Roman Empire. In ancient Rome, there were three types of laws, the Ius Civile, the Ius Gentium and the Ius Naturalis. Samuel Gregg, Ph. D. of the Acton Institute describes them as:
The origins of the idea of the law of nations – the ius gentium – are not to be found in the early modern period. It was first articulated by Greek and Roman classical philosophers and jurists. In the Institutes of the Roman jurist Gaius (130–180), theius gentium is closely associated with the ius naturale. “Every people”, Gaius wrote, “that is governed by statutes and customs observes partly its own peculiar law and partly the law common to all mankind. That law which a people establishes for itself is peculiar to it, and is called ius civile as being the special law of that state, while the law that natural reason establishes among all mankind is followed by all peoples alike, and is called ius gentium as being the law observed by all mankind.”[ Gauis’s distinction between ius naturale and ius gentium lies in the notion that the origins of this law lie in human reason while ius gentium represents its application.
So Ius Gentium is defined as ‘ius’ or ‘law’ that is universally practiced. For instance: When someone buys a certain product, one has got to pay for it, stealing is not allowed, nor is murder. Ius Naturale means ‘natural law’ or ‘moral law’ and Ius Civile, or the “law of the state”. There always is tension between these three, much as we are currently discussing. Certain things could fall under the Ius Gentium and Ius Civile but not under Ius Naturalis. Slavery in early America is an example: Slavery was institutionalized in America over hundreds of years and codified into the laws of the colonies (thus it was both Ius Gentium and Ius Civile), many of the Framers of the Constitution considered it in breach with Ius Naturalis or moral law.
Our disagreement is not that civil laws that contradict Natural Law (or therefore the Constitution) should be disobeyed but what is the tolerance level that is required before taking to the streets in civil disobedience…and over what? Have we been plunged deep enough in the pit of despair? If it is truly zero tolerance, then we run the risk of being portrayed as people fighting over insignificance, not that that it would be the case, only perceived that way.
Martin Luther King’s struggle was against a far more definable and discrete affront to Natural Law – his was akin to the obviousness of the evil of slavery and the direct contradictions to the Constitution and the Declaration of Independence. In this case, there was a “grand enemy” (eg. large), definable as a clear and present danger that was accessible to, and easy for, the majority of Americans to understand.
It is an open question, if left to choose, will people choose freedom and the risk that go along with it or will they sell their freedom (and ours) for the security of a patriarchal and parochial government?
I struggle with the philosophical dichotomy of how we avoid oxymoronic thought of “enforcing freedom” – which is to ask, “Will people have to be compelled by force to be free?” That smacks of the “we had to destroy the village to save it” thought process. Must we submit the citizenry to the form of Hobbes or More’s “sovereign” or a council of judges to force a particular interpretation of the Constitution on them? If we do, is that not exactly what we are currently fighting against the institutional left for?
In every case, the decay and eventual destruction of every civilization rests not upon Kings or governments but upon the people. Government is merely a vehicle. As I have said time and time again, the quality of a culture depends on the quality of the people in it. I am quite fond of Frederic Bastiat, so I shall quote him (from an English translation of The Law):
But, unfortunately, law by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense.
How has this perversion of the law been accomplished? And what have been the results?
The law has been perverted by the influence of two entirely different causes: stupid greed and false philanthropy. Let us speak of the first.
Self-preservation and self-development are common aspirations among all people. And if everyone enjoyed the unrestricted use of his faculties and the free disposition of the fruits of his labor, social progress would be ceaseless, uninterrupted, and unfailing.
But there is also another tendency that is common among people. When they can, they wish to live and prosper at the expense of others. This is no rash accusation. Nor does it come from a gloomy and uncharitable spirit. The annals of history bear witness to the truth of it: the incessant wars, mass migrations, religious persecutions, universal slavery, dishonesty in commerce, and monopolies. This fatal desire has its origin in the very nature of man — in that primitive, universal, and insuppressible instinct that impels him to satisfy his desires with the least possible pain.
I once had faith in the American people – but after Obama, even after all his mistakes, was reelected in 2012 , I lost much of that faith. How people could vote for someone so obviously and openly opposed to American values came as a shock to me. President Trump’s close win in 2016 was a reason to hope, but that was dashed in 2020 by the “election” of His Fraudulency, Joseph R. Biden.
I honestly believe that a full third of America does not want liberty – and to make matters worse, there is another 40% or so who are willing to sit back and watch America be destroyed.
Well, I have been called a pain with some degree of frequency!
Have you ever thought of adopting a pen name? Might I suggest “Thomas Paine?”