How To Win An Argument

Taken from a sign posted outside a philosophy professor's office.

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I argue very well. Ask any of my remaining friends. I can win any argument on any topic, against any opponent. People know this, and steer clear of me at parties. Often, as a sign of their great respect, they don't even invite me. You can win arguments too. Simply follow these rules.

Drink Liquor
Suppose you're at a party and some hotshot intellectual is expounding on the economy of Peru, a subject you know nothing about. If you're drinking some health-fanatic drink like grapefruit juice, you'll hang back, afraid to display your ignorance, while the hotshot enthralls your date. But if you drink several large shots of Jack Daniels, you'll discover that you have STRONG VIEWS about the Peruvian economy.You'll be a WEALTH of information. You'll argue forcefully, offering searing insights, and possibly upset furniture. People will be impressed. Some may leave the room.

Make Things Up
Suppose, in the Peruvian economy argument, you are trying to prove Peruvians are underpaid, a position you base solely on the fact that YOU are underpaid, and you're damned if you're going to let a bunch of Peruvians be better off.

DON'T say: "I think the Peruvians are underpaid." Say: "I think Peruvian's salary in 1981 dollars adjusted for the revised tax base is $1,452.81 per annum, which is $836.07 before the mean gross poverty level." (NOTE: Always make up exact figures.) If an opponent asks where you got your information, make THAT up too. Say: "This information comes from Dr. Hovel T. Moon's study for the Buford Commission established May 9, 1982. Didn't you read it?" Say this in the same tone of voice you would use say, "You left your soiled underwear in my bath house?"

Use Meaningless but Weighty-Sounding Words and Phrases
Memorize this list:

• Let me put it to you this way
• In terms of
• Per se
• As it were
• Qua
  
• So to speak
• Well, any-who

You should also memorize some Latin abbreviations such as "Q.E.D.", "e.g.", and "i.e." These are all short for "I speak Latin, and you do not." Here's how to use these words and phrases. Suppose you want to say: "Peruvians would like to order appetizers more often, but they don't have enough money." You never win arguments talking like that.

But you WILL win if you say: "Let me put it in this way. In terms of appetizers vis-a-vis Peruvians qua Peruvians, they would like to order them more often, so to speak, but they do not have enough money per se, as it were, Q.E.D." Only a fool would challenge that statement.

Use Snappy and Irrelevant Comebacks
You need an arsenal of all-purpose irrelevant phrases to fire back at your opponents when they make valid points. The best are:

• You're begging the question
• You're being defensive
• Don't compare apples to oranges
• What are your parameters

This last one is especially valuable. Nobody, other than mathematicians has the vaguest idea what "parameters" are. Here's how to use your comebacks.

• You say: "As Abraham Lincoln said in 1873..."
• Your opponents says: "Lincoln died in 1865."
  
• You say: "You're begging the question.."

OR

• You say: "Liberians, like most Asians..."
  
• Your opponents say: "Liberia is in Africa."
  
• You say: "You're being defensive..."
  

Compare Your Opponent to Adolph Hitler
This is your heavy artillery, for when your opponent is obviously right and you are spectacularly wrong. Bring Hitler up subtly. Say: "That sounds suspiciously like something Adolf Hitler might say" or "You certainly do remind me of Adolf Hitler."

You now know how to out-argue anybody. Do not try to pull any of this on people who generally carry weapons.

In Response to a Democrat's "Manifesto"

Update: January 8, 2009

Gabrielle has decided to leave the LDS Church.

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There has been a small stir concerning a response I made a few days ago to a blog maintained by a "Mormon Democrat" concerning health-care. This was originally posted here, in response to Gabrielle's home-blog, and then here, in response to Gabrielle's comments on Connor Boyack's blog. I usually target so-called and self-professed 'conservatives' for their own socialist hypocrisy, but this time I decided to go for the self-professed liberal socialist.

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The “law of the land which is constitutional” is that law that supports the “principle of freedom in maintaining the rights and privileges” to all mankind (D&C 98:5) and “to each individual the free exercise of conscience, the right and control of property, and the protection of life” (D&C 134:4). According to the liberal/socialist argument, the ‘protection of life’ may be obtained at the expense of my ‘control of property’ through coercive taxation. Furthermore, according to this same argument, one of Christ’s commandments of providing for the poor is followed at the expense of breaking another commandment of stealing and coercion.

The only way this argument is right is if the people are wicked. Scripturally, wickedness is first identified by the refusal to help the poor, the downtrodden, the sick, the afflicted, and the widow and fatherless. Such a refusal to help the poor is repugnant to the Lord; in fact, Hugh Nibley argues that such a refusal to help the poor was the foundational sin that caused Sodom and Gomorrah’s destruction. How, then, has the Lord commanded us to go about fixing such a problem? When social inequality exists, how does scripture tell us to fix the problem? Alma, as the High Priest to the Church and the Chief Judge to the Nephite people (thus leading both the religious and political organizations), gives us an excellent example when he saw the great social inequality among his people.

“Yea, he saw great inequality among the people, some lifting themselves up with their pride, despising others, turning their backs upon the needy and the naked and those who were hungry, and those who were athirst, and those who were sick and afflicted. Now this was great cause for lamentations among the people, while others were abasing themselves, succoring those who stood in need of their succor, such as imparting their substance to the poor and the needy, feeding the hungry, and suffering all manner of afflictions, for Christ’s sake…” (Alma 4:12-3). Does this sound familiar? Are we currently having great ‘lamantations’ in our own country and among our own people over those in need? Certainly.

Because he led both organizations, Alma was able to either politically or religiously act. I ask, what did he do? Did he pass more laws that chained the people down with heavy taxes? No, such is discussed throughout the Book of Mormon as a condition detested by the Lord. Did he pass laws that tried to create more ‘equality’ among the people? No. Did he do anything politically to extend the arm of government into the affairs of the people to force them to take care of their moral imperative and duty? No. In fact, he completely gave up the judgment seat altogether! What did he then do? He went to preach the word of God!

Before we ridicule this and laugh at such a proposition that preaching the word of God is more influential in changing society than is passing political laws that coerce the individual, first examine WHY he did this.

“And this he did that he himself might go forth among his people, or among the people of Nephi, that he might preach the word of God unto them, to stir them up in remembrance of their duty, and that he might pull down, by the word of God, all the pride and craftiness and all the contentions which were among his people, seeing no way that he might reclaim them save it were in bearing down in pure testimony against them” (Alma 4:19). What was Alma’s point? To “stir them up in a remembrance of their duty”. How influential was preaching the word of God as opposed to inflicting artificial ‘equality’ within society through coercion?

“And now, as the preaching of the word had a great tendency to lead the people to do that which was just – yea, it had had more powerful effect upon the minds of the people than the sword, or anything else, which had happened unto them — therefore Alma thought it was expedient that they should try the virtue of the word of God” (Alma 30:5). What lead the people to do that which was just? What awakened and stirred the people’s remembrance of their individual duty? Was it positivist law? Was it forced equality? Was it forcing one man into his duty? No, the Lord’s way is established — God will force no man to perform his moral duty.

“Know this, that ev’ry soul is free, to choose his life and what he’ll be; For this eternal truth is giv’n: That God will force no man to heav’n. He’ll call, persuade, direct aright, And bless with wisdom, love, and light, in nameless ways be good and kind, but never force the human mind. Freedom and reason make us men; Take these away, what are we then? Mere animals, and just as well the beasts may think of heav’n or hell. May we no more our pow’rs abuse, But ways of truth and goodness choose; Our God is pleased when we improve His grace and seek his perfect love.” Of a truth, the Lord is pleased when we obey the commandments and take care of those in need; however, he is particular in how we obey such commandments.

Alma’s example shows us that the power of a testimony in Christ can convert the soul to do that which is just by its own inner moral duty. Socialism’s entire structure denies this real possibility of changing the course of humanity through the gospel of Christ to allow man to be morally responsible without being coerced into such duty. Was this not the fault of the very people who killed the Christ? Did not the Pharisees and Sadducees of Christ’s day believe that the ‘Messiah’ would come to rule in political matters? Yet Christ’s real message was for the individual to morally act and take personal accountability and thus throw of their own chains. While the Pharisees and Sadducees looked to man’s government as their solution, Christ changed people’s hearts who then took themselves out of their own bad situations. After all, this is a message continually taught by our own Church leaders: The world takes a man out of the slums, but the gospel of Christ takes the slums out of the man who then takes himself out of his own slums. There are several examples in the Book of Mormon alone that re-illustrate this exact principle. It is beyond contest.

So, here we are. A national dilemma where we have great social inequality. One side is admittedly prideful and doesn’t want to be bothered, the other side is admittedly open to thievery to achieve their ideological ends. Tell me, in this system, where is the spirit of God? I contend that both sides are wrong, and I side with the principle of freedom and liberty. Where in all this debacle is the spirit of God that influences by “persuasion, long-suffering, by gentleness and meekness, and by love unfeigned, by kindness, and pure knowledge, which shall greatly enlarge the soul without hypocrisy, and without guile” (D&C 121:41-2)? This is the way to provide for the poor, the sick, and the afflicted. Where are the members of the Church, on the right and left political spectrum, who are out bearing-down testimony and providing for the poor, the sick, the afflicted, and all those in need? What happened to ‘every member a missionary’? As President Benson (the most hated Apostle and Prophet among most liberal members, and even some conservative members) said,

“Now part of the reason why we do not have sufficient priesthood bearers to save the Constitution, let alone to shake the powers of hell, because, I fear, unlike Moroni, our souls do not joy in keeping our country free, and we are not firm in the faith of Christ, nor have we sworn with an oath to defend our rights.”

Interesting. We lack the spirit, trust, and testimony necessary to do what Alma did. We lack the ability to stand up like Moroni. All we’re left with now is the ability to stand up and use the majority to obtain our moral objective through force! When we have an inner-moral compass, we’re capable of acting individually within society to promote the best interests of those in need. Yet, when we are incapable of standing up like our exemplars in the Book of Mormon, what is left us? Elder Christofferson perhaps said it best in October General Conference this year, “We would not accept the yoke of Christ; so now we must tremble at the yoke of Caesar.” Sobering words, and certainly not words I want eternally associated to my spirit — to have been one who openly wanted the ‘yoke of Caesar’ to supposedly obtain the purposes of God. This is certainly deceit in its most subtle form — to use Lucifer’s tactics to achieve the Lord’s purpose. Ironic, isn’t it?

So, what of government? For any person who has taken the time to actually read the Constitutional Convention Notes (or even an abridgment of the notes), they would readily see the lengths the founders went to ensure the individual from ever finding a relationship with the federal government; after all, the original Constitution only allows for ‘the people’ to vote for their Congressmen — the Senate, the President, and the Supreme Court were all elected outside the direct scope of the people. The federal government was never intended to coerce and be in relationship with the individual, but to deal with the states directly — this fact is beyond contest. A Constitution, per our founder’s understanding, was not a limit upon the people, but was the people putting a limit on the government. The Constitution granted no rights whatsoever, but was a declaration of completely free and individually sovereign people telling their government exactly what it could (and implicitly could not) do. I say ‘implicitly’ because of the 9th and 10th Amendments. The government can grant absolutely NO rights whatsoever, because it is an entity and fabrication of the people — government can have absolutely no power greater than its creator, the people. Our Declaration of Independence openly states that our rights are derived from our Creator. Among all the rights granted by our Creator are the three which government action is to be limited to: life, liberty, and property.

The stated purpose of government — as per scripture, prophetic utterance, and our own American founders — is to establish the greatest amount of justice possible within society. In the course of establishing justice within society, there are some issues wherein government cannot rule without imposing inequality and social INjustice. Health-care is one of these. By securing the ‘needs’ of the few, the rights of the many are infringed — this necessarily creates injustice. Even Dr. Martin Luther King and Abraham Lincoln observed that you cannot destroy the freedom of one without destroying the freedom of all. Even Aristotle’s theory of social justice observes the obvious problem when the wealthy’s property is attacked by claims from the poor man’s rights, and that the poor man’s rights are attacked by the wealthy’s interest in their own property. There is a solution, but forcing ‘equality’ within society is not just.

Our government was not meant to “force” anyone. The only time ‘force’ was ever applied was when an individual actively and directly violated the life, liberty, or property of another individual. Coercion is therefore used to incarcerate the individual who actively, intentionally, and directly infringed on his neighbor’s life, liberty, and property.

I am truly sorry for one’s tragic surgery that cost $50,000 that ruined the family’s credit and made them lose their house for that one month they did not have health insurance. I too have been in that situation, when my son was born 6 weeks premature and our hospital bills amounted to over $250,000. I am still paying bills on this debt, but this debt is MINE — not yours. I have never taken a government penny for any of my three children (or anything else for that matter — and, yes, I mean ANYTHING else), and as a token to my Creator that I would never make “the people” pay for my children I named my first daughter ‘Liberty’ — I will not allow her birth or her life to financially enslave the workmanship of another man’s hands or property, regardless of what is socially accepted and regularly taken from mine.

One may use his or her agency to financially enslave the populace to be compelled to pay for their point of view, but that particular view is spoken of in scripture. Remember that in a representative government, the principle of government may be broken down into the relationship of a man/woman and their neighbor. Do I individually have the power to make my neighbor pay for my health care, even when I am sick and afflicted? If I were to come to their home at gun-point and extort money from them under threat of incarceration if they did not pay, I would be instantly thrown in jail — regardless of my condition. However, somehow, magically, when I send my representative (government) to do this job for me, it is suddenly okay? Remember the words of our founders, our prophets, and our Constitution, that the government can only act specifically in the powers the people delegate to it — and the people, being given all their rights from their Creator, cannot fabricate rights ex nihilo to delegate to government something that they do not have. Before we believe we can delegate all aspects of our life to government to legislate in our behalf, we must remember that government can only justly rule in matters of life, liberty, and property when we are directly and intentionally targeted and infringed upon. The founders called government action outside these bounds “tyranny” and “usurpation” — yet, today, we call this “the living document” theory.

Sure, the Constitution is a ‘living document’. It was designed this way to constantly move and counteract dangerous trends in society that sought to destroy freedom and liberty. As society grew, and the following generations lost sight of their forefather’s sacrifice for the principle of liberty and freedom, we are given the ability of securing our freedom and liberty against encroachments by unprincipled, dishonest, or merely misguided individuals. In fact, as I addressed at the beginning of this post, our own scripture states that a ‘law’ is only a ‘constitutional law of the land’ when it supports ‘that principle of freedom’ (D&C 98:5). The principle of freedom cannot be justly or legitimately legislated away — it being a gift of the Creator. There are those who state that the health-care bill will necessarily violate freedom, but that this is necessary to take care of those in need. Certainly, government will pass positive (human) law that will violate the ‘principle of freedom’ — we have seen this in our own Church history. Of these laws that violate the principle of freedom we are told that “as pertaining to the law of man, whatsoever is more or less than [the constitutional law of the land that supports the principle of freedom] is evil… And I give unto you a commandment, that ye shall forsake all evil and cleave unto all good” (D&C 98:5,11). Does this mean anarchy? No. This means that we are only to support those measures that — in relationship to government — first maintain the principle of freedom before any other principle; otherwise, whatsoever is more or less than this is evil.

People have the ability of using their free-agency to murder, rape, plunder, steal, and do horrible things, but Democrats and Republicans alike should take note that a majority’s acceptance of these atrocities does not make it right. It simply means that the punishment for these crimes will be saved for a heavenly court, not a corrupt earthly one. When my very life is made illegal unless I come into compliance with a ‘law of man’ like it will if the ‘mandatory health-insurance’ measure is passed (and it IS a ‘law of man’ because the ‘principle of freedom’ is violated), then I openly argue that this bill murders freedom, rapes the soul, plunders the property of the individual, and steals the livelihood of hard-working Americans.

In the meantime, however, I will continue to support and donate to the many private organizations that provide free medical care to as many as cannot pay or do not have insurance, such as the LDS Primary Children’s Hospital, the Shriner’s Hospitals, and to the St. Jude Hospital and Cancer Research Center (located in my hometown of Memphis, TN). I believe in the goodness of people — I have seen it consistently in my lifetime. I know the hardships of watching a personal family member who suffers from mental disorders become homeless and a transient. Yet I see the blessings of private organizations — especially those of the Church — who have taken over in areas where government constantly and completely fails (and will inherently continue to fail, because it is inherently incapable for government to act in certain matters). I have seen the active hands of those members of the Church who drove hundreds of miles and dedicated thousands of hours to rebuild the homes after Katrina. We yell about the delayed help given to Katrina victims, but we fail to see that this is an inherent problem within government bureaucracy — problems that do not exist in private help. The Church was on the ground providing water days before FEMA organized — furthermore, private corporations like Wal-Mart and Home Depot had trucks and supplies loaded up and headed into the area long before the government got its act together. This is not an isolated incident. this is the rule. Government is best when it is restricted to the limited duty of ruling in matters of the direct violation of life, liberty, and property — it is wholly inadequate for any other and necessarily creates social injustice.

Hopefully, before we use the fallacy of emotion to promote the unjust and coercive hand of government in matters it was never intended to, we will evaluate and practice our own theocratic teachings that show us how to deal with social inequality and social injustice: preaching the gospel of Christ has more of an effect on the hearts and actions of man to do good than any other means — even the sword of coercion. Man is good and will provide for his neighbor; only the adversary’s plan argued otherwise in justifying coercion to provide for moral action. Government ultimately digresses into tyranny and coercion to obtain its objectives, but this was not how our Constitution was intended. Indeed, John Adams was right, our Constitution was made for a religious and a moral people, and it is unsuitable for any other. Why? Because it takes a religious and a moral people to act individually for the betterment of society, and once government is used to obtain, coerce, and force the moral duty of the individual — social injustice reigns supreme.

The Proper Role of Government: Analysis of Locke and Benson

Proper Foundation

This paper presents the arguments given by John Locke and Ezra Taft Benson for what constitutes the proper role of government. Locke asserts a primary state of nature wherein all men are at perfect liberty to act according to the laws of nature, and that it is government’s responsibility outside the state of nature to maintain the principle of life, liberty, and property. Benson agrees with Locke and promotes the ideals of Frederic Bastiat that explicate the necessary principle of individual rights and duties wherein all government power originates. This paper will show the harmony of Locke’s ideals with those held by Benson, and will also present a short critique and response to the concept of a principled based government.

Government Power and Its Proper Role

There are several powers that Locke argues belong to government. It is first stipulated that all positive law must first gain authority in natural law (2nd Treatise §134). Government is created to secure to the individual his own property (2nd Treatise §124), and it is within the power of government to establish laws that regulate the property “between the subjects one amongst another”; in addition, government has the power to lay taxes to function within the duty that the individual has delegated to it (2nd Treatise §139). Government is also given power and authority to rule in matters of offense and to address injuries, and to legitimately punish the offender for crimes committed against another (2nd Treatise §87, 88). Negatively, government cannot assume a power unto itself, but it must always gain its power from the people (2nd Treatise §136).

The beginning of Locke’s government is in a state of nature where “every man hath a right to punish the offender, and be executioner of the law” (2nd Treatise §8). Every man exists fully within his rights and may do as he pleases, although he does not have the license to destroy himself (2nd Treatise §6). Man is then at natural liberty to establish the bounds of society, “by agreeing with other men to join and unite into a community, for their comfortable, safe, and peaceable living one amongst another” (2nd Treatise §95). This men do in order to “secure enjoyment of their properties, and a greater security against any that are not of it” (2nd Treatise §95). Because man is not able to destroy himself, he is then incapable of allowing society to destroy the individual – society being made of individuals. As Locke states, “any number of men may [establish society], because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature” (2nd Treatise §95). In other words, the establishment of government should not restrict the liberty found in the state of nature.

Ezra Taft Benson and The Proper Role of Government

It is Ezra Taft Benson’s purpose to show that a type of natural law exists wherein government must base its positive law. Contra a legal positivist’s concept of rules, Benson forms a principled foundation for law and government. Every political decision, he argues, “should be based upon and measured against certain basic principles regarding the proper role of government. If the principles are correct, then they can be applied to any specific proposal with confidence” (Benson 126). But what is this proper role of government? The proper role of government is rooted in the concept that life, liberty, and property exist eternally in a state of nature, and that the individual is the strict source of all political power.

While holding a very Lockean concept of government, Benson actually quotes more from Fredric Bastiat’s The Law than he does from Locke’s Treatise. Benson’s fundamental principle of law holds the concept expressed by Bastiat that “life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty and property existed beforehand that caused men to make laws in the first place” (Bastiat 2). To Benson, government is a creation of man that was built to secure the eternal and natural right of life, liberty, and property – the same basic belief held by Locke.

Benson further elaborates that government has no power but what the people may delegate to it. As Benson expressed,

The important thing to keep in mind is that the people who have created their government can give to that government only such powers as they, themselves, have in the first place. Obviously, they cannot give that which they do not possess. So, the question boils down to this. What powers properly belong to each and every person in the absence of and prior to the establishment of any organized governmental form? A hypothetical question? Yes, indeed! But, it is a question which is vital to an understanding of the principles which underlie the proper function of government (Benson 130).

To Benson, government is nothing but a delegation of duties from the individual to government. If the individual may not act personally in a particular instance, then he has no ability to grant that power for government to act in his stead. This appears to be what Thomas Paine had in mind as well,

"All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are no other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either...

"Government is not a trade which any man or body of men has a right to set up and exercise for his own emolument, but is altogether a trust, in right of those by whom that trust is delegated, and by whom it is always resumable. It has of itself no rights; they are altogether duties" (Paine 285, 289).

Locke, Paine, Bastiat, and Benson appear to have the same overall concept. Namely, that government is a creation of man necessary to protect life, liberty, a property. As Benson says, “the most important single function of government is to secure the rights and freedoms of individual citizens” (Benson 126). Any actions committed beyond these duties and functions in protecting natural rights constitute usurpation and tyranny. The government cannot take from one person to allocate wealth to another, because – at the basic individual level – an individual has no power to take of his neighbor’s excess of goods to redistribute them to someone in need . As such, the individual cannot then grant to government a duty he does not himself possess.

Revolution

Locke accepts revolution on specific grounds. Whenever government “attempts, exercising a power the people never put into their hands (who can never be supposed to consent, that any body should rule over them for their harm) do that which they have no a right to do,” then there are no “positive laws of men” that can make “a man so to abandon himself, as to neglect his own preservation” (2nd Treatise §168). Simply stated, once government has acted outside of its constituted bounds, the people are no longer required to abide by a positive law that violates their life, liberty, or property. However, people typically suffer the abuses of government beyond a single instance of usurpation. Generally speaking, the people must suffer substantial abuse before a revolution is a viable possibility.

Thomas Jefferson wrote in the Declaration of Independence that,

"all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

This is a very Lockean concept of revolution. The individual is apt to bear the wrongs of government for a long while, before he ever attempts revolution. As Locke says, “revolutions happen not upon every little mismanagement in public affairs” but after a “long train of abuses, prevarications, and artifices” that have secured in the public mind any hope of ever changing government’s usurping and tyrannical course (2nd Treatise §225). In short, when government is recognized by the public at large to fail in its function to fulfill its ultimate duty of protecting the individual’s property, then revolution is appropriate.

Objections and Arguments

Legal positivists reject this principle theory presented by Locke and Benson. Political theorists like H.L.A. Hart argue that there is no ethereal moral compass or principle wherein we should adhere to when establishing government or passing laws, but that basic societal adherence to accepted rules under a legal system constitute legitimate government (Hart). Unlike the principle of inherent and inalienable rights in natural law, legal positivism posits that individual rights are only what society accepts through scripted and codified law. So long as society accepts a law, it is legitimate – even if the end of the law violates the individual’s life, liberty, or property.

I personally adhere to the Lockean concept of government – as well as to Benson’s proper role of government. More than just social acceptance, a principled foundation is necessary to maintain equal justice under the law. In other words, positive law is not sufficient on its own and must adhere to a moral natural law. By this I mean that just law is not merely obtained through a majority’s consent and adherence to a legal mechanism, but through holding law to a principle and higher moral standard. As the naturalist Ronald Dworkin argued, relying solely on scripted law is fool-hardy, especially when the foundation of government rejects any moral principle to guide the ship-of-state through times when the law is ambiguous or unjust (Dworkin). Law must necessarily adhere to a principle. In Benson and Locke’s case, that principle is the protection of the natural and individual right to life, liberty, and property.

Works Cited

Bastiat, Frederic. The Law. Irvington-on-Hudson, N.Y: Foundation for Economic Education, 1998. Print.

Benson, Ezra T. "The Proper Role of Government." Enemy Hath Done This. Salt Lake City: Bookcraft Pubs, 1992. 125-48. Print.

Dworkin, Ronald. Taking rights seriously. Cambridge: Harvard UP, 1977. Print.

Hart, H.L.A. The Concept of Law. Oxford: Clarendon, 1961. Print.

Paine, Thomas. Thomas Paine reader. Harmondsworth, Middlesex, England: Penguin Books, 1987. Print.

Natural Law, Positivism, & Civil Disobedience: An Analysis of Counsel Given by General Authorities of the Church of Jesus Christ of Latter-day Saints

Note:

This is the culmination of many, many hours of research, yet I am nearly and completely unsatisfied with it. I wrote this for the honors Philosophy 300 class (philosophical writing), and I presented it before the class last week. I hesitate to post this yet, because it is not remotely complete. First, I have a more thorough retort concerning the arguments I present against Natural Law than what I address herein. Second, many sections are inadequate and do not fully portray the idea intended. Third, I do not feel I adequately addressed how positivist law exists in Natural Law without existing as Positivism itself. Fourth, I do not fully address Kretzman's argument against positivist claims against the non-est-lex slogan. Fifth, I almost completely disagree with my conclusion. In reality, there is more than abundant evidence that illustrates whether the Church is more naturalist or positivist in its doctrine and policy -- I simply ran out of time before my deadline and I was lazy. When I get more time -- possibly in the next three years -- I will revisit it. I personally consider this a decent start in my life-long pursuit to find a logical, eternal, and spiritual understanding of the principles and philosophies of liberty.

I am open to any and all suggestions and arguments. Please comment, if you can actually make it through all of this.

-- Shiloh

Natural Law, Positivism, and Civil Disobedience: an Analysis of the Counsel Given by the General Authorities of the Church of Jesus Christ of Latter-day Saints.

Shall we be such fools as to be governed by [the government’s] laws, which are Unconstitutional? No! -- Joseph Smith (Teachings)

Introduction

Natural law theory has endured multiple revisions. From Aristotle’s natural justice to Dworkin’s theory of principles, natural law has born the criticism and evaluation of the greatest philosophical minds. What is natural law? There is no absolute definition. One definitive thread that has endured in various forms since Aristotle is the slogan of natural law: Lex Injusta Non Est Lex (an unjust law is not a law). In his paper, Lex Iniusta Non Est Lex, Norman Kertzmann explores the historical foundation of the natural law slogan to find its author. Kertzmann finds no absolute author, but he does find a way to solve the contradiction that critics say non-est-lex presents.

The slogan of natural law finds sharp critics among legal positivists. H. L. A. Hart, a champion of positivism, uses the non-est-lex slogan to show the paradox of arguing for something that exists but does not exist. Positivism’s adherence to scripted — or codified — law rejects natural law’s claim to non-est-lex. If, in the severity of injustice, a positivist must rebel against enacted law, that individual must follow certain criteria for changing it. In positivism, even civil disobedience must follow certain rules.

The difference between naturalism and positivism makes the issue of morality difficult to evaluate, especially for religious organizations. The Church of Jesus Christ of Latter-day Saints (the Church) has defined many of its own policies through interaction with natural and positivist laws. Many Church policies are naturalist, while others reflect positivist sentiments in exhorting its members in matters pertaining to government. While some counsel from the Church has appeared to support the non-est-lex slogan, other counsel is positivist.

This paper includes three sections: (1) natural law and positivism, (2) civil disobedience, and (3) religious requirements of non-est-lex. In this paper I will define natural law under a broad political application, and will contrast it with legal positivism. I will address how these two philosophies treat civil disobedience in regards to unjust laws. This paper presupposes a distinct definition and understanding of what is just and unjust and what is moral and immoral – although such distinctions I do not discuss in this paper. I will answer whether civil disobedience is possible in natural law, and address what conditions are required for civil disobedience in legal positivism. It is not my intent to question whether natural law is an adequate foundation for jurisprudence but to answer whether the individual has a legitimate non-est-lex claim under natural law. Furthermore, I will evaluate various arguments from the Church leaders concerning obedience to the law and possible justification for non-est-lex in regards to the Twelfth Article of Faith. Finally, I will conclude that an absolute distinction in Church doctrine between naturalism and positivism is impossible.

SECTION 1

What is Natural Law?

Natural law is a theory explaining how universal moral laws exist by nature – even if not initially perceived by human understanding. Naturalist philosophers have presented natural law differently. Most studies of natural law originate through Aristotle and Cicero; however, it was Aquinas’ arguments for natural law that were popularized and adopted by the Catholic Church. Aquinas categorized law into four types: (1) the eternal law (mind of God), (2) the divine law (the appearance of the eternal law to man), (3) the human law (man’s positive law), and (4) the natural law. Aquinas spoke of a natural moral law whereby all men are bound. This universal moral law, he argued, was perceivable through a divinely placed innate state of heightened reason. As such, Aquinas argued that man by reason could demonstrate the existence of God and of his moral code. Because of the heightened state of reason that God gave man, revelation was unnecessary to perceive this universal moral law.

Sir William Blackstone argued that natural law was the moral basis of all law – political or otherwise. Positivist law, or statutory law, existed as an extension of perceivable natural law. All statutes were to be extracted and enacted on principles of natural law. When social problems arise and there is no perceived natural law to resolve the issue, statutory law has full power to rule in the matter; however, when natural law is perceived, any violating statute dissolves as though it never existed.

What is Legal Positivism?

Legal positivism rejects natural law’s claim that there is a necessary moral basis for law, but asserts that laws are merely rules that man agrees to live by. John Austin coined the creed of positivism: “The existence of law is one thing; its merit or demerit is another” (Austin). H.L.A. Hart, an advocate of positivism, argued that laws restricting theft, violence, and deception are necessary for any legitimate social structure; furthermore, any such social structure must also have a system for recognizing and enforcing those rules. Hart argued that any legitimate social structure has primary and secondary rules. Primary rules are laws that enforce individual obligations and duties. Secondary rules clarify any ambiguous or confusing primary rules. There are three secondary rules that accomplish this: rules of recognition, rules of change, and rules of adjudication. The rules of recognition identify what primary rules are valid and give the primary rule authority and legitimacy. The rule of change allows new rules to reevaluate and take the place of old rules. The rules of adjudication define important legal concepts and give judges power to punish any violators of primary rules (Hart).

Positivism establishes legal legitimacy of government. Laws are rules that gain legitimacy through social recognition and obedience, through ability to change to social pressures, and through courts that interpret and render codified law. In Hart’s view, inalienable rights in natural law are, at best, ambiguous and, at worst, obsolete. Rights are granted by the government through the legal system, not through some individual claim to a higher moral authority. Because government’s legitimacy rests on society’s acceptance of scripted law, individual rights, in a sense, are at the whim of social approval.

Natural Law v. Positivism: Problems

Problems with Natural Law

There are several arguments against natural law. In fact, many legal philosophers completely dismiss natural law. In acknowledging the unpopularity of natural law theory, Ronald Dworkin, a natural law theorist, observes that “one label. . . is particularly dreaded: no one wants to be called a natural lawyer. [Natural law] seems metaphysical or at least vaguely religious. In any case it seems plainly wrong” (Dworkin 175). In this paper I present the two of the most common objections to natural law, and offer possible solutions. The first objection concerns its universality. Gary North illustrated the universality problem that natural law faces:

Natural law theorists have yet to come up with a solution to this inconvenient fact: reason, meaning the never-proven, always sought-for "right reason" of natural law theory, has not led masses of people to adopt the same system of philosophy, ethics, or religion. Yet the theory rests on the assumption -- never proven -- that rational people can agree on these issues sufficiently to enable society to function both ethically and predictably, meaning rationally (North).

While natural law has yet to give a universal solution to any particular problem, the universality argument is empty. The universality problem hinges on the assumption that all universal facts or truths are apparent or that they are already known and can be demonstrated. This is ridiculous. Because the mind of man has not created the tools necessary to demonstrate the universality a particular moral law, it does not follow that a universal moral law does not exist.

Natural law’s second major objection is its ambiguity. The moral centrist will blame the immorality of society for natural law’s inability to adequately define a universal moral ethic; however, this reeks of pompous self-appreciation and moral superiority. Natural law’s perceived ambiguity may stem from the universality objection. If nothing is physically or demonstrably universal, then universal moral law can be defined any way an individual or society sees fit. This argument may be the most convincing against natural law, especially in arguing against natural law within the political spectrum. Hart is right concerning ambiguous laws: The law, to be law, necessarily communicates what is required (Hart 92). Ambiguity is the death of any law – universal or otherwise.

In answer to natural law’s perceived ambiguity, I offer no solutions. I propose, however, that until the universality of natural law can be shown, that natural law as an acting force remain as a standard for individual morality – a type of categorical imperative.

Problems with Positivism

Dworkin offers a famous critique of legal positivism in his response to H.L.A Hart’s paper, The Concept of Law. In Taking Rights Seriously, Dworkin lists three points of positivism that he claims are its primary tenants: (1) Laws are rules of the community that are legitimized by their pedigree, and not by their [moral] content; (2) Each law, when ambiguous, non-existent, or seemingly not applicable to a specific case, is given to the ruling discretion of the judge; and (3) that each individual is legally obligated in a way that requires the individual to act or be acted upon by society (“Taking”).

The first of these points addresses the necessary mechanism needed to establish legitimacy in government. While Dworkin believed a social moral principle was the best legitimate foundation for law, Hart’s positivist view establishes legitimacy in law and government through a previously chosen and socially accepted legal system. Laws are rules that gain legitimacy through social recognition and obedience, through ability to change to social pressures, and through courts that can render and interpret primary rules when needed.

Dworkin’s second criticism of positivism attacks the positivist law itself. Even the finest and most intricately designed laws can be interpreted in various ways. Relying solely on scripted law is fool-hardy, especially when the foundation of government has rejected any moral compass to guide the ship-of-state through times when the law is ambiguous. Positivists offer no real solution to this critique except to lambast natural law for the same inherent problem of ambiguity.

The concluding argument against positivism rests in the individual’s legal obligation to society at large. Legal positivism requires the individual to follow certain rules and adopt certain behaviors within society. While the natural law can exist when it is not perceived, positivist law must be codified and publically known. Positivism requires absolute obedience to codified law. The moment society fails to recognize scripted laws, government loses legitimacy. This is why strict obedience to the law is so necessary within positivism, even if the laws are unjust. Furthermore, positivism defines what is socially acceptable but rejects any fundamental principle or moral behind the law. Dworkin argued for a principle behind legal actions, while Hart argued for a rule that reflected the social acceptance of the people; ironically, the result and public manifestations of these two competing philosophies are nearly identical.

SECTION 2

What is Civil Disobedience?

Is there a moral obligation to obey every law, or are we only required to obey some laws? There are many cases for civil disobedience, but to understand these we have to define what civil disobedience is. John Rawls defines civil disobedience as “a public nonviolent, and conscientious act contrary to law usually done with the intent to bring about a change in policies or laws to the government” (Rawls 250). Civil disobedience requires conscious action to change public policy or law. We will first speak of civil disobedience within legal positivism, and then see if civil disobedience is compatible with non-est-lex.

Legal Positivism

Positivism requires absolute submission to scripted law. Unlike natural law, positivism does not concern itself with what is right or wrong, moral or immoral, just or unjust, but only with what society will accept or not accept. This is not to say that society is necessarily amoral, but that the basis of scripted law is a reflection of what is socially acceptable. However, primary and secondary rules occasionally fail to provide just laws. In these rare cases, civil disobedience is justified; however, there are necessary steps to follow and objectives to achieve.

In A Theory of Justice, John Rawls outlines positivism’s requirements for civil disobedience. First, civil disobedience is consciousness of the act. Second, civil disobedience must be political. This is accomplished in three ways: justification, audience, and goal. The individual justifies his actions of for civil disobedience through changing society’s attitude toward an unjust law. Furthermore, this is only accomplished if the act of civil disobedience has a public audience. No justifiable civil disobedience is performed in secret. Finally, in awakening the moral sense of the people, the individual must remain strictly non-violent (Rawls).

Natural Law

Naturalism follows a different course than positivism. Whereas civil disobedience is possible in positivism, it has no place in natural law. The slogan of natural law, lex iniusta non est lex (an unjust law is not a law), is a source of debate between positivists and naturalists. Three of positivism’s greatest defenders – Austin, Benthem, and Hart – ridiculed the non-est-lex slogan for the contradiction of saying something exists that does not: “For an unjust law is obviously a law – it is simply an unjust one” (Russell 435).

Norman Kretzmann, a naturalist, defended the non-est-lex slogan against positivist naysayers. Kretzmann showed both evaluative and non-evaluative inclusion conditions. This means that an

“unjust law may be a law in a merely technical sense, in virtue of meeting certain –non-evaluative inclusion conditions that are required for its promulgation as a law, but it may still fail to be a genuine instance of a law if it fails to meet certain evaluative inclusion conditions that are required of any genuine law” (Russell 436-7).

To a naturalist, ‘civil disobedience’ does not exist. The instant a statute fails to include all necessary metaphysical conditions of justice, the unjust law ceases to exist. There is no ‘disobedience’ to an unjust law, because an unjust law is not a law. Furthermore, it is nonsensical to a naturalist to see an individual act in ‘compliance’ with a law that does not exist, especially when that individual acts in violation of his own justice.

The positivist finds necessity in making his civil disobedience public, but the naturalist has no such prerogative. While the positivist seeks to correct a form of injustice, the naturalist – in perceiving no unjust law – can only see the ignorance of an individual who will work against his own justice by following a law that does not exist.

Positivism holds an intrinsically pessimistic view of society. Positivism presupposes that law is built on the assumption that society’s natural state is chaos. Codified law is the adhesive that binds a social structure together. However, natural law is inherently optimistic in its view of society, and builds on the assumption that society’s natural state is order – not chaos. While positivism looks on the non-est-lex slogan as the ultimate tool of social destruction by allowing the individual and masses to become a ‘law unto themelves,’ the naturalist appeals to non-est-lex as the building block of order and justice by creating a free-market of law and justice.

Allowing non-est-lex within society will not prove society’s destruction; neither will it result in anarchy like the positivists say. Opponents to non-est-lex claim that it creates an arbitrary standard where every individual has the ability of doing whatever they please, but this is not so. Natural law is a universal code and standard. The Declaration of Independence promoted three inherent naturalist rights: life, liberty, and the pursuit of happiness. Under natural law, any violation of inherent rights is punished accordingly. There is no freedom in natural law to perform an unjust act. Only through injustice does a man become a law unto himself, and in his moment of injustice he loses his protection of the natural law.

SECTION 3

The Twelfth Article of Faith

We believe in being subject to kings, presidents, rulers, and magistrates, in obeying honoring, and sustaining the law.

The Twelfth Article of Faith is a Church standard regarding the members’ obligation to be subject to the laws of the country they reside in and to submit to their leaders. Many interpret this Article of Faith to mean absolute compliance to all laws enacted within a political mechanism, while others have used this article to justify a higher principle of justice and morality.

Questions arise concerning whether the Twelfth Article of Faith gives any room for a non-est-lex philosophy or for civil disobedience. If the Twelfth Article of Faith offers room for these, how so and what are their limits?

Positivist Interpretation

The positivist’s claim on the Twelfth Article of Faith calls for absolute obedience to all laws enacted by the political leadership. Disobedience to enacted laws is a strict violation of this Article. Unjust laws are legally repealed by the legislature. Unjust laws are not merely dismissed by an individual who disagrees with the enacted law. This interpretation is justified in light of the Doctrine and Covenants (D&C) 58:21-2: “Let no man break the laws of the land, for he that keepeth the laws of God hath no need to break the laws of the land. Wherefore, be subject to the powers that be. . .” This appears to contradict the naturalists’ slogan that an unjust law is not law at all. Positivists believe that members of the Church are commanded to obey the laws enacted their by government (laws of the land), and that in obeying the law of the land (even an unjust law) they will not break the laws of God – or a higher moral law.

An analogy used by positivists to interpret D&C 58: 21-2 is that of a soldier who obeys an order to kill in a time of war. Leaders of the Church have declared that soldiers are not morally accountable for following orders to kill their enemies in a time of war, but that the accountability of an unjust command falls on the leader(s) who gave the order. As President Gordon B. Hinckley stated, “God will not hold men and women in uniform responsible as agents of their government in carrying forward that which they are legally obligated to do” (Hinckley 80). Positivists argue that the citizen – like the active soldier – has immunity for following an unjust order (law) legislated by his government. The individual’s accountability is to obey the scripted law, and it is the legislator accountability to enact just laws. The important thing is for the citizen to be honest and obedient to all established laws – good and bad – until the time comes when an unjust law can be changed legitimately through the political mechanism of government. At this time, the citizen becomes responsible for acting in such a way as to change the unjust law. Until then, the individual is justified in obeying an unjust law. In this strict obedience to the law, even an unjust law, the positivist finds himself obedient to the Twelfth Article of Faith and the laws of God.

Naturalist Interpretation

Natural law has a different view of the Twelfth Article of Faith. To the naturalist, D&C 58:21-2 is qualified in D&C 134:5: “We believe that all men are bound to sustain and uphold the respective governments in which they reside, while protected in their inherent and inalienable rights by the laws of such governments; and that sedition and rebellion are unbecoming every citizen thus protected. . .” (emphasis added). While the naturalist recognizes the need to obey the law of the land and to be subject to the powers that be, he still recognizes that sedition and rebellion have their place when a government no longer protects the inherent and inalienable rights of the people. Furthermore, the naturalist must qualify and differentiate between a just and an unjust law. The naturalist member is concerned with differentiating between the two forms of law that represent just and unjust laws in D&C 98: the law of the land and the law of man.

And that law of the land which is constitutional, supporting that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me. . .

And as pertaining to law of man, whatsoever is more or less than this, cometh of evil. . .

And I give unto you a commandment, that ye shall forsake all evil and cleave unto all good, that ye shall live by every word which proceedeth forth out of the mouth of God. (D&C 98:4-7, 10-1)

The naturalist further recognizes that the law of the land is conditional and based on the constitutionality of law that promotes the rights and privileges of all mankind. Anything more or less than that which promotes the rights and privileges of all mankind is the law of man and is evil. It is within the law of man that the naturalist finds unjust law. Furthermore, the command given by God, the ultimate principle giver, is to forsake all evil – even the law of man! This reading of D&C 98 is in line with Aquinas’ first principle of natural law: good is to be done and pursued, and evil avoided (Aquinas q94, a2, p. 47). The naturalist, in this sense, is obligated to avoid all evil – even if it is scripted law – if the enacted law violates the rights and privileges of all mankind. President Joseph F. Smith clarified this concept when he said,

“It seems to me that this makes this matter so clear that it is not possible for any man who professes to be a member of the Church of Jesus Christ of Latter-day Saints to make any mistake, or to be in doubt as to the course he should pursue under the command of God in relation to the observance of the laws of the land. [God] will hold [lawmakers] responsible if they will pass unconstitutional measures and frame unjust and proscriptive laws. . . If lawmakers have a mind to violate their oath, break their covenants and their faith with the people, and depart from the provisions of the constitution, where is the law, human or divine, which binds me, as an individual, to outwardly and openly proclaim my acceptance of their acts?” (Gospel 406)

Both the naturalist and positivist believe that lawmakers are accountable for passing unjust and proscriptive laws; however, these competing theories vary in regards to the level of accountability ascribed to the individual when confronted with an unjust law. The positivist must maintain strict adherence to the law (leaving sole accountability to the lawmaker for passing unjust legislation, until the time comes when the individual may affect legislative change), but the naturalist takes upon himself a portion of accountability in how he responds to an unjust law. The naturalist will remain subject to kings, presidents, rulers, and magistrates, and he will obey, honor, and sustain the law by only adhering to just laws that promote the freedom and liberty of all people. This appears to be in line with President John Taylor’s interpretation of D&C 98: 4-6.

“Taking this nation as an example, all laws that are proper and correct, and all obligations entered into which are not violative of the Constitution should be kept inviolate. But if they are violative of the Constitution, then the compact between the rulers and the ruled is broken and the obligation ceases to be binding. Just as a person agreeing to purchase anything and to pay a certain amount for it, if he receives the article bargained for, and does not pay its price, he violates his contract; but if he dos not receive the article he is not required to pay for it” (Taylor).

This reading of President John Taylor carries the natural law slogan: an unjust law is not a law. If a codified law violates the purpose of the Constitution, then there is no obligation to obey – the obligation ceases to be binding. However, President Taylor, in keeping true with natural law principles, gives that all laws that do maintain the rights and privileges of all mankind must be followed. This reading is consistent throughout every passage of the Doctrine and Covenants presented in this paper.

Conclusion

The natural law and positivist philosophies may never come to terms. The philosophical battle concerning the direction of government and the legitimacy of law may never achieve a resolution. Natural law and positivism are polarized, and each rejects the other’s premise. The bi-conditional relationship of the individual to society is hotly contested. Does the individual have the ability to protest? While positivism gives stipulations for civil disobedience, natural law rejects the law outright as though it does not exist. Civil disobedience is impossible in natural law, because there is no disobedience to a law that does not exist.

The Church of Jesus Christ of Latter-day Saints maintains political neutrality; however, the membership of the Church is often polarized. Whether the Church leadership intentionally presents doctrine in a naturalist or positivist way, the membership is quick to interpret it as such. The same latter-day scriptures and prophetic counsel are interpreted in two different ways. Therefore, it is indeterminable whether Church doctrine absolutely supports one theory or another.

Works Cited

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Hinckley, Gordon B. "War and Peace." Ensign May 2003: 78-81. Print.

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