According to the natural law tradition, one of the conditions of a true law is that it be promulgated or made known. There is no such thing as a secret law. However, there are many ways in which a so-called law may fall short of being authentically promulgated. The most obvious way is that the so-called law is literally secret. Public authorities may refuse to divulge to the public the rules and regulations by which they will be judged.
Consider the ordinances against revealing state secrets in the People's Republic of China. Astonishingly, many of the rules and regulations about state secrets are themselves secret, so there is no way to know whether or not one is in violation. Trials held under the law are also held in secret. Among those punished have been Shi Tao, a newspaper reporter, sentenced in 2005 to ten years in prison for "illegally supplying state secrets abroad";' Tohti Tunyaz, a University of Tokyo doctoral student studying Chinese ethnic minority policy, sentenced in 1998 to eleven years in prison for "illegally procuring state secrets"; and Rebiya Kadeer, an advocate for the Muslim Uighur minority, sentenced in 1999 to eight years for "illegally providing state secrets overseas." What were their crimes -- what did they actually do? Tao had posted online a summary of official restrictions on Chinese press coverage of events related to the fifteenth anniversary of the Tienanmin Square massacre. Tunyaz had retrieved fifty-year-old records from a library. Kadeer had mailed Chinese newspaper clippings to her husband in the United States.
But the expression "secret law" should also be extended to laws that are not literally secret, but secret in effect. Consider vague enactments, rules that are cast in language so elastic that no one is sure of its meaning, or the meaning of which is unpredictably extended through excessively supple rules of interpretation. During the past century this sort of elasticity has been a prominent feature of all of the totalitarian legal codes. As Alexandr Solzhenitsyn wrote of the infamous Article 58, “Wherever the law is, crime can be found.”
The glories of elasticity are often trumpeted even in the liberal democracies that fancy themselves avatars of rule of law. In the United States, they are sung in paeans to the so-called "living" constitution, and in the abominable theory that "law is whatever judges say it is." But liberal democracies have invented a new failure of promulgation, a novel kind of "secret law" for which credit is theirs alone. For promulgation can fail -- the rules can be unknown -- not only when they are literally secret, retroactively applied, excessively vague, or arbitrarily interpreted, but even when there are simply too complex. To put it another way, the very impulse to turn everything into law can be prejudicial to law, for then the rules become so vast, multiform, and changeable that no one can learn them, much less grasp what they mean.
In 2010, investigators for the U.S. Treasury Department, pretending to be taxpayers, found that Internal Revenue Service Centers set up for taxpayer assistance gave either no answers, incomplete answers, or incorrect answers to their questions 43 percent of the time. The root of the problem is not simply that taxpayer assistance workers are insufficiently trained, but that the tax code has become too complex for anyone to learn as a whole.
The community has entrusted the power of making laws to Congress, but Congress long ago gave up the principle delegata potestas non potest delegari, "the one to whom a power is delegated may not delegate it to another." Congressional enactments alone run to three or four thousand pages, but if we add in the regulations drawn up by the administrative agencies, the tax code comes to 20 volumes. Bear in mind that taxation is only one of the fifty subject headings in the Code of Federal Regulations, now tens of thousands of pages in length.
As early as 1788, James Madison had foreseen such a possibility. Mutability of the laws is "calamitous," he warned. "It poisons the blessing of liberty itself," for “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
The rule of law, it seems, is not the same as the rule of a multitude of regulations, and there is a difference between publishing the rules and promulgating them. If the law is so copious and profuse that the people cannot take it in, so intricate and involved that they cannot understand it, or so mutable and mercurial that they cannot keep track of it, then it has not been truly promulgated; and so it is not truly law. What does this fact suggest about the legitimacy of the modern administrative state?
A movement sometimes styled “evolutionary ethics” or “evolutionary psychology” takes as its goal the provision of a naturalistic basis for moral judgments. This new naturalist fashion comes in several overlapping varieties. Let us consider the two best-known.
One variety tries to demonstrate that a moral sense has evolved among human beings because it confers a selective advantage. Consider, for example, the human tendency to help out other people, even at some cost to oneself. At first it might seem that a genetic predisposition for such behavior could never have evolved by
natural selection because unselfishness spends resources for nothing; every selfless act reduces the likelihood of passing on the genes that have made one act selflessly. But if the ancestors of human beings already lived nearby to relatives, maybe not. Under those circumstances, the ones most likely to receive aid would be relatives, and for each degree of relationship, there is a certain likelihood that the relative is carrying a copy of the same gene. So even though an act of self-sacrifice reduces the likelihood that I will pass on my own copy of the gene, it increases the likelihood that my relatives will pass on theirs. If my unselfish act helps a sufficient number of such relatives, then the proliferation of the gene in question is assisted even more than it would have been by selfish self-preservation. This is called “kin selection.”
If kin selection really happens, then it might explain the tendency to help out other people. It might even explain why we approve of the tendency. The problem is that it can’t explain whether we ought to approve of it. After all, the fact that we developed one way rather than another is an accident. We help our kin; some species eat their kin. Someone might reply, “That we might have turned out differently is no concern of ours. The fact is that we didn’t. Besides, natural selection has determined not only that we are the way we are, but that we’re happy about the way we are. We don’t need a justification for being pleased!”
Not so fast. We may be pleased about our tendency to render aid, but we are not so pleased about its limits. As a matter of fact, many of our tendencies displease us; consider how appalled we are by our propensity for territorial aggression. Now our tendency to territorial aggression and our propensity to be appalled by it must both belong to the genome. What sense could there be, then, in judging between them? Genes provide no basis for judging between gene and gene. The basis of morality must lie elsewhere.
Another variety of evolutionary ethics tries to show that by considering how we came to be, we will learn more about how we are. According to this view, Darwinism reveals the universal, persistent features of human nature. Why it should do so is very strange, because Darwinism is not a predictive theory. It does not proceed by saying, “According to our models, we should expect human males to be more interested in sexual variety than human females; let’s find out if this is true.” Rather, it proceeds by saying, “Human males seem to be more interested in sexual variety than human females; let’s cook up some scenarios about how this might have come to pass.” In other words, the theory discovers nothing. It depends entirely on what we know (or think we know) already, and proceeds from there to a purely conjectural evolutionary history.
These conjectures are made to order. You can “explain” fidelity, and you can “explain” infidelity. You can “explain” monogamy, and you can “explain” polygamy. Best of all (for those who devise them), none of your explanations can be disconfirmed -- because all of the data about what actually happened are lost in the mists of prehistory.
In the truest sense of the word, they are myths -- but with one difference, which is this: the dominant myths of most cultures encourage adherence to cultural norms. By contrast, the myths of evolutionary ethicists encourage cynicism about them.
In ethics, there are two ways to take human nature seriously. The first is to regard nature as the design of a supernatural intelligence; you take it seriously because you take God seriously. The other is to regard nature (in a physical or material sense) as the reason for all there is. Here you ascribe to matter -- or to some property, process, or aspect of matter -- the ontological status that theists ascribe to God Himself. Natural lawyers follow the first way; naturalists follow the second. Similar names -- radically different meanings.
Nature means something different to the naturalist than it does to the natural lawyer. It has to. He cannot view it as a design, because in his view there isn’t anyone whose design it might be. What is, just is. This is rather unsatisfactory, for no one seriously maintains that the universe had to be just the way it is. There might have been fewer stars, or more. There might have been creatures like us, or there might not. There might not have been a universe at all. Nature, then, is a contingent being, not a necessary being like God, and contingent beings need causes. The naturalist rejects this line of reasoning, or at least limits it. He might concede that each thing in nature needs a cause, but he denies that the entire ensemble of things needs a cause. This exception seems suspiciously arbitrary.
It is easy to see how the first approach can ground ethics. If God Himself is the Good -- the uncreated source of all being, all meaning, and all value in created things -- then inasmuch as his goodness is reflected in the inbuilt purposes of our own design, these purposes are normative. Consider, for example, the inclination to associate in families. This is not the same as a mere desire to do so; indeed, we have conflicting desires, and some people would rather be alone. It would be more accurate to say that we are made for family life, that fitness for family life is one of our design criteria. For humans, then, the familial inclination is a natural inclination. When we follow this inclination we are not acting in the teeth of our design, but in accord with our design. Family is not a merely apparent good for us but a real one, and the rules and habits necessary to its flourishing belong to the natural law.
Or consider the universal testimony of conscience against murder. This is more than a matter of guilty feelings. No one always feels remorse for doing wrong, and some people never do. Nevertheless, the wrong of deliberately taking innocent human life is acknowledged at all times and everywhere, and this too belongs to the natural law.
Notice that both examples concern design. The former concerns the design of the inclinations, as apprehended by the intellect. The latter concerns the design of the intellect itself – we could say of its inclinations -- for we are so made that there are certain moral truths we can’t not know.
How the naturalist view could ground ethics is hard to see. If material nature is all there is, then how could actions have nonmaterial properties like right and wrong? How could there be true moral “law” without a lawgiver? Perhaps it would be like the “law” of gravity -- a pattern that we cannot help but enact, a force to which we cannot help but yield. But in that case, “you ought to” would mean the same thing as “you do.” Stones do not deliberate about whether they “ought” to fall.
I enjoyed your recent blog post on good libertarianism, as opposed to the sort of libertarianism which sees liberties as indeterminate so that its advocates can do as they please.
However, I wonder why you accept the term "libertarianism" for the licentious version. Is it simply a matter of addressing people as they call themselves? Given your description, perhaps its advocates should be called “libertines.” They might even agree.
I’m glad you enjoy the blog, and you make an excellent point. Just as you guessed, I’m calling people what they call themselves. Unfortunately, the number of people who use the term “libertarian” in the libertine sense seems to be greater than the number who use it for the moral defense of true liberty.
Another problem is that libertarian organizations are populated by libertarians of both kinds, and the libertines have the upper hand. The Libertarian Party, for example, says that because “abortion is a sensitive issue” and “people can hold good-faith views on all sides,” “government should be kept out of the matter, leaving the question to each person for their conscientious consideration.” In other words, killing unborn babies should be legal, and people who hold good-faith views on the other side should shut up. This is a perfect example of the sort of fraud I criticized in the post “How Not to Have Clean Hands.”
Good libertarians should ask themselves why they should make common cause with libertines. I think they are being suckered, and they need their own organizations. I can think of a model or two.
A few days ago I had a call from my brother. When I told him that my studies in seminary were going well, he was moved to tell me he had lost his faith and had been an apostate for years.
This was devastating to hear. Even after admitting his apostasy he still tried to praise me for becoming a pastor. His inconsistency is hurtful and confusing. Most of me wants to not call him my brother any longer, as in many ways he simply is not anymore. But a part of me is honestly intrigued by this, and I try to understand how apostates get to the place they are.
He says being a "hardcore atheist" and a "skeptic" is fundamental to who he now is -- it sounded like someone coming out of the closet. I can imagine original sin can do that to a person. But still.
I know I do not have all the reasons on the planet to back things up on my end as a faithful Christian. How would you respond to someone like my brother, who says things like ...
I’ll try to answer your concluding question, but let me respond to a few other things too.
"Even after admitting his apostasy he still tried to praise me for becoming a pastor. His inconsistency is hurtful and confusing." Perhaps your brother is less inconsistent than you think. Even though he thinks your faith a delusion, he admires you for giving your life to what you think is true. Perhaps something deep down even whispers to him that it is true after all. Even if he is inconsistent, accept his compliment as a compliment, rather than viewing it as an insult. It is not you he is rejecting.
"Most of me wants to not call him my brother any longer, as in many ways he simply is not anymore." This statement comes from your hurt, not from the reality of the situation. Though he is no longer your brother in Christ, he is still your natural brother, and in Christ, you should love him no less. He has not cast you off; why should you cast him off?
Besides, no matter what he says now, for all you know he may some day return to the faith. Your love for him may be what he needs in order to do so. Stay in relationship with him. Pray for him without ceasing.
"I try to understand how apostates get to the place they are." They get there by a variety of routes. How did he get there? You could ask him! Why don’t you?
"How would you respond to someone like my brother, who says things like..." Whatever he says, the most important thing to understand is the difference between honest questions and smokescreens. This requires discernment, and God’s help.
Sometimes people ask questions or raise objections because they want answers or solutions. When that happens, the proper response is to try to provide them.
But sometimes people ask questions or raise objections because they want to deflect honest conversation into rabbit trails, or avoid it altogether. When that happens, the proper response is to dissipate the smokescreen. For example, you might ask your brother whether he would change his mind if you were able to answer all of his objections. Suppose he were to answer “No.” Then you might point out that since his objections to faith are not his real reason for rejecting it, the two of you don’t need to waste time on them – and you could ask him what he thinks his real reason is.
"... things like 'I just believe in Reason. I believe in things based on evidence and I'm entirely convinced atheism is the truth. You have your faith and I believe in evidence. Any conversations we have are going to end right there."' That is a false way to frame the issue. Faith and reason are not adversaries, but partners, like the two wings of a bird. Your brother is choosing reason without faith, which cannot even explain why reason is reasonable. You, I hope, are choosing reason together with faith.
I say “I hope” because I don’t know your family background. It may be that the faith which your brother is rejecting is a mistaken, fideistic faith which does view faith and reason as adversaries. Fideism, however, is not Christian doctrine, but a Christian distortion or heresy.
"... like 'I love talking about religions. But they are all wrong -- I am way past conversion. Don't try to talk me into anything. I'm just way past that stuff.'" If your brother doesn’t want to hear arguments for the faith, then don’t give him any. What good would it do to browbeat him? Don’t indulge him in “talking about religions”; he has already made it clear that this is merely an amusing game for him. Do try to understand why he really rejected the faith – but remember that the reason he gives himself, or that he gives you, may not be the real one. He may not know the real one.
Christians have crises of faith; atheists have crises of faithlessness. I once met an atheist who boasted when he was sober of ruining the faith of his students, but who told me after a few glasses of wine how religious he was. So in the meantime, pray to be ready for that moment of crisis when your brother does want to talk about God. And pray that when that happens, he will tell you.
"... like 'Of course it doesn't matter that I was baptized. That was entirely insignificant to me.'" Baptism is objectively significant because something really happens. When your brother says it is insignificant “to him,” what he means is that he subjectively rejects that significance. And he does reject it. You don’t need to argue with him about what you both know to be true.
... like 'Of course atheism is true, and you know it ....'” You might ask, “Suppose I said ‘Atheism is false, and you know it. Would you find that convincing?” If he says “That’s different,” simply ask him to explain the difference. Let him give the answers. It sounds as though he may have been making you give them.
".... like 'I just have one less god than you.'" In a way, this statement is encouraging, because by making it, your brother is conceding that he has a god. He is confessing that there is something to which he bows down, something for which he is prepared to give up everything else. Of course it is a catastrophe that the god that he worships is a false one, but for an atheist to say “I don’t worship your God” is much more honest than to say “I don’t have any gods.” Never despise honesty.
Do your brother the courtesy of taking him at his word: Ask him what his gods are. He may be surprised by the question. He may never have asked it of himself. Not many people have enough self-knowledge to know who or what their gods are. For example, someone may glibly say “My god is social justice,” though his god is really the social approval he gets for saying so.
"I am stuck with the fallout our family will face when he reveals his apostasy publicly. I need to protect myself and my family and prepare them for the spiritual challenge that will come." I am not sure how to reply, because I don’t know what you mean by protecting your family from the fallout and the spiritual challenge.
By the fallout, you may mean the anxiety your family will suffer for your brother’s soul, the pain it will suffers because it thinks he has betrayed it, or the scandal it will suffer when friends of the family find out. All very different things.
By the spiritual challenge, you may mean the challenge of loving a brother who no longer shares with you the foundation of all love, or the possibility that some members of your family will themselves begin to doubt. Or that you will.
Forgive me: Because I am a teacher, I tend to take everything as a question, even if it isn’t one. You may only have been expressing your sadness.
I will pray for you, your brother, and your family. If you think of it, pray for me too.
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The law is reluctant to criminalize an act unless it can be framed in terms of the harm the act causes to others. Although this principle is often credited to John Stuart Mill, he does not deserve the credit. Versions can be found in Aristotle in the fourth century B.C., and in Thomas Aquinas in the high middle ages.
The difficulty is that many different versions of harm principle compete in the public square, and each gives a different answer to questions such as what sort of act is really harmful and how harmful it is. Mill was the author, not of the generic harm principle, but of an influential, dangerous, and highly misleading brand of harm principle.
How did he promote his brand? Mainly by pretending that it was the only one on the shelf. Consider his arguments against Lord Stanley, who wanted to prohibit the sale of strong liquors. Just for the record, I disagree with Lord Stanley concerning the prohibition of alcohol. However, I think arguments like Stanley’s should be answered, not merely ruled out of order, as Mill tries to do.
For the truth is that both men couched their arguments in terms of harm. As Mill's own quotations make clear, Stanley held that the sale of strong liquors harmed him as a representative citizen in four ways: (a) by endangering his security, (b) by creating a misery that he was taxed to support, (c) by tempting him to conduct which would threaten his moral and intellectual development, and (d) by weakening and demoralizing society, from which he had a right to claim mutual aid and intercourse. Now there are many legitimate ways to argue against Stanley. For example, one might argue that in this particular case, prohibition would cause greater harms than it prevented. Yet Mill pretends that Stanley was not speaking of harms at all – that he merely demanded the right “that every other individual act in every respect exactly as he ought.”
How could Mill get away with such preposterous misrepresentation? By definitional sleight of hand. Mill thinks there is a large, easily identifiable class of acts which have no effects on other people at all. The way he arrives at this conclusion is simply to redefine most harms – including those which Stanley mentions -- as non-harms. For in most cases (he is a bit inconsistent), Mill assumes:
Although all of these harms are real, Mill persistently resorts to the fiction that he is mapping out "that portion of a person's life which affects only himself."
By the way, he also ignored the troublesome fact that harms cannot be weighed in a vacuum. Just how much harm a particular line of conduct is likely to bring about depends on the context in which it takes place. For instance, how much harm might be caused to others by my riding a motorcycle without a helmet? That depends on such things as whether I have a family that counts on me for love, counsel, and financial support, what other duties I may have that my death would prevent me from fulfilling, whether I pool my risks with others through private or social insurance, and whether those who see me injured are ethically bound to render aid.
Mill’s latter-day followers go much further than he did. As we have seen he opposed only the criminalization of so-called self-regarding acts. Our would-be Millians oppose “judging” or discouraging them in any way. On this point, surprisingly, he was on the side of moral conservatives. Not only did he admit that some of the acts he called self-regarding may be morally wrong, but he thought that morally wrong self-regarding acts may and even should be discouraged, and in all sorts of ways.
For example, he thought that we should be far more willing to argue with those who commit them than common notions of courtesy permit; that we may avoid the society of such persons; that we may warn others against them; that we may give them last place in the distribution of those benefits to which nobody is entitled as a matter of right; and that we may warn them ahead of time that this will be one of the consequences of our disapproval. Today’s Millians tend to forget all of this.
But that is what happens when one reasons recklessly. Careless arguments do not attract followers through what is careful in them, but through what isn’t. Is it surprising, then, that each new wave of followers is more reckless than the one before?
Recently I discovered that three of the links to videos of my talks were broken. I've set the fractured bones, and the three convalescents are as follows. If you discover any other broken links at this website, dear reader, please let me know.
Annual Conference of Courage (the Catholic ministry to persons with same-sex attractions), 2013
Veritas Forum, University of Wyoming, 2012
Interviewed by Marcus Grodi, EWTN, 2005
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