Legal Positivism and the Attempt to Remake Reality

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Oliver Wendell Holmes, Jr., circa 1930. Edited...

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Why did the United States Supreme Court reverse over 1500 years of legal tradition and create an almost unlimited right to abortion? Later judicial rulings extended the right through the third trimester of pregnancy if a doctor signed a statement to the effect that a woman’s physical and/or mental health is endangered. Even Western Europeans outside of the U. K. have been shocked by the breadth of U. S. abortion laws.

Why did a California court reverse thousands of years of tradition and support same-sex marriage (later the state legislature made a court ruling unnecessary)? Why did federal judges, who ruled like dictators over broad swaths of the South in the 1960s and 70s, force children to get up at 4 a.m. to go to schools many miles from their neighborhood to achieve “racial balance,” a social engineering scheme that has been a dismal failure?

The arrogance of judges who wish to remake reality in their own image is due, to a large extent, to legal positivism. This holds that law does not gain its legitimacy in being consistent with the natural law, but that laws are simply products of legislative or judicial action. St. Thomas Aquinas‘ eternal law, natural law, and positive law is whittled down to positive law alone. Legal positivism is consistent with the eighteenth century Enlightenment, or Age of Reason, in which Western Europe, and later the United States, believed that man could remake society according to his own reason and will. With the help of science, a new social order, “a new order of the ages” (novus ordo seclorem) would be created, a heaven on earth, would be created as man remakes nature in his own image. As Francis Bacon said in the seventeenth century, man will “hold nature to the rack,” pulling out its secrets, and by dominating nature, create technologies for the comfort of man. Ideologically this idea is opposed to the notion of a set natural law man should follow, either in science or in ethics. But exploiting nature is parasitic on a set order of nature, and thus science cannot fall into total positivism without destroying science. Ethics and law, however, were other matters as the nineteenth century’s machines ground on like clockwork. Man could exploit ethics and law for his own purposes, for reshaping society, and there is no set order of nature that applies to ethics and law. This view was enshrined in the work of U. S. Supreme Court Justice Oliver Wendell Holmes, Jr. (another contribution of New England cultural rot to the ruin of the United States). Holmes was influential in pushing a legal positivist framework that quickly became the dominant framework among U. S. judges–to the point that some liberals were claiming that Judge Clarence Thomas‘ acceptance of natural law disqualified him from serving on the Supreme Court. I wonder what the liberals would say about the noted scholar and judge, John Noonan, who accepts natural law and sits on the Ninth Circuit Court of Appeals. We have seen more than once that the public welfare may call upon the best citizens for their lives.  Justice Holmes was consistent with his positivist framework and appealed to the abstraction of “social welfare” to justify his position. In Buck v. Bell, 274 US200, 1927, Justice Holmes, in his majority opinion concerning the case of a woman ordered to be sterilized for being “feeble minded,” says, “It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” Holmes’ attempt to justify sterilization appeals to the public good–it is a utilitarian appeal–and utilitarianism only makes sense in a moral and legal world bereft of a concept of natural law. If law is just a positive act of legislatures and judges, then any kind of action by the state can be justified for “social welfare” or “for the public good.” Natural law offers a constraint on the tendency to remake society by getting rid of people that society finds uncomfortable.  But without the restraint of natural law, the state can justify any use of power against individuals or groups as long as it can be justified in terms of the “general welfare.” Note the terminology used by the U. S. Constitution, which is more of an Enlightenment Doctrine than some of its conservative advocates claim. Given the presuppositions of the Enlightenment that were not removed by the latent Christianity of the founding fathers of the United States (and the more active Christianity of others), the turn to legal positivism was a logical turn–but a turn that has led to a further breakdown of American society and the dismantling of the ethics and laws upon which Western Civilization has depended since the rise of Christianity.

The Failure of the Welfare/Warfare State

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In the future the United States will not be the country it once was–thank God. The U.S. will not have the money to keep its empire, and like all empires, it will lose its client states such as Iraq and Afghanistan. If we’re lucky, U.S. troops will also be withdrawn from South Korea and from Europe. The utopian Wilsonian idea that the United States has the duty to “spread democracy to the world” will hopefully be laid to rest. The military-industrial complex, with its drain on resources and its support for continual warfare may fade away, hopefully to engage in manufacturing more than instruments used to kill other human beings.

Even if the empire falls, the money saved will not be nearly enough to balance the budget or stop high deficits. The welfare state, developed during the massive New Deal programs designed to ease the Depression (whether they did or whether they prolonged the Depression is a matter of legitimate debate), and vastly expanded under Lyndon Johnson, will have to make deep cuts in its programs. It may be too late to avoid social chaos. Years of making people dependent on the government have contributed to large numbers of individuals who take advantage of the system and do not attempt to get a job. Those who do try to work quickly realize that welfare leaves their families better off than a job–even a job that pays significantly more than minimum wage. Although there are many exceptions, there are also many people in the underclass whose behavior is morally lacking. Promiscuity, drug use, drug dealing, a failure of fathers to care for children–all are the products of the welfare state, moral relativism, the decline of the family, and the decline of religion. If the federal welfare state is dismantled, there may be social chaos for a while, but hopefully the dismantling would force people out of the dependence on government mindset and encourage them to go to school, go to work, and contribute to the American economy, both monetarily and in the old sense of the word “economics,” oikomounia, the social economy that is part of every household. When the household is run well, this helps the overall economy by providing productive workers to the workforce, and it helps the social and political economy by providing virtuous people to contribute to society’s good.

There are no guarantees. But the United States may default on its debt if current spending levels are not radically lowered That could lead to a Depression and to violence in the streets. A firm hand in dealing with phenomena such as flash mobs should restore a measure of social order, although it will take decades to expunge the harm of the New Deal and of The Great Society. These systems have helped undermine the basis on which republican government can be run. People who demand “bread and circuses” from the government seldom make good citizens.

Welfare is a necessity is some cases when there is no family or friends to help someone who is having a difficult economic time. Its allocation by government should remain, at the broadest, at the state level. The United States has become too large to effectively govern, and it may be in the future that at least some of the states will be independent or have more limited autonomy from the federal government. Local resources can be used to help those locally in need. Then the United States should have policies that encourage Americans to manufacture items in this country. If more manufacturing comes, this would ease the burden on society by giving jobs to those previously were not able to find work.

Entitlements of every kind must be cut. The U.S. has no other choice. Pork barrel projects must cease. If the president refuses to have fiscal discipline due to his support of the welfare/warfare state, someone should point this out. Cursing out the Tea Party, as Maxine Waters did, reveals her ignorance of economics–that the United States must get its fiscal house in order, balance the budget, and use any surplus to help to pay the national debt. If fiscal responsibility does not happen, any recognizable U. S. may quickly succumb to the resulting economic chaos.

 

 

West Memphis Three Freed–Finally

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Some measure of justice has finally reached Jessie Misskelley, Jr., Damien Echols and Jason Baldwin, the three men who were convicted of the 1993 murders (the “Robin Hood Hills Murders”) of three young boys in West Memphis, Arkansas. During a time in which Southern Baptists, members of the Churches of Christ, Pentecostals, and other Evangelical bodies tilted toward Fundamentalism were in a hysteria about “Satanic cults” and “Satanic ritual abuse,” these men were convicted on a paucity of evidence. Recent DNA evidence showed no link between the West Memphis Three and evidence found at the scene. If the men had not made the Alford Plea, which means that they plead guilty from a legal standpoint but did not admit guilt, they would have almost certainly received a new trial. But given what they had already been through with ignorant Fundamentalist juries and prosecutors taking advantage of the almost pathological fascination some Fundamentalists have with Satanic activity (even though there is no evidence of any widespread Satanic activity and virtually none of ritual abuse), they took the safe route in order to be released and continue trying to clear their names. Mr. Echols practiced Wicca, and although as an orthodox Anglican Catholic I sharply disagree with the tenants of Wicca, it is a pantheistic nature religion that has nothing to do with Satanism. But some Fundamentalists seem to be unable to make these distinctions, as evidenced by their ignorant statements about the “evils’ of the Harry Potter series of books and movies. Such attitudes would be a sideshow if they did not lead to false convictions in actual legal cases such as the Robin Hood Hills murder case. The sad thing is that whoever actually committed the murders will most likely never be identified. This case should be a lesson about the dangers of extremists in any religion, including extremists in Christianity–traditional Christians get enough flack without being associated with ignorant fearmongers. I wish Mr. Echols, Mr. Baldwin, and Mr. Misskelley well and hope they succeed in finally clearing their names.

Lack of Respect and the Coming Chaos

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Children throw trash on a lawn. Pit bulls, allowed to run loose, scatter the trash. Children walk across other people’s property, opening unlocked gates to fences and not closing them. Dogs run through one of the gates, dig into the recent grave of a beloved cat, and almost get to the body. When locks are put on those gates, children begin to dismantle the fence in the front yard. In exasperation, the sheriff is called.

This happened to a person I have known literally all my life. To some people, such actions may seem minor in a society in which violent crime is rampant. Yet big things can begin in small ways. Behavior that at first seems like childhood pranks can, without parental guidance, blow up into more serious behavior. And adults who do not care whether their dogs run–two of which attacked the owner–are dangerously irresponsible and reveal a lack of respect and caring for their neighbors.

When I was a child, if I ever disrespected someone else’s property, I would have gotten the belt from both my parents. But I never did show such disrespect–because it is how I was brought up. Most children in the United States, except for the children of those we used to call “trashy” people, were taught to respect other people’s property. If they have permission to take a short cut through someone’s yard that is one thing. To believe that they do such “because they want to” reflects the “me me me” attitude of both parents and children in many families. “I want to take a short cut through my neighbor’s property. So I will.” “I want to steal crops from his garden. So I will.” “I want to borrow items without returning them. So I will.” “I want to take an item from his mailbox. So I will.” “I will” is the product of pride, the primal sin–in the Christian tradition, Satan rebelled against God with the attitude, “Not Thy will, but mine, be done.” Human beings are fallen creatures, and human nature has been damaged (though not destroyed) by self-will. It is difficult to keep selfish desires under control–which is why parents used to take a firm hand in disciplining their children. Now such discipline should never become abusive, but it should be consistent and combined with moral teaching. Part of that teaching is that no one is owed anything by other people, that one should respect other people and their property, and that one should push aside one’s immediate desires for the greater good. The notion of being patient and delaying gratification seems to be missing from many people today, both children and adults. That is a path to barbarism, to Thomas HobbesState of Nature, in which life is “solitary, poor, nasty, brutish, and short.” This is a Lord of the Flies world in which eventually the civilized and good people, such as Piggy in William Golding‘s novel, are killed, and children hunt with a stick shorted at both ends. Civilization lies on a thread, and what seems to be petty bad behavior can be the knife that cuts through the string of civilization. I can remember in Athens, Georgia, jogging with my Walkman, and children shouted “Look at him, wearing headphones like a girl!” I never would have dreamed saying that to an adult when I was a child. And children who do not respect adults will not respect anyone else.

Prime Minister Cameron of the U.K. recently said the riots were due to a “moral decline.” Despite pseudo-scientists mocking Mr. Cameron, he is correct. The rioters made self-centered, immoral decisions–because they were not brought up to respect other people. I fear for the future of Western Civilization–Western Society may end up in a situation like the chaos of the eight century, with only small groups of monks (or others who want to preserve civilization) keeping the light alive through the darkness of chaos and crime outside. God help us.

Dr. Richard Nilges: A Tireless Advocate of Truth

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Dr. Richard Nilges, neurologist and long-time critic of brain death criteria for human death, died last month after a long, productive life. I never met him in person, but via e-mail and telephone–the first time was in 1996. I was interested in editing a book of essays opposing brain death criteria. Never having edited a book before, I asked both Dr. Paul Byrne, a neonatologist and the dean of opponents of brain death criteria, and Dr. Nilges to help, and both graciously agreed. Dr. Nilges wrote a chapter for the book, which was published in 2000 as Beyond Brain Death: The Case Against Brain-Based Criteria for Human Death (Kluwer [now distributed by Springer-Verlag]). Dr. Nilges’ chapter, “Organ Transplantation, Brain Death, and the Slippery Slope: A Neurosurgeon’s Perspective,” was the most passionate chapter in the book, reflecting a lifetime of difficult battles against the medical establishment. He retired early after serving as an Attending Staff Member in Neurosurgery at Swedish Covenant Hospital, Chicago. His conscience would no longer allow him to declare patients dead using brain=based criteria. For many years after his retirement, Dr. Nilges, writing with Paul Byrne and others (such as Dr. David W. Evans and David Hill in the U.K.), spoke out against brain death criteria when medical and scholarly opponents of brain-based criteria for death were scarce (the late Professor Hans Jonas of the New School for Social Research was an exception). During the 1970s and 1980s, Dr. Nilges’ position was considered to be a fringe position by the medical and medical ethics establishments. But the work of Dr. Nilges and other pioneering opponents of brain death criteria eventually bore fruit. Professor Stuart Youngner began to hack at the medical arguments in favor of brain death criteria, bringing out arguments concerning continuing brain function in patients declared “bran dead” which Byrne and Nilges had noted years before. The real breakthrough came with Dr. Alan Shewmon, a pediatric neurologist at the UCLA School of Medicine, came out in opposition to brain death criteria. Eventually an entire network of physicians, philosophers, sociologists, and other scholars came to oppose brain death criteria; many questioned the morality of the current system of organ transplantation. If brain death is not death, then removing vital organs from the “brain dead” patient involves killing the patient. Not all opponents of brain death criteria oppose organ transplantation–Dr. Truog does not–but even Dr. Truog believes that people contemplating signing a donor card and families considering donation ought to be told that organ transplantation from a beating heart “brain-dead” donor kills the donor.

Now articles opposing brain death criteria have been published in major medical and bioethics journals. Some younger scholars are writing against brain death criteria, such as Professor Scott Henderson in his Death and Donation (Wipf and Stock, 2011). Thus there is a third generation of scholars willing to oppose the medical establisment’s continued support of brain death criteria. This would not have been possible without the pioneering and courageous work of the first generation opponents, including Dr. Richard Nilges. His legacy and influence will live on in the patients he helped over the years and in the scholars he inspired to have the courage to question what they may have previously taken for granted.

Dr. Nilges was a devout Roman Catholic whose faith was central to his life. Requiescat in pace.

Ron Paul and the Media’s Blatant Lack of Integrity

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Ron Paul, member of the United States House of...

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Rep. Ron Paul, who finished a hairsbreadth below Michelle Bachman in Iowa, is, in the media’s eyes, a nonentity. This reveals the utter, complete lack of integrity in the major American media sources. The members of the mainstream media (and even Fox News) hate Ron Paul’s antiwar and libertarian views, thus they pretend that he does not exist. But to pretend that the second place winner in the Iowa straw poll does not exist is blatantly lying to the American people. The mainstream media is beyond dishonest; it does not even deserve public respect. And Dr. Paul is not the only person or position the media ignores. The mainstream’s media’s bias toward Mr. Obama was no secret during the 2008 election. But even earlier than that, the media claimed in 1992 that the United States economy was in the worst recession since the Great Depression. The members of the media who said that were liars. The 1973-74 and 1982-83 recessions were far worse than the 1992 recession. But because the mainstream media was rooting for Mr. Clinton, it lied about the economy and helped to get the candidate of their choice elected. On issues such as abortion and homosexual marriage, the socially liberal bias of the mainstream media outlets is obvious, as is the hatred of media members of traditional Christianity. At least Walter Cronkite, who had his own liberal biases, did his homework on the facts and did not intentionally distort them–he had integrity. Not his successors in the media today.

Ron Paul offends the media by opposing their pro-war stance. The media, conservative and liberal, were cheerleaders for the Iraq and Afghanistan wars, and they ignored both the antiwar left and the antiwar right. How can opposing two needless wars be “extreme”? It is in the eyes of the morally and intellectually blinded media. The media also makes much of Ron Paul’s claims that secession is constitutional. Yet few people during the first 85 years of the American republic would have disagreed with Paul–it was only with Lincoln that the idea of “preserving the union” came into vogue, and then the illegally  passed Fourteenth Amendment increased the legal authority of the federal government at the expense of the states.

Neither are Ron Paul’s positions on drug legalization extreme–William F. Buckley, surely a mainstream conservative, supported the legalization of drugs. Anyone who actually believes that the war against drugs is working is so blind to reality that he could just well believe that pigs fly.

Ron Paul deserves a place among the major candidates for the Republican presidential nomination. It is a shame that the utter dishonesty of the American media will work against his receiving the recognition he deserves. Hopefully his supporters will come out and show that that it is not Ron Paul who is irrelevant–it is the American media.

 

Borderline Personality Disorder

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Borderline Personality Disorder Awareness

Borderline Personality Disorder is a disorder I have been blessed not to have, though I’ve known individuals, some close to me, who were borderline. BPD is essentially a problem of emotional control. Borderline people have wild mood swings, though they are not usually bipolar. They can love you and think you are the most wonderful person in the world one moment, then turn on you, demonize you, and hate you. Those shifts can be unpredictable and can happen quickly, leaving family members hurt and wondering how to react. Borderline individuals tend to put people they know into lose-lose situations. If the borderline person is angry with you, whatever you say will be the wrong thing. You will, as one bestselling book on BPD alludes to, be “walking on eggshells.”

Borderline people can be manipulative, just like narcissists, but unlike sociopaths or psychopaths, they do have a conscience and are capable of love. Often, however, their love is twisted, oriented more to feeding their egos (like narcissists receiving “supply”) than truly focusing on the other person. They are good at making themselves look “too good to be true,” seeming to be interesting in everything you are. Some borderline individuals will lie about their accomplishments in order to impress others; other borderline individuals find it difficult to tell the difference between appearance and reality. The latter group can go into a dissociative state and not remember what they did during that state. If you quote the borderline’s statements to you to his family and friends, often they will stare at you as if you are crazy–because the BPD person told you that something happened that, in truth, did not happen.

BPD individuals, like narcissists, psychopaths, and sociopaths, often have a great deal of charm, which they use to their advantage. But the advantage is only temporary as people pick up on the fact that the BPD person “ain’t quite right” as we say in the South. Instability in jobs and instability in relationships may lead to the BPD going through multiple jobs quickly, moving many times, and going through multiple marriages. All relationships are unstable. The borderline person is afraid to lose anyone in his life, yet does not realize that his behavior drives people away. Sadly, the BPD individual is usually miserable inside and lonely, desperately wanting a friend. Most BPD persons do not recognize that their behaviors drive away other people; others may recognize that fact, but believe that their traits are essential for their emotional survival. That points to the greatest problem borderline individuals have in overcoming their disorder: a failure to take responsibility.

So many mental problems are due, in part, to someone believing they are the slave of fate, that given one’s background, one cannot help the way he is. For that reason, he refuses to take responsibility for his actions and blames others for bad things that happen to him. The most difficult obstacle psychologists and psychiatrists have dealing with borderline people is the borderline’s refusal to take responsibility. The borderline often tries to manipulate the therapist. Sadly, many affairs with therapists occur that way. One psychologist told me that of his fellow therapists who fell into affairs, probably over 95% of the lovers were borderline individuals. Since flirtation gains the borderline attention and helps with low self esteem (which only masquerades as high self esteem), many borderlines are extremely flirtatious. Not all will go to the point of a full-fledged affair, but many do.

BPD usually has its origins in childhood. Oftentimes, childhood sexual abuse by a parent or stepparent is the cause–though this is not the only cause. BPD usually manifests in a person’s teens. Some borderline individuals spontaneously recover in their forties; others never recover. Therapy is notoriously ineffective, although newer cognitive methods work better than previous therapies. It is a joke among psychologists that the way to harm an enemy psychologist is to refer a borderline patient to him. If the psychologist can get the borderline person to admit that he is not the slave of forces beyond his control and that he is able to change, the major step toward recovery has occurred.

Are borderline individuals sick or evil? Some borderline behavior seems to be evil: the lying, the manipulation, the willingness to say or do almost anything to get what one wants, the sudden turns toward absolute hatred. I know of one therapist (not my therapist) and one person who works in the criminal justice system who consider borderline people to be evil. In my opinion, most of them do not begin as evil, though, like any human being, they may become evil due to habituation. They are trying to survive something that hurt them so much as a child that they believe that their behaviors are the only way they can survive in the world. They may believe that if they did not behave the way they do that they would fall apart–indeed, their personalities seem to be fragmented. These sad, frightened people need to be guided toward healing–but they must be willing to get help and be serious about it. To anyone who may have this disorder: I pray for them to get help, to engage in positive behaviors that support solid relationships with others, and to find peace in their lives.

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