Texas Judges and the Lunacy of Precedence

For those who haven’t seen the story yet (as I’m sure this will gain some steam), Texas judge Lanny Moriarty sentenced a 17 year old student to jail for a night because she missed too much school. Aside from the fact that apparently in Texas it’s legal to put a student in jail for not going to school, the 17 year old is a straight A student who is dual enrolled in college courses. Why is she missing so much school? Perhaps because she works two jobs in order to support her older brother and younger sister since her parents split. Thus, somedays she’s just too tired to go to school.

The entire reasoning behind Moriarty’s sentencing is, “Well, if I let her go I’ll have to let everyone else go.” The very few defenders of his decision typically say “the law is the law.” Both mentalities have absolutely no place in the American courtroom, yet both are so common that few question them. The idea of precedence (“if I let her go then everyone gets to go”) and legal positivism (“the law is the law”) are symptomatic of an authoritarian state, not of a judicial system focused on justice.

Now, aside from the allegations that Moriarty is in the pockets of corporations (which violates the code of ethics; let us pray he is disbarred), Moriarty is unfit to serve in his capacity as judge because he doesn’t understand the danger of ruling via precedence (or to establish precedence). Precedence doesn’t allow for unjust decisions to be overturned. While it’s important to have legal consistency, all decisions must still be evaluated as just or unjust. If previous judges have ruled that x is wrong, the current judge must still look at the current situation and determine whether or not x really is wrong. While he can refer back to the previous decisions, he must look at the current context to determine if those decisions apply to this circumstance or if those decisions were right to begin with (think of the legal precedence that secured segregation in the early 20th century).

With the above in mind, in this circumstance he could say that due to the circumstances of the girl the law wouldn’t apply. The intent of the law (or “spirit of the law”) was to prevent students from skipping school for petty reasons. The intent of the law was not to jail students because they’re worn out from holding their family together while obtaining top marks. Thus, while the law would apply to most other truants, it simply would not apply in this case. This doesn’t set any precedence other than “If you’re missing school because you’re working to support your family, we’re not going to put you in jail for being an incredible human being.”

But what of the legal positivist who says, “but the law is the law”? Legal positivism is a result of nominalism, which is the denial of universals and the focusing on particulars. If there are no universals then the society dictates what is and is not part of the law. Once the law is established the law is to be followed, no matter what. Now some legal positivists might say we can still disobey the law if we think the government is illegitimate or the law unjust, but this caveat undermines the entire thing; if we can determine justice without appealing to the established law or the government, then the law is not justified in and of itself (i.e. the law is not always the law, that is to say, the law is not always just and therefore must sometimes be broken).

If the “law is the law,” then Martin Luther King Jr., Ghandi, Nelson Mandela, and other great champions of civil rights are the absolute worst human beings on earth. They violated the social norms. They went against the legal consensus. We ought to despise them for saying that society had it wrong. Of course, hardly anyone would make these arguments. Almost everyone would rightfully declare these people champions of justice. But the justice they pointed to had to exist outside of their own experience, that is, it had to be a universal (absolute) and not a particular (subjective).

If I am correct on the above, then in this case the girl should not have been punished. The “law is the law” doesn’t work; the law was unjustly applied and the law in and of itself is unjust. That it would allow a judge to punish high-performing students who are contributing to society means the law ought to be broken, challenged, and cast aside. No judge should enforce said law because the law is wrong; if Congress passed a law saying that all Muslims should be put in prison, then regular citizens and agents of the government would have the moral obligation to disobey the law. While a law geared towards jailing truants isn’t nearly as drastic as the example provided, it proves the point that some laws are unjust.

On a second point, the idea that we would jail students for choosing not to attend school is quite absurd. The purpose of the government is to (1) recognize the innate freedoms of all its citizens, (2) protect any outside threats from encroaching on those freedoms, (3) protect any domestic threats from encroaching on those freedoms, and (4) provide a society that is stable enough for those freedoms to flourish. Forcing students to attend school or face jail doesn’t fulfill any of those four categories; if anything, it violates both 1 and 3. By failing the attend school the student harms no one except himself; from a legal perspective (not a moral perspective), so long as his actions don’t harm anyone else, what business is it of the government’s (kind of like seatbelt laws)? Thus, not only was this law misapplied in this case, the law itself is flawed and unjust and should never be applied even in cases where the student misses school simply because he doesn’t want to go.

Ultimately, even within the parameters of the law, she should not be punished for what she did. There’s no reason she should have anything put on her record; what she has accomplished is nothing short of amazing and if she is keeping up top marks in her classes while missing school, she deserves an award, not jail time. However, so long as we teach this absurd philosophy of legal positivism in our law schools, so long as we adopt nominalism, we’re going to end up with more and more totalitarian laws. That’s just how it works; when you seek to deny reality you have to create a false reality, and the simulacrum will always be worse than the real.

“That Offends Me!”

A common complaint that is often heard is, “That offends me!” Generally such a statement is not a mere statement of fact, but is tantamount to saying, “My rights have been violated.” The idea of, “You support homosexual rights” or “you’re against homosexual rights” might offend someone and that someone might then seek to have you silenced, somehow theorizing that you have infringed upon his rights. Or in the case of religion (where this phrase is most often in use) someone might say that religious discussions offend him, which is code for, “You don’t have the right to say this/you’re infringing upon my right.”

What people forget is that while offense might ruin public decorum or impede understanding between two opposing sides, the right to not be offended isn’t a right. If a government employee says, “I believe in Allah and the five pillars of Islam,” while that might offend you, that doesn’t mean your rights have been violated.

The First Amendment does not say, “Citizens shall not talk about religion if it offends someone” or “government employees shall not talk about religion if it offends someone.” For those curious about what the First Amendment states (such as Christine O’Donnell), it says (in part):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

Now, what in there says that you have the right to not be offended. Understandably the First Amendment would prohibit the government from telling you what religion to believe or what not to believe, or it would prohibit the government from making you pay taxes to a religious institution (or to an anti-religious institution). But what in there says you have the right to avoid offense?

The thing is, we’ve become so anti-religion that any mention of it and we automatically think a right has been violated. If a congressperson says, “We turn to God for hope,” automatically we believe that the government is forcing us to adopt a religion to the exclusion of all other religions. If a teacher says, “I don’t believe there is a God, but there are multiple viewpoints that you should consider when you look at the issue yourself,” no one’s rights have been violated. It might be offensive, but this certainly doesn’t mean rights have been violated.

The idea of having a separation between Church and State is a good one so long as the State doesn’t overpower the Church in having this separation. The First Amendment addressed religion because the Church overran the State, which then imposed taxes and fines on those who didn’t agree with the Church. In rebelling against such a monster, the State has subdued the Church and made sure she has no voice in public discourse, that is, the State is overrunning the Church, which is now attempting to silence any religious voices in public debate. This was not the meaning of the First Amendment.  Continue reading

Four Types of Heresy – Rejection of the Law

I am writing this while out of town. This is a scheduled post. Any comments made on this post may not appear until I get a chance to authorize them (all new users go through a filter so I can weed out spam; objections are allowed, but please look at the commenting policy). If your post has not been authorized by June 30, please contact me)

During the time of the Gnostic crisis, it was common for Gnostic writers to reject the Law and most of the Old Testament. The reason the Law was rejected was that it:

a) showed all humans were sinners

b) showed one must engage in physical acts to be holy as well as non-physical acts

c) showed a God that interacted with creation

d) showed a God that created the physical world

e) showed that a Messiah would come

There are multiple groups that John lists as falling under the heresy of rejecting the Law or the Old Testament. John was not advocating following the Law, but merely acknowledging its moral value and that it was given by God. The Law stands as a testament that we need God and that God interacted with us.

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A Logical Look at Legalized Abortions

Recently, Alaska has been in the news for putting a parental notification law on the ballot. Of course, multiple people have jumped up to say that such a law somehow violates women’s rights. How the law violates women’s rights when these same “women” (under-aged girls) have to get parental consent for medical treatment, not just notification. This means Planned Parenthood argues that when it comes to killing a fetus, a 15 year old has a right to her body, but when it comes to consenting to a field trip or the like, the 15 year old no longer has a right over her body. This is a contradiction, but I digress.

I’ve been thinking more and more about people who are against abortion, but then qualify their statement to say, “But I would never make it illegal for others.” This forces the question, “Why not?” The only proper reason to be against abortions is that one believes the fetus to be a human person. If one believes the fetus to be a human person, then it should follow that one believes the fetus has rights.

One way to look at it is by the possible logical scenarios for abortion:

(1) All fetuses are persons; all persons are entitled to the basic right to life; therefore, all fetuses have the basic right to life (abortion is always wrong, with certain medical exceptions)

(2) Some fetuses are persons; all persons are entitled to the basic right to life; therefore, some fetuses have the basic right to life (abortion is sometimes wrong)

(3) At least some fetuses are not persons; all persons are entitled to the basic right to life; therefore, at least some fetsuses do not have the basic right to life (at least some abortions are not wrong)

(4) No fetuses are persons; all persons are entitled to the basic right to life; therefore, no fetuses have a basic right to life (no abortion is wrong)

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Oklahoma and Abortion

Today, the Oklahoma Senate voted to override the governor’s veto of a bill that requires mothers to get an ultra sound and have the fetus described to them before getting abortion. The bill also prohibits women from suing a doctor if the doctor purposefully withheld information about the fetus (such as disabilities) from the mother.

I am extremely happy to see such a bill pass and I wish that every state had a law like this one. Though the Oklahoman governor says that such a bill violates the woman’s right to privacy (though I fail to see how), I would argue that her right to privacy is trumped by the child’s right to life. After all, this is what the entire abortion issue centers upon – if what is in the womb is not a human person, who can possibly argue against a woman’s right to terminate this non-human life? If, however, what is in the womb is a human person, who can possibly argue that a woman has a right to terminate another human, regardless of location?

What bothers me the most on this issue is that so few seem to have attempted deep thought on this issue. The governor himself says that the bill is a waste of tax-payer money. Since when was the dollar placed ahead of human life? Rather than assuming that what is in the womb is not human, shouldn’t we think deeply, logically, and scientifically on this issue first? Rather than turning to the cost of a bill, shouldn’t we first review the moral ramifications of a bill?

My hope is that the people of Oklahoma will wise up and vote out this ignoramus governor who refuses to think deeply or openly on the issue of abortion and instead vote in someone who holds to a correct moral view of human life.

Dealing with Judith Jarvis Thompson

The other day I came across this post and found it quite interesting. What was more interesting was one of the comments given by someone with the handle of “Operation Counterstrike”:

Yes, abortion is homicide. But abortion on demand is JUSTIFIABLE homicide.

If something is inside your body, then you’re entitled to have it killed. No exceptions. Even if it’s an “innocent” person. If you were inside my body, then I’d be entitled to kill you, and if I were inside your body, you’d be entitled to kill me. In fact if ALL the people in the WHOLE HUMPING WORLD, including the innocent ones, the pregnant ones, and the unborn ones, were inside your body, then you’d be entitled to holocaust them. That’s part of the meaning of the word “your” in the phrase “your body”.

This is really a sophomoric version of Judith Jarvis Thompson’s “body ownership” argument. Though he approaches the argument in a childish and immature manner, it is a real argument. I offered up the following as a response:

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