The Purpose of Law is to Prevent Injustice From Reigning – Bastiat
Why Liberals Use Law for Control, While Conservatives Use Law for Protection
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An end run is being done around the traditional American approach to legislation and change. The result is a kind of tyranny by unethical strategy, or as Friedreich Nietzsche described – a Will to Power. But one important point escapes the minds of the leftists who seem to believe all power is self-justifying. Once principle is tossed aside in a mad dash for power, all players, including leftists, are then at heightened risk for being crushed under the wheel of the abuse of power. A cursory gloss of the Nazi and Russian Revolutions proves this point.
Liberals pretend to inhabit a pure land of enlightenment and political genius which cannot be improved. Therefore, they have no patience for any who disagree with their positions because these represent not humbly held opinions, but transparent truths. And any who disagree with obvious facts do not deserve to be treated respectfully. For example, for daring to disagree with ObamaCare, an activist wished a horrible death upon conservative kids – (see CA dem to Sen. Ted Cruz aide: I hope your kids ‘die from debilitating, painful and incurable diseases’ after vote against Obamacare)
The main insight anyone needs to understand the difference between the left and right is their approach to law. Conservatives want fewer laws which exemplify principles which defend the rights of the average person so that they might be more productive and express as much liberty as possible. Liberal progressives, on the other hand, demand the law be used to create an equal society where each person can receive economic justice and equal status. Yet, much like the French Revolution, this liberal dream is destined to create a fiery end for all involved if not abandoned.
I. Two Kinds of Legal Theory – Left & Right
There are fundamentally two different types of legal theory, one defined by how law is created, the other by the content of the law. The first is that which is transcendent today – Positive Law, which according to Barron’s Legal Dictionary, is “existing law created by legally valid procedures…law set by political superiors to political inferiors.” This arbitrary legal theory is only interested in whether law has the correct external formula, regardless of the content. This legal theory is consistent with how liberals frame the world in their minds.
Natural Law, on the contrary, presumes that a law above the law exists, and that all human law must be consistent with this to have validity. This is synonymous with Anglo-American common law.
This positive law is then related to the theory of legal positivism, according to Heinrich A. Rommen, in The Natural Law, A Study in Legal and Social History and Philosophy. Legal Positivism can be seen as the formal rejection of the Natural Law theory. Rommen describes this (summarized):
Legal positivism – the rejection of the natural law according to form and content – maintains that the natural-law doctrine is opposed to legal security. Hence positivism regards the natural law as a non-law. Law, according to positivism, is only positive law, that is, statute law and such customary law as is recognized by the state. A positivist is concerned solely with the formal origin of law, with its manner of formation, not with its content. Auctoritas facit legem, law is will. The question of whether something can be wrong in itself is meaningless for a positivist. He presumes its justice, or he asserts that the question of justice is an ethical question, not a juridical one.
Natural Law theory does not quibble with how law is created, whether by legislation, kingly command, tradition, or judge’s decisions. The issue is whether the law is just, which is measured by how any law comports with its standards. The Natural Law is influenced by ancient classical authors, like Plato, Aristotle, the Stoics, and Cicero, as well as key philosophers such as Augustine, Aquinas, Locke, and the Bible and common sense.
So this battle over the true definition of law comes down to those who believe the content of law is what makes it valid, versus law as simply the expression of power.
II. How Liberals Change Society: Manipulation & Law
A. Emotional Manipulation & Leftism
Since it is well known that liberals make a much smaller percent of the American population than Conservatives, these progressives must find some manner to coerce the majority to accept their ideas. Some methods are notoriously successful, such as the blatant infiltration of Marxists into the mainstream media, the entertainment industry, aka “Hollywood,” and into higher education. From these consumers are fed non-objective news, politically slanted entertainment, or straight socialist theory as foundation for countless academic studies.
Since this Marxism is mixed with moral or ethical appeals, those exposed to such manipulative doggerel are not easily swayed from the conviction that socialist methods are the “right thing to do” in any undertaking. This is especially true as the socialist world view is offered as a no-brainer replacement for traditional religion. It is important that these elites keep from making a directly linear argument to the listeners, but instead make an appeal to the emotions – as Marxist theory laid out in a clear narrative is easily exposed as snake oil and hokum.
Other methods are used to move the masses towards leftism. A gripping description of bold manipulation is explained in Eric Hoffer’s classic The True Believer, Thoughts on the Nature of Mass Movements. Hoffer explains how a demagogue comes into a political setting, seeking power, and offering amorphous “change” which will help heal society. The change is never exactly defined, so each person enchanted by these sonorous words tends to inject their own hopes and dreams into the offer. Of course, when the politician attains power, the promises evaporate and a tyranny is established. (see Obama & the Eighty-One Percent True Believers)
B. Legal Hocus Pocus Creates Liberal Societies
It would be inconceivable to see the rapid changes in America in terms of morality and traditional belief without a judiciary relentlessly willing to upend clear legal principles and the will of the people. A classic example is the gay marriage debate. No law favoring homosexual marriage had ever passed at a state level, but these plebiscites were then regularly overturned by the courts. For example, when Proposition 8‘s ban on gay marriage passed in California, it was taken to Federal Court where the judge reversed it. Only later did it come out that the judge was himself a homosexual, a class to which the law applied. This violated one of the most famous decisions in history, Dr. Bonham’s Case, where the great Lord Coke ruled a judge cannot sit on a case where he himself is a party. Such examples are legion.
So the question then becomes whether the laws of America should be seen as standards which apply to all, meant to protect the population from lawlessness and bad people, while allowing maximum freedom. This is the Conservative position, exemplified in the declaration and Constitution and Bill of Rights.
The liberal method is the exact opposite, where laws are used to create a “fairer” society by fiat. Property is redistributed from one group to another, special groups are given preferential treatment while others languish, and the law relentlessly debases the family and civil society so that the bonds that once held us together dissolve into thin air. This is the Progressive’s dream. Mark Hendrickson put it perfectly in The Pandora’s Box Of Progressivism: Positive Law, writing:
Does the federal government serve us or rule us? At the root of this question is the further question of whether our government’s laws and rules are positive or negative. With apologies to the legal philosophers, I am not referring to “positive law” in the sense of “law established by governmental authority,” or as legislation embodying human will in contrast to “natural law”; rather, I am dividing human legislation into two categories: positive laws—those that stipulate what citizens must do—and negative laws—those that stipulate what they must not do.
The difference is crucial. Positive laws rest on the presupposition that government has the power to tell their citizens what they must do. This is the very essence of tyranny. Masters tell slaves what to do. Free people don’t have to obey someone else’s orders.
Negative law has a long and hallowed history in Western civilization. The Hebrew Decalogue is primarily negative, commanding us NOT to kill, NOT to steal, covet, etc. This is the essence of justice.
Thomas Sowell comments in The Quest for Cosmic Justice on the idea of judges setting aside clear law to seek “cosmic justice,” or their own idea of how the laws should play out in cases:
Judge-made innovations are, in effect, ex post facto (after the fact) laws, which are expressly forbidden by the Constitution and abhorrent to the very concept of the rule of law. For the courts to strike like a bolt from the blue hitting an unsuspecting citizen, who was disobeying no law that he could have known about beforehand, is the essence of judicial tyranny, however moral or just the judges may imagine their innovation to be. The harm is not limited to the particular damage this may do in the particular case, great as this may sometimes be, but makes all other laws into murky storm clouds, potential sources of other bolts from the blue, contrary to the whole notion of “a government of laws and not of men.” The difference between cosmic justice and traditional justice means a huge difference in the power of judges. Under cosmic justice, the judge’s role is to decide whether the behavior of each of the parties fits the judge’s notions of what they should have done. Under traditional justice, the judge decides the much narrower question as to what each party had a right to do, at that party’s own discretion, under existing laws and agreements.
The purpose of the rule of law, which our Constitution and Bill of Rights is based upon, is to maximize freedom, protection, and prosperity to support our Rights to Life, Liberty and Pursuit of Happiness. This is what the Founder’s vision was based upon. But now that the government is misusing the law to control, impoverish and subjugate we Americans. And since our so-called leaders will no doubt ignore our demands for lawful protection it is time for intrepid individuals who are true patriots to take the risk and run for congress and help throw the bums out.