About
Content
Store
Forum

Rebirth of Reason
War
People
Archives
Objectivism

Post to this threadMark all messages in this thread as readMark all messages in this thread as unread


Post 0

Saturday, May 20 - 4:29amSanction this postReply
Bookmark
Link
Edit

It is important to understand that Prof. Smith is making an objective (and I aseert Objectivist) argument, not a libertarian one.  The libertarian case is found in Antigone and in Walden and in the Civil Rights movement of the 1960s, and continues today with Occupy and now calls for "safe spaces."  In other words, you have a moral right based on conscience to disobey any and all unjust laws.  The government must be held to a higher law than legislation or even judicial review. Even "jury nullification" could in turn be nullified by any individual who finds the jury's dismissal of a case to itself have been contrary to a higher moral law.  

 

That would reduce society to the war of all against all in which each person's own conscience becomes the law of the land... or at least of the land occupied by that person in that moment.

 

Note that Dr. Tara Smith cites as "perfectly good laws" Obamacare and the "equal protection" that forbids a business from refusing service based on race, etc., etc., sexual orientation, etc. etc.  Many self-identified Objectivists will have a problem with that.  Looking to Directive 10-289 and the trial of Hank Rearden, they will claim that same moral high ground as their right to disobey an unjust law.  But that is, in fact, a call for religious exemption.

 

(Edited by Michael E. Marotta on 5/20, 4:30am)



Post 1

Saturday, May 20 - 10:24amSanction this postReply
Bookmark
Link
Edit

"Bear in mind that in a proper legal system, all government actions—all laws, policies, decisions, etc. — are ultimately justified by the sole purpose of protecting individual rights. The government’s use of its coercive power has no other valid foundation."

 

With that statement, Professor Smith makes clear the basis for judging any law - that is the very standard for law as such.
-----------------------

 

"Correspondingly, the First Amendment does not bestow on religious people the freedom to obstruct the legal system’s efficient execution of its mission. That would jeopardize others’ rights. […] For when a legal official confronts competing injunctions from a rights-guided standard pointing to one action and a religion-guided standard pointing to another, he is left to choose between them on the basis of . . . whatever he likes. The law can no longer serve as his guide."

 

This is the part of Tara Smith's argument that needs examination.  When there is a conflict between two laws, as will happen, one or both of the laws should be modified to eliminate the conflict.  While it is true that having a government official make a decision as to which law to enforce diminishes the force and value of law as such, the real problem is that one law (or both) is violating individual rights.  That is the fundamental issue and pursuing this business of a conflict as if one side or the other should be eliminated just to preserve the sanctity of the law is to go down a rabbit hole.  No other approach to conflicting laws should be tolerated.

 

Look at the example of the law against polygamy in the 1800s.  That law was brought before the Supreme court as being in conflict with the religious freedom of the Mormons of that day.  This is an excellent example.  There is a conflict between the first amendment and the law against polygamy.  On the Supreme Court, "Justice Waite wrote that to permit laws’ violation because of religious belief 'would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.'” 

 

Justice Waite choose to stray from Originalism and in the wrong direction.  He should have strayed in the direction of asking, "Which side of this argument best frames the idea of a government that protects individual rights?"  Polygamy was a cultural offense to the majority of people, but freedom sometimes includes the right to do things that others find offensive. 

 

As a side note, given that it was the Christian beliefs that led to a majority who were offended by the Mormon's polygamy, to rule against polygamy on that thin excuse of protecting the sanctity of law from those who would use 'religious freedom' as an excuse to violate laws was a bit much.

 

Professor Smith's arguments that religious carve-outs are bad law is a good argument but only in the context of having no laws but those that protect individual rights.  It isn't that complicated.  If a law is clear and non-contradictory in protecting an individual right, then there can be no religious freedom that would allow for the violation of individual rights.  Or, going the other way, if a law actually violates an individual right, then it isn't religious freedom that we should look for or rely on.... we should eliminate that law. 
-------------

 

Progressives are fighting against religion as a part of cultural Marxism.  They want to install progressivism as the only religion of our culture, and they seek to increase the power and control of a ruling set of elites.  Part of their battle ends up being against those who are on the religious right.  Strongly religious people have a kind of partial immunity to political correctness, and that is felt as dangerous by the progressives.

 

The religious right feels themselves to be loosing and are fighting back in defense.  (But if they had their way, they would use the power of the state to impose some degree of religion as a mandatory part of the public square.) 

 

Jefferson and Madison were brilliant in understanding that the only cure for religious conflict was to create a government that could never rule for or against any given religion.  That means it would do no good to try to use government, with its coersive force, to push this or that religion.  That means that religious factions would not be able to use force to have their way and would have to live side by side in peace - like it or not.  But that concept has been lost and the opposing sides are trying to use narrow definitions of issues to weasel-word their way to getting a bit of government power to use for their side.

----------------

 

I won't comment on the whole of Professor Smith's argument.  I haven't read her paper.  But I seriously doubt that she ever intended to argue that Obamacare is "perfectly good law" - once again, Marotta's phrasing tells us that he doen't really identify with Objectivism and likes to take a shot at Objectivists.



Post 2

Sunday, May 21 - 7:29amSanction this postReply
Bookmark
Link
Edit

Prof. Smith acknowledges the problem of government intrusion against individual rights. She says: 

This overarching purpose of safeguarding individual rights—the reason for which a legal system holds its power—in turn, constrains its legitimate work. A proper, objectively valid legal system will do all that is necessary to accomplish that end and only what is necessary to accomplish that end. Because that is its distinct, authority-conferring responsibility, the question that it must repeatedly consider is: would this law (or this application of law, or policy, etc.) advance the purpose for which we have the power that we do and do so in a way that does not simultaneously work against that purpose? Only when the answer is yes does the legal system exercise its power legitimately, within the bounds of its authority.16

 

and footnote 16 continues

16 A government could do more only at the expense of individual rights. That is, it would need to violate the rights of some in order to supply further goods to others – for instance, by limiting one person’s property rights to ensure another a certain wage. For specific arguments against such rights and against the idea of inevitable conflicts between rights, see TARA SMITH, MORAL RIGHTS AND POLITICAL FREEDOM (1995) [hereinafter SMITH, MORAL RIGHTS]; Tara Smith, On Deriving Rights to Goods from Rights to Freedom, 11 LAW & PHIL. 217 (1992); Tara Smith, Rights Conflicts: The Undoing of Rights, 26 J. SOC. PHIL. 139 (1995) [hereinafter Smith, Rights Conflicts]; Tara Smith, Why a Teleological Defense of Rights Needn't Yield Welfare Rights, 23 J. SOC. PHIL. 35 (1992).

But overall, in this article, Prof. Smith accepts the existence of the law as a foundation and considers whether claims of religious conscience are sufficient to grant immunity to "perfectly good law."  In the case cited at the opening to which Steve Wolfer replied, the Hobby Lobby case was a direct challenge to Obamacare.  

 

The problem of Mormon polygamy was not just that it offended the sensibilities of the monogamous.

"This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?" -- http://caselaw.findlaw.com/us-supreme-court/98/145.html

 

The Hobby Lobby case challenging the Affordable Care Act ("Obamacare") was specifically about religious practices: the company sought religious exclusion from the practice of paying for certain medical treatments and presciptions. 

 

Steve Wolfer's comments above are generally correct. He said only what I would have said: Tara Smith does not address the problem of unjust laws, and why they are unjust, and what you should do about it. That was not the purpose of her essay on "Legal Schizophrenia." But it is an important objection to her argument that we should not grant (religious) exemptions to the law. That is why I identified this as an objective argument, not a libertarian one.  For a libertarian, conscience alleviates obedience. A libertarian can jaywalk or evade taxes in good conscience. Violence against doctors and others over the issue of abortion is well documented: https://en.wikipedia.org/wiki/Anti-abortion_violence#Attempted_murder.2C_assault.2C_and_kidnapping  Those are not mere religious beliefs, but actual religious practices, albeit extreme.

 

Steve Wolfer is not alone among older Objectivists in thinking only within the latitudes of Objectivism as it existed before 1972.  While the Ayn Rand Institute and the Atlas Society engage each other over whether Objectivism is extensible, the fact is that Dr. Leonard Peikoff has published much that was not developed before he tackled certain problems.  Others who also understand Objectivism do not agree with all of his works.  However, I highly recommend Understanding Objectivism, which is based on lectures that he gave in 1983.  (I reviewed it on my blog here.)

 

Similarly, in a video recorded interview with her legal counsel, Henry Mark Holzer, Ayn Rand discussed objective law. She cited the history of ancient Rome. Roman law was not (primarily) concerned with individual rights, but it was objective because it was publicly made and published and uniformly enforced. That lack of uniform enforcement is what is at issue here.  Allowing some people to claim religious exemption from the law gives them more rights than those who do not.

 

Moreover, allowing religious exemptions places some articles of the Constitution in direct conflict with the First Amendment.

To crystallize the friction that exemptions engender, consider the conflict that an exemptions reading of religious freedom has created between the First and Fourteenth Amendments. In the recent disputes about religious businesses serving at same-sex weddings or satisfying the medical insurance mandates of the Affordable Care Act, the proposed exemptions raise a dilemma. Which should the legal system value more greatly: equal protection of laws, as the Fourteenth Amendment guarantees,19 or religious liberty, as the First Amendment demands?20 We cannot respect both. For the government to enforce the Fourteenth Amendment anti-discrimination requirement (at least, according to current doctrine on Equal Protection), it must violate the wishes of those who, for  religious reasons, prefer not to facilitate activities they disapprove of. -- pg 48 para 2.

 

Once again, the context here is objective law, not libertarian theory.  The libertarian argument is that a business has an absolute right of conscience to discriminate on the basis of sex or gender (or race or religion).  However, that it is not the law. 

 

(Edited by Michael E. Marotta on 5/21, 8:09am)



Sanction: 5, No Sanction: 0
Sanction: 5, No Sanction: 0
Post 3

Sunday, May 21 - 9:40amSanction this postReply
Bookmark
Link
Edit

Steve Wolfer is not alone among older Objectivists in thinking only within the latitudes of Objectivism as it existed before 1972.

 

It is alway amusing when Marotta labels my limitations.  I'll clearly admit to being older... and to being an Objectivist, but I didn't quit readying, thinking and studying in 1972 or any year since.  Sorry, Marotta, but you have yet to properly label my intellectual latitudes.

-------------------

 

For me the issue wasn't about objective law, libertarian law, or conflicts in the law but... as Prof. Tara Smith said in the beginning:

 

"Bear in mind that in a proper legal system, all government actions—all laws, policies, decisions, etc. — are ultimately justified by the sole purpose of protecting individual rights. The government’s use of its coercive power has no other valid foundation."

 

With that statement, Professor Smith makes clear the basis for judging any law.  Everything else is secondary, and the attempt to resolve any conflict between two laws must first clear that bar, then it can move on to wording, jurisdiction, standing or any other form of conflict.



Post 4

Sunday, May 21 - 4:31pmSanction this postReply
Bookmark
Link
Edit

The problem is when does conscience alleviate any requirement for you to obey the law? Religious claims of exemption are merely a specific kind of appeal to higher moral law. Tara Smith says that the purpose of government - the justification for its use of force - is the protection of individual rights. We can all agree with that. When the government goes beyond that, as in the Affordable Care Act, the call for relief from obedience on the basis of religion may well be an invalid objection.  But the courts cannot put words in your mouth. If you make an invalid argument, even about an unjust law, the courts can only consider what you said, not what we might wish you had said.

 

That leaves unanswered your response to an unjust law. It is an easy assertion that most of the regular writers here since 2003 would say that you have a moral right to evade taxes, if not the imposts and duties specified in the Constitution, then surely the Income Tax (which is also a Constitutional law).  I challenge that.  You can work to change the law. You can leave society entirely and go live in the woods. But if you want to participate in civilization, then you must pay your taxes.

 

If you can be exempt from taxes on the basis of conscientious objection, then, as the Supreme Court ruled in Reynolds, even human sacrifice would be allowed. And in that court opinion, it was also asserted that law officers can stop a widow from immolating herself on her husband's funeral pyre. The libertarian claim that you have an absolute right to commit suicide is fallacious. The government has a compelling duty to protect those who cannot protect themselves. Children and the aged are easy examples. Anyone who exhibits irrational behavior can be (and should be) prevented from harming themselves.



Post 5

Sunday, May 21 - 5:48pmSanction this postReply
Bookmark
Link
Edit

There have been many sane people who are involuntarily committed, and then released.  This is far from objective and violates individual rights.  There are worse cases out there than what I have mentioned, Google can return those examples.

 

(Edited by Korben Dallas on 5/21, 6:03pm)



Sanction: 9, No Sanction: 0
Sanction: 9, No Sanction: 0
Post 6

Sunday, May 21 - 9:44pmSanction this postReply
Bookmark
Link
Edit

The problem is when does conscience alleviate any requirement for you to obey the law?

 

One of the problems is in the word "conscience" since that presumes some moral standard, and Marotta's sentence doesn't give us a context regarding the moral standard or the life situtaion.

 

We start from the premise that there are some moral values that are objective, absolute and universal.  And as Objectivists, we hold life, a flourishing life, life as is appropriate to a human, as our standard of value.

 

That is important, because when we arrange these primary values into a hierachical scheme, we will put life-in-a-lawful-society somewhere in the list.  It will be a value that is less than life itself, therefore if the government were trying to kill us, for some reason, then we would not accede to the very law that was trying to end us.  It is about a rational ordering of values for life here on earth (and not in a lifeboat).  We arrange values in a hierarchy for that purpose.  And when we find a conflict, we look for errors in logic, errors in the understanding of the value, or we see that to remain true to value A would violate value B and the hierarchy tells which way to go. 

 

And it gets a bit more complicated because our acts have consequences.  The reason I don't drive faster than I normally do isn't because I have a sense of duty to obey the speed law and am being spoken to by my conscience.  It is because I don't want to pay a speeding ticket.  I may or may not recognize some moral right of the government to set a limit on a given street that they manage.  However they manage it with involuntarily collected taxes - which is not very moral of them.  And the specific speed limit might seems too low to be reasonable and respectful of my time. 

 

But there are two strong moral values that will prompt me to either not speed, or to accept a ticket gracefully if that is the case:

1.) Respect for the concept of rule of law - I don't not value an environment where whim and initiated force are the rule,

2.) It is NOT in my self-interest to complicate my life with a legal battle to fight a speeding ticket.

 

The people at Hobby Lobby are clearly very religious and very opposed to funding birth control.  They have a moral hierarchy of values where obedience to those moral values comes higher than the complications and costs of fighting the law.  But they did fight it in the courts.  They didn't go anarchist or rebel.

 

Do you have a moral right to evade taxes?  Your moral duty is to your self-interest.  So, if evasion of taxes gets you put in prison, then you didn't serve your self-interest very well.  If your income tax were less than 1% of your income, then fighting it on principle might be in the service of moral political principles, but is it in your self-interest at that point in time?  If the tax is 95% percent it is a different story.  It stays an immoral tax, just more so, but now, the fight for the moral political principle may well coincide with your self-interest.  It can be immoral of a government to prohibit a certain action, yet moral for a person to not throw himself in front of the juggernaut in an attempt to stop it (I believe that was Rand's description).

 

Remember Vietnam - It was a moral war in the sense that it was fighting against a communist aggressor nation, but it wasn't in the national interests of the United States.  Even if the war was moral it wasn't moral to draft young men to fight it.  Someone could be moral and acting in their self-interest when they joined to fight, or if they protested the draft and fled to Canada - it would depend upon how they had arranged their hierarchy of values and they stayed focused on their self-interest.

--------------------------

If you can be exempt from taxes on the basis of conscientious objection, then, as the Supreme Court ruled in Reynolds, even human sacrifice would be allowed. And in that court opinion, it was also asserted that law officers can stop a widow from immolating herself on her husband's funeral pyre. The libertarian claim that you have an absolute right to commit suicide is fallacious.

 

The supreme court should be weighing the intent of the founders as represented in the text of the constitution.  They should be deciding if the first amendment speaking to religious freedom exends to ignoring other laws.  Are the other laws constitutional?  You say that a person does not have an absolute right to commit suicide.  Assuming that the person is an adult (has their full set of rights), and is rational, then to say they cannot commit suicide is to say that they do not own their body or their life and that the government is the owner (or God, or society, or the nation).  That would be the opinion of progressives, fascists, the religious right, but not Objectivists.

---------------------------

 

The government has a compelling duty to protect those who cannot protect themselves. Children and the aged are easy examples. Anyone who exhibits irrational behavior can be (and should be) prevented from harming themselves.

 

Objectivists think in terms of individual rights.  Children and people who are mentally/physically unable to exercise choice are not seen as agents able to act to protect their own rights.  We have in our law, a recognition of this where we establish custodial care.  Parents (or guardians) are the custodian of a child's rights.  Government only steps in when a child's rights are being violated and then, a special case is made where the parent or the guardian is the violater.  We do something similar for the aged who cannot care for themselves.  In a hospital there is a chain of custodial duty that evolves out of familial relations, spousal relations, doctor-patient relationship, etc.  When a person is in a medical setting, and in a coma or otherwise unable to exercise choice, there is a means of determining the legal custodian of that person's rights.  There is NO compelling duty that magically arises in some altruistic context.  No.  Instead we create a set of laws that protect individual rights.  That is where these laws come from.  Just as civil courts provides a mechanism to right wrongs without recourse to the use of violence.  Why do this? Because without it, individual rights would be at risk.

 

Just laws arise out of individual rights.  Protection of individual rights is the purpose for creation of laws.  Altruism has held sway for many years and in doing so obscures the fact that it is not the reason for providing protection.



Sanction: 6, No Sanction: 0
Sanction: 6, No Sanction: 0
Post 7

Saturday, June 10 - 5:59pmSanction this postReply
Bookmark
Link
Edit

what, it seems, so many are claiming as discrimination is actually FAVORITISM - Sharia for example, which is a POLITICAL ideology masking as religious [as is, for that matter, the whole of Islam, devised by Mohammid as a means of 'justifying' his pedophilic, mysognist brigand predilictions, and those of his cohorts]...the same in referance to poligamy, which was forbidden in order to join statehood, THAT being discrimination by the religionist fascists of the day, and in violation thus of the first amendment... this country is NOT, nor ever has been, a Christian nation, despite the number of religionist fascists among us...



Post to this thread
User ID Password reminder or create a free account.