The Psychology of Mask-Wearing
(updated July 4th, 2019)
A meme making the rounds on Facebook (shared by the ever-provocative Dominic Foo) poses an interesting question: either “our rights come from God not government” or “Immigrants don’t have the same rights as Americans.”
It would seem that one or the other applies: if our rights come from God, then why do the citizens of one country see less or fewer of them than the citizens of another country? Are we supposed to believe that God endows one people with more rights than another, and that all government does is respect those rights? That would allow us to make choice #2. Or, if our rights come from God not government without respect of persons, hence choice #1, then that entails that we allow people to flee from one jurisdiction, where those rights are not respected or even recognized, to another jurisdiction which acknowledges these rights from God.
In other words, on this 242nd anniversary of the signing of the Declaration of Independence, we are once again faced with the conundrum the Declaration poses. For if it says anything clearly, it says that “all men are created equal.” So then, if we are to believe that its portentious phrases apply to all human beings equally, then indeed, immigration restrictions, among other things, stand in the way of their fulfillment. Just as in 1776, if those phrases had really been believed and taken literally, the slaves would have to have been freed immediately. But they weren’t.
The same thing is true regarding the restrictions on sexuality in favor of traditional marriage and the family. Say what you will about Anthony Kennedy, in his jurisprudence regarding homosexuality and marriage culminating in Obergefell v. Hodges, he was simply being faithful to these same portentious phrases.
For some time now, the jurisprudence has been catching up with the text of the Declaration. This explains the lack of push-back on the part of the political opposition. There is indeed opposition among the so-called “deplorables,” the grass roots, but this opposition is not receiving the representation one would expect it to. Not only electorally, but also in the institutions of public life, ranging from government to the schools, academia, the news and entertainment media, etc.
The reason is precisely the jurisprudence catching up with the text. Which is why such issues are characterized as inevitable. So to be in favor of gay marriage is to be “on the right side of history.” To be opposed is to be as retrograde as it is to be opposed to human rights generally. It is no good to refer to thousands of years of contradictory human history, to self-evident laws of nature, to the teaching of all religions everywhere, to the teaching of the Christian church, to which the majority of persons in the United States still professes to adhere, to the teaching of the Bible. None of that matters, because “history” is on the side of gay marriage.
On the face of it, stated as baldly as that, it seems astounding that this kind of argument could gain the ascendancy. Nevertheless, this decision is now “the law of the land.” And at this point, it would appear that it will be groups opposing this newly minted institution who will be fighting to survive. Because the entire machinery of federal, state, and local civil-rights legislation and policy, when the party in power favors it, will be brought to bear upon those recalcitrants. Caveat ecclesia.
What explains this inevitability? Quite simply, the natural rights paradigm that is enshrined in the Declaration, and which was placed at the heart of Western legal and political institutions beginning in the 17th century. That’s right: the document signed 241 years ago ratified the state of affairs that would eventually produce, e.g., same-sex marriage.
Of course, the Founders would be rolling in their graves if they had known that this would be the end-result of their work. Which would seem to be prima facie evidence against my thesis. “Balderdash!” they would exclaim. But a short explanation of the mechanics will elucidate my meaning and confirm the thesis.
Time and again, the justification for all of these jurisprudential “advances” is found in the 14th Amendment to the US Constitution. On the face of it, it seems odd that the rights-ore that the Court has mined from the Constitution, it has mined from this text. The language is standard Lockean phraseology: rights to life, liberty, and property, along with a right to due process of law in adjudicating those rights; and that these rights accrue to every American citizen, either naturalized or born on US soil. How is it that rights of such divergent import (e.g., privacy justifying a right to abortion, same-sex marriage, non-citizen welfare benefits), having nothing to do with the ones here enumerated, have nevertheless been teased out of this?
It is because an enumeration of rights presupposes a mechanism of rights from which the enumerated rights have been derived; it is the mechanism which matters, standing as it does, over and above any listed enumeration and any law which might presume to contradict it. And this is what generation after generation of Supreme Court justices has divined.
What is this mechanism? The mechanism of subjective right, not in its proper place as a subordinate component of the legal order, but elevated to the status of sovereignty: the individual will is supreme, sovereign; it shapes and determines its environment according to its wishes, for its ends; and it is entitled to these fruits of its will. Entitlement, rather than virtue, becomes the point of the exercise. This becomes the ultimate source of law. The proper relationship of law and rights, expressed in the primacy of objective over subjective right, so laboriously elaborated in the centuries of Christian-Roman jurisprudence, was reversed in the 17th century, in order to supersede the requirement of appeal to the law of God. Instead, the appeal is made to a common humanity. This enabled our stalwart forefathers to supersede religious conflict, but it also gave birth to the jurisprudence which in straight-line trajectory has brought us to the point we are at today, and is poised to take us far beyond. At least, until the supporting framework – a functioning social order – collapses. After all, only so much of this subjectivism can be borne.
We all, wittingly or unwittingly, think in terms of this mechanism. The only difference between conservatives and progressives is the use to which they wish to put it. Historically, classical liberals put it at the service of property rights; nowadays, progressive liberals put it at the service of the pursuit of happiness. But at the end of the day, we are all liberals – we all believe in this project, the primacy of the sovereign individual. Which is why classical liberals continuously get their clocks cleaned by progressive liberals: the inner logic of the mechanism favors progressivism.
Jefferson’s formulation already lifts the veil on this aspect of the mechanism: instead of the Lockean triad of life, liberty, and property, he put forward life, liberty, and the pursuit of happiness – this latter being an utterly unjurisprudential goal because amenable to a range of interpretations. Nevertheless, quite understandable and even necessitated in terms of the mechanism – how could it remain restricted to mere property? The final paragraph of the majority’s opinion justifying its decision in Obergefell v. Hodges reads as a further elaboration of this pursuit of happiness, a paean to the Jeffersonian platitude, notwithstanding the dissenting opinion by Judge Scalia that it sounded more like “the mystical aphorisms of the fortune cookie.”
Fortune cookies tell the future, and this jurisprudence is rife with predictive capacity. We are headed towards a world not only in which the family as traditionally construed is doomed, but also in which the church is doomed. For the teaching of the church with regard to homosexuality is now ipso facto discrimination, soon to be classified as hate speech. Canada has already started implementing this reality, as has the State of California.
But there is much more in store for our country and our world. Nationhood itself is being obliterated before our very eyes, and by the same mechanism. What else could possibly be the rationale behind the importation of entire populations of underclass citizens of foreign countries (e.g., 25% of the Mexican population)? It is more than just “cheap labor” (that panacea of our latest iteration of corporate capitalist exploiters), for with the wonders of modern trade deals, that labor can be accessed just as easily and at just as permanently low wages in their countries of origin. No, it wasn’t enough that a demographic ticking time bomb is set to go off as the baby-boom generation retires and transitions into a giant mass of non-working dependents; no, we need to import millions more of low-wage, unskilled workers better fitted to serve as a voting bloc for entitlements, forming yet another mass of insufficiently productive dependents. Just how many entitlements can our system bear? We will soon find out.
We have our rights mechanism to thank for this, because the rationale for these kinds of otherwise irrational policy choices lies precisely in the putative entitlement perceived to accrue to each individual person regardless of race, religion, sexual orientation, or whatever other criterion strikes the fancy. This entitlement is what government can guarantee, what gives it its raison d’être, until of course it runs out of the wherewithal to furnish the entitled with what they are entitled to according to the latest bulletin of abruptly, blindingly, obvious self-evident, ungainsayable, inalienable rights.
This is what has happened with one group who have been promised so much in terms of entitlement – the African American population. They have been promised everything, and how much do they have to show for it? But no worry, any blame can be attached squarely to, well, Republicans, or the rich, or white people generally, or the police. Let it never be made known that their champions in the public square, the Democratic party, are the same ones who are allowing the importation of mass quantities of cheap labor competing precisely for the same jobs in the same labor market as many African Americans do, making it even more difficult for said African Americans to break out of the spiral of poverty and dependency. If they knew it was the Democratic party and its policy of open borders that ensured an unemployment rate for black youths far in excess of other ethnicities, would they care? Who knows? And if they knew that all the fomenting of racial discord and antagonism that has taken place in recent years was done precisely to cover up for this other policy, to divert attention from it, so as to keep the voting coalition afloat – would they care? Who knows? After all, the mechanism has us all in its thrall.
What we do know is that America as we know it is on life support. Nationhood itself is on life support. The end game for the people behind these developments is the drastic curtailment of national sovereignty in favor of world government and universal jurisdiction, the better to implement universal entitlement. America – the world’s last superpower – stands in the way of this.
It also entails the right to be free from preaching about sin. Here, it directly confronts the church. Stalin once asked derisively, “The Pope! How many divisions has he got?” Our contemporary politicians and academics and members of the power elite ask themselves a similar question. “Christians! How many votes have they got? How many teachers in the public schools? How many professors? How many judges? How many CEOs? How many journalists? How many media moguls?”
The trajectory should by now be clear, and it applies just as well to the question of immigration. The forces for open borders, which thus oppose restrictions on immigration, especially on the most disadvantaged, may seem now to be in the minority, but in terms of the inner logic of the mechanism enunciated in the Declaration of Independence and further developed in the 14th amendment and subsequent court decisions, they have “history” on their side. Unless and until the mechanism itself is combated and defeated in the halls of jurisprudence and the pillared shrines of justice, we can already project where this too will end. After all, by now we’ve seen this movie.
The current COVID-19-inspired crisis has yielded a golden opportunity to take a scientific look at underlying social forces. (By scientific, I refer here not to natural science, but to analysis, the objective appraisal from the proverbial 30,000 feet, which is of course scarcely possible for mortal flesh, but at least is an aspiration.)
What it has revealed is two basic orientations vying for supremacy. They can be labelled the Hegelian and the Hayekian. The one focuses on a top-down response, the other on a bottom-up one. And underlying these predilections are clusters of understandings. Let’s examine them.
Who/what is the Hegelian?
G. W. F. Hegel was a German professor of philosophy in the early 19th century, whose influence extends far beyond the classroom. In fact, he formulated the mindset that dominates a great swath of modern society, in particular many in leadership, but beyond that, all those, usually formally educated, who feel the need for intervention to stave off the doom scenarios born of unregulated, chaotic, every-man-for-himself behaviors. Hegel localized such behavior in civil society, which thrives on supposed egocentric self-interest; he saw its restoration in the “ethical substance” come into its own, the state.
In contrast with the freedom of trade and commerce in civil society, the other extreme is the provision as well as the determination of everyone’s labor through public operation, such as the ancient work of the pyramids and the other tremendous Egyptian and Asian works, which were brought about for public purposes without mediation of the individual’s labor in terms of his particular choice and particular interest. This interest calls for freedom against regulation from above, but the more blindly it is sunk in its selfish purpose, the more it needs to be brought back to the universal, and to mitigate its dangerous convulsions, shorten the intervals in which collisions are settled in terms of unconscious need.
The state unites the individual to the universal. It is the realization of ethical life, by which civil society, the realm of freedom of action and association, is saved from the conflict in which it is mired. And so the state brings civil society to the fulfilled ethical condition by way of conscious intervention. In essence, the state is the conscious, purposive activity of the collective, against the blind unconscious activity of free actors pursuing their own ends.
And by extension, this state is not necessarily the democratic state ruling by consent of the governed. No – it being the higher consciousness of man, it rules over the governed. Democracy is something to be suffered when not surreptitiously superseded. Stahl put it succinctly:
[Hegel’s] desire is for reason to rule, for what is objective and necessary to occur…. But for him this reason is logical formalism, and as far as the institution through which it is to come into existence is concerned, Hegel is predominantly on the side of rule from above as opposed to building from the bottom up and from inside. His doctrine is as little ultraroyalist as it is ultraliberal; but it is ultra-governmental. Everything should be accomplished through ordered (objective) power, the government, while the people accept this consciously and thereby freely; but the reverse may not also take place, whereby a work is accomplished out of the free, innermost personal drives (subjectivity) of the individual, of associations, the people, the estates…. He is an opponent of the free movement which emerges from the unordered and unprepared into order and clear shape, and no less the inviolable rights the holders of which must be brought into connection with the jointly beneficial, through inner conviction. All of this is the necessary result of the system as a whole, which everywhere stands only on the impersonal, substantive, logically necessary, and pushes personality (subjectivity) down into a dependent moment, in itself without content, the only purpose of which is to reflect the former.
This is the mentality. In history, it was carried forward by men like Henri de Saint-Simon and Auguste Comte, converted by them into a scientistic technocracy which would rule over the unreasoning passions of the common run.
That is one mentality ascendant in our society, but there is another: the Hayekian. The exemplar of this is Friedrich Hayek, Nobel prize winner for economics in 1974 for his “penetrating analysis of the interdependence of economic, social and institutional phenomena.” Hayek’s vision of an interdependent society built upon the spontaneous expression of citizens pursuing goals of their own device, and in so doing generating symbiotic, synergetic order, is the polar opposite of Hegel’s.
The key device through which such order is made possible is the rule of law. Established rules made known to all enable them to compete and coordinate without subjection to a higher directing authority. The rule of law makes possible spontaneous order, as opposed to the consciously-planned and -imposed order of the Hegelian, which is the order of an overarching organization.
In the terms we have adopted this means that the general rules of law that a spontaneous order rests on aim at an abstract order, the particular or concrete content of which is not known or foreseen by anyone; while the commands as well as the rules which govern an organization serve particular results aimed at by those who are in command of the organization.
Society is spontaneous order; it is not an organization. But this sticks in the Hegelian’s craw. The attempt to convert it into an organization is what drives him (or her).
The rationale behind social control has mutated through the generations. It was born in the time of the industrial revolution and indeed in response to it. So the first form was economic, as witness Marxism. Indeed, Marx is perhaps the most notorious member of the club of so-called Left-Wing Hegelians.
This spurred the drive for economic planning, which reached its zenith in the early and mid-20th centuries. The “planned economy” as exemplified first and foremost by the notorious Soviet Five-Year plans, slowly lost its allure, especially during the Cold War with the concomitant comparative analysis between the West and the communist powers, e.g., West and East Germany.
And so communism lost its bid for world power in favor of capitalism. This ushered in “The End of History.” Right? Wrong! With the collapse of the Berlin Wall, new bearers of the Hegelian mantle rushed in to fill the void.
Immediately picking up the baton was the environmental movement. Although its roots lie in the 19th century, this movement began in earnest in the 1960s, picked up headway with Earth Day 1970, and became the major proponent of an agenda of drastic social control in favor of world population reduction and curtailment of capitalist industry. By the 1980s it too had lost its way. That is, until global warming/climate change came along. As a result, for the past 30 years we have been subjected to massive top-down diktat to – get this – stop the world’s climate from changing.
Into the fray has sprung COVID-19. This virus has provided another pretext for the same agenda: social control.
To this end, the Hegelian is championing lockdown.
At the beginning of the crisis, it seemed the logical thing to do, and the vast majority of peoples and nations implemented some form of it.
But along with it has come economic devastation, the likes of which we have hardly begun to experience.
Yet many are oblivious. People seem to think, and the Hegelian does not seem averse to feeding the illusion, that consumption can be separated from production, that we can go on consuming without getting out there and producing. Just keep spending, congressional bill after congressional bill; a trillion here, a trillion there, pretty soon you’re talking big money (h/t Gary North).
The illusion that production and consumption can be separated was fostered by the abundance made possible by the Industrial Revolution. But that does not mean that it is actually feasible. The most basic law of economics is Say’s Law: supply creates its own demand. The corollary to that law is, if you don’t produce, you won’t consume. Production and consumption are inextricably linked. The modern globalist economic framework has gone far to pulling these apart from each other, the better to play the middleman and engross the surplus value which is made available in this way to those who command the heights of the world economy. But just as this system of trade imbalance only leads to indebtedness which is unsustainable in the long run, just as unsustainable is the mirage of consumption without production.
The driving force behind Marxism in all its economic forms is precisely the separation of production and consumption: “from each according to his ability, to each according to his need.” A wonderful expression of distributive justice. But a complete denial of the other, neglected form of justice, known as commutative.
Commutative justice is the justice of freedom and equality whereby spontaneous action is coordinated and integrated instead of being directed, subsumed in terms of an imposed purpose. It is the true social justice: for society is not an organization.
And it imperiously decrees the link between production and consumption. In fact, Say’s Law is its economic expression. Is it fair that what one produces, another consumes, without reciprocal recompense? Perhaps in the realm of distributive justice, but not in the realm of commutative justice.
Cancel commutative justice in favor of distributive justice? We may as well cancel pluralism, freedom of action, the pursuit of self-chosen goals as well. Commutative justice makes room for the pluralistic, associationalistic society which breaks with the groupthink of the monolithic group. The Hayekian, spontaneous order is precisely the expression of commutative justice. Or better, it is the order which comes about when distributive justice is incorporated within the framework of commutative justice. That is, the organizations and associations which, each in its own way, incorporate distributive justice, are themselves coequal partners, islands in the ocean which is the greater, spontaneous order. In this dialectic, Hayek subsumes Hegel.
It is the inevitable framework of a complex social order.
The more complex the order aimed at, the greater will be that part of the separate actions which will have to be determined by circumstances not known to those who direct the whole, and the more dependent control will be on rules rather than on specific commands. In the most complex types of organizations, indeed, little more than the assignment of particular functions and the general aim will be determined by command of the supreme authority, while the performance of these functions will be regulated only by rules – yet by rules which at least to some degree are specific to the functions assigned to particular persons. Only when we pass from the biggest kind of organization, government, which as organization must still be dedicated to a circumscribed and determined set of specific purposes, to the overall order of the whole of society, do we find an order which relies solely on rules and is entirely spontaneous in character 
Commutative justice there must be; it decrees that production and consumption are one. It is a dangerous illusion to believe that consumption can go on without production. It feeds the illusion that people can sit at home in some sort of lockdown and expect the supermarkets to remain full, the gas stations to keep pumping, the electricity to keep running, etc., as if all production is just there, like the sun and moon and stars. Not at all… the same people who consume have to produce. If you lock people up in their homes and don’t let them get back to work, soon not only they but everyone, even those in “essential” work, will start feeling the effect in the form of shortages and rationing – indeed, a wartime economy. Which is what the Hegelian has been after all along. Does it matter that in terms of productivity such an economy cannot come close to the levels achieved by the spontaneous order? Apparently not. And in the environmentalist vision, that is actually a point in its favor.
But is not this lockdown, this strangulation of the economy, being done in pursuit of a supreme goal, the preservation of life? We hear that we cannot survive this virus, or at least we cannot reduce the loss of the life, without resort to these draconian measures. And to ease them, lift them, suspend them, is the heighth of irresponsibility.
Is that so? Consider this: flattening the curve does not reduce the area under the curve. Which is to say, social distancing and economic shutdown do not eliminate the virus, they only stave off the point in time at which individuals will come in contact with the virus. They only delay the inevitable.
Even worse: what this enforced isolation does accomplish is the delay of the only surefire antidote to this affliction, and that is collective immunity. Once a sufficient level of immunity is achieved across society, viruses find themselves unable to sustain themselves, so they subside. And once that has been accomplished, the elderly and other vulnerable members of the population can come out of hiding. In the meantime, they and they alone should be sheltering. Barring the discovery of an effective, sure-fire vaccine – rather wishful thinking at this point – this is the only way out.
Does this solution sound like it dovetails nicely with the Hayekian approach? It does. Which explains the knee-jerk, froth-at-the-mouth reaction against it. But the fact of the matter is, the social organism will spontaneously rid itself of this threat. The Hegelian interventionist approach makes for great theater, but in the end accomplishes nothing. Except, that is, the destruction of the economy. The better to remake it in the planned technocratic, environmentalist image? Time will tell.
It may well be that the effort will end up backfiring miserably. One of the inevitable consequences to this crisis is that that world economic order is being upended. The nations will be reordering their economic relations, this time away from globalist just-in-time supply chains, and towards redundancy and domestic production. The time is ripe, not for a Hegelian, but a Hayekian reboot of the economic order – at least, if the effects of neo-Keynesian deficit spending can be shaken off (a big if).
In all aspects of this crisis, the Hayekian will move to the forefront, once the fetters of imprecise and overly draconian public health measures are cast off, by which flies are dropped with cannons, gnats are strained, and camels swallowed.
Stand aside, Hegelian.
 Grundlinien der Philosophie des Rechts [Outlines of the Philosophy of Law], §. 236.
 Stahl, Geschichte der Rechtsphilosophie [History of Legal Philosophy], pp. 475—476.
 Law, Legislation, and Liberty: Volume 1, p. 50.
 Law, Legislation, and Liberty: Volume 1, p. 50.
Cutting through the morass of legal arguments for and against the Trump administration’s executive order (EO) instating a so-called travel ban, is no easy task.
The circuit court’s temporary restraining order (TRO), and the appeals court’s argument upholding the restraining order, make much of the harm being caused to various parties – aliens, residents, communities – by the executive order. According to the TRO, this is one of the criteria for granting a stay.
But at the end of the day, it is a question of law, and the merits of the case must be determined by reference to the law.
Many voices are calling out that the suspension of the EO is a “victory for the rule of law.” Obviously, then, this ruling by the courts must be in accordance with the law.
But what is the law?
On the one hand, there is the administration’s argument that, according to the law, the president has the power, for reasons of national security, to determine which foreign nationals are to be allowed into the country. The authorization for this is found in the U.S. Code, Title 8, Chapter 12, Subchapter II, Part II, § 1182, subsection f. It reads like this:
(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate….
This provision, in turn, is based on Article I, Section 8 of the US Constitution, which gives Congress the power to regulate affairs relating to immigration.
This would seem to be a fairly straightforward case. The statute appears to give the President full authorization to do whatever he thinks fit with regard to the restriction or prohibition of aliens into the US whenever he deems such to be detrimental to US interests. There is no condition here for other powers of government, whether legislative or judicial, to second-guess his judgement on this matter.
But this is what the courts have done. They have required the government to demonstrate the need to take the course of action it has taken, viz., to prohibit the entry of aliens from certain countries. The government has indicated that this action is being taken to ensure the safety of its citizenry, while the courts have, e.g., stated (erroneously, as the government later pointed out) that no citizens of the countries under question have perpetrated acts that infringed that safety.
So it would seem that the courts have arrogated to themselves the authority to second-guess policy regarding national security, not on the basis of law, but on the basis of a judgement regarding the wisdom or lack thereof of policy. But the statute in question, as we have noted, does not give the other branches the authority to conduct such policy reviews.
This is fearful ground upon which the courts are treading. Still, beyond the charge that can be lodged against them that they are opposing the EO because they oppose the policy, is the fact that they are using the law to obstruct that policy. So how does that work, if the statute is so clear?
Essentially, in the name of a higher law. For the courts, there is a law that is transnational, an expression of, in this case, universal human rights. One of these rights is freedom of religion – that people may not be discriminated against on the basis of religion. It is for this, at bottom, that they oppose the EO.
Without referring to a higher law, the Constitution itself could be referenced to bolster this claim. Firstly, there is the religious test clause in Article VI, Section 3: “No religious test shall ever be required as a qualification to any office or public trust under the United States.” But as one can see directly, this test only applies for public office. It does not apply to other areas.
Secondly, there is the establishment clause in the 1st Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Professor Alan Dershowitz has stated (as reported here) that this would ground an objection to the EO: “A good lawyer … can argue that this is a prohibition on not only Congress, but on the president, and here we have a law that establishes religion by preferring Christianity over Islam.”
Actually, an EO is not a law per se. But the law upon which the EO is based is the one referenced above, which states that the president can exclude any class of alien he likes if he deems them to be detrimental to US interests. So apparently what Prof. Dershowitz is saying is that § 1182 of the US Code, not the EO, is unconstitutional because it violates the establishment clause. But that particular law has been on the books for 65 years and adjudicated many times, and it has never been suggested that it is unconstitutional. So it would seem that would be a difficult undertaking, regardless of how good the lawyer might be.
It appears to me that the courts are skirting precisely such questions as this, in order to found and develop within a trajectory of decisions and precedents of US jurisprudence a corpus derived neither from statutory nor constitutional law, but from a form of transnational law that has no real source, nor any sovereign authority, nor any standing within positive law as currently embodied in US law.
Of course, other countries, mainly those within the tradition of the French Revolution and the ensuing Code Civil, enshrine the principle of freedom of religion such as is envisioned by the courts opposing the EO – but that legal tradition is foreign to the common-law tradition and has no standing within the US.
But provisions of international law and foreign civil law nonetheless have been finding their way into jurisprudence through the courts, and this appears to be another attempt at accomplishing this surreptitious legislation from the bench, setting aside the standing law of the polity.
What this means is that the jurisprudence being practiced by the 9th Circuit Court of Appeals is natural-law jurisprudence. Natural law is higher law – it embodies higher principles, the principles which positive law is to reflect, in this case, human rights such as a universal freedom of religion. Positive law is the specific expression in time and place of the natural law.
What we argue here, however, is that natural law cannot take the place of positive law. The latter, being the specific expression of the former, is the law which actually applies in the courtroom. Positive law is the law upon which the sovereign has set its seal, stating that this is the law of the land.
The 19th century statesman and constitutional scholar Friedrich Julius Stahl made these relations very clear. In his treatment of the principles of law, Stahl makes some important distinctions.
He starts by contrasting human (positive) and divine (natural) law, arguing that only the former is law strictly speaking. “Law is human order, albeit for the sake of maintaining God’s world order. It therefore exists as men in a particular time, in a particular country, have established it, and it exists because they have so established it, whether good or bad, and not because they in that manner had so to establish it, in accordance with a necessity in God’s command. This means that law is positive, but that in the concepts and commandments of the world order of God it has a higher law to which it ought to answer, according to which men ought to establish it.”
So there are both natural law and positive law; natural law is higher but therefore also stands at one remove. In fact, it cannot function as law properly speaking. Instead, it functions as the basis and standard of positive law. “Positive law has over against it a God-commanded, just, rational law. Even so, this rational law, the concepts and commandments of God’s world order, are not themselves a law – a so-called natural law or law of reason – since the essence of law is precisely to be an independent human life order, therefore positive law. Even so, they are the determining power in positive law, its original ground and archetype, the standard by which it is measured and judged” (p. 33).
What is it about natural law that renders it unsuitable as law for human order? First, the elements of natural law are “are lacking in a determinate shape, the provision of which is the vocation and the freedom of the people. The people themselves, in accordance with the particularity of their spirit and their conditions and with their own creative power, are to give definitive shape to them, to particularize them and thus also to individualize them; and only then do they become applicable norms, or law” (p. 34).
It is like an artist or a sculptor who takes general ideas of the human form and makes specific application of them in a determinate painting or sculpture.
The foundational concepts and relations of the law are in similar manner grounded in God’s world order, are divinely necessary, but the specific way in which they are implemented is humanly free …. Human freedom is not left simply to sharpen those eternal ideas to a point, so that e.g. positive law need only supply the time interval of prescription or the forms of testament, but it is entrusted with the plan of its realization in general. Thus e.g. … whether the entire institution of property is to be regulated in accordance with the Roman law or with Germanic law, etc., is a free human conception, which although moved and determined by divine commandments nevertheless has its coherence and coordination only in itself. All legal construction therefore has a dual aspect, a divine necessary (natural-law-oriented) and a human free (positive), both permeating each other without dividing line, existing in indissoluble unity (pp. 34-35).
This being the case, positive law is that which the state is to establish and further. It does so more or less in accordance with natural law; but at the end of the day, the product of the legal process by which law is made, and not those transcendent principles, is the law that is to be enforced by the magistrate. Positive law, not natural law, is the law that binds the citizen, the magistrate, the police force, the courtroom.
Underlying the idea of a “natural law” are in fact those concepts and commandments of God’s world order, the law-ideas; the latter, however, have neither the required specificity, nor the binding power of the law. They are grounds for determination of the further development of the common condition, not norms already in force for the common condition. There are therefore rational demands on the law, but there is no law of reason. Subjects may not oppose positive law, either as individuals or in the mass, by leaning on natural law; this is the iniquity of the Revolution (p. 36).
Therefore, “The ruling authorities are to uphold the positive law, not the natural law. In particular, the judge is not to pass judgement in accordance with natural law, be it against the positive law, be it only in addition to positive law (subsidiary).” Natural law lacks the required objectivity and precision, leaving the judge to his own ideas: “The judge would be referred … only to his judgement as to what he regards to be natural law, at best he would speak therefore only as an individual (as a mere arbitrator) rather than as a real judge, i.e., as an organ and a representative of national legal judgement, and even with respect to his own judgement he would only find a general legal maxim and not a specific manner of restoring the wrong, which insofar would be arbitrary or based in vague equity” (pp. 36-37).
But this would violate the rights of those either seeking redress at law or being arraigned. Hence, the application of natural law in the courtroom is legally impermissible as well. “Every man has the right not to be subjected to any other norm than those which are established as the objective order of the common life, which are sanctioned by the ruling authorities, as the norms of positive law.” It is an illusion that we would be better served by a jurisprudence of this sort. “The rule of natural law instead of or in opposition to positive law has the appearance of establishing the order of God over the order of men: but it is precisely the human order, the law, which is consecrated by God; it is the only common public order that He has ordained over men on earth” (pp. 37-38).
The upshot of all of this: “The rule of natural law is … only the establishment of the arbitrariness of every opinion regarding the common public order, it is the establishment of the war of all against all” (p. 38).
In the current situation, the courts need to take a step back and realize what it is they are doing. They are engaging in a practice which can only lead to the chaos of competing laws and competent authorities. By overthrowing positive law through an appeal to “higher principles” – mind you, not the Constitution, but principles standing outside the legal order itself – they are sowing the seeds for the destruction of that legal order.
Regardless of one’s opinion regarding the worthiness or lack thereof of the EO, this is not the way to deal with it. It is a question of policy and thus politics, not of law. The law itself is quite clear on the matter. At least, the positive law, the law as it stands on the books. But the law in the heads of judges who have taken it upon themselves to legislate from the bench is another thing altogether – regardless of the rightness or wrongness of those judges’ ideas.