By: Dr. J. P. Hubert
Legal Stringency vs. Legal Laxity:
Not everything that is immoral is illegal in the West. There would be insufficient numbers of police and prosecuting attorney’s to process all of the crimes were that to be the case. As a result, some behaviors which are clearly immoral based on tradition moral precepts[1] are not made criminal e.g. adultery, homosexual activity, fornication etc (in Muslim countries which observe Sharia law however, many of these immoral behaviors are considered crimes and punished severely meaning their societies are legally stringent). The degree to which immoral behavior is not made criminal is a measure of the legal laxity of a society. For a detailed discussion of the relationship of the "Common Good" to Civil Law and human virtue see: Thomas Aquinas. Summa Theologiae, I-II, 96, 1-6 HERE...
Not all Immoral Acts are Illegal and Vice-Versa:
On the other hand, most things that are illegal are immoral, e.g. murder, rape, theft etc. Clearly there are some minor crimes e.g. failure to pay a parking ticket in a timely fashion which are either morally neutral or of minimal significance compared to major criminal activity. For all intents and purposes then, there exist few crimes which are not immoral as well. If too many clearly moral acts were punishable by law, not only would enforcement be impossible but justice would be unattainable as the civil law would be capricious and confidence in it would be destroyed.
The Correct Balance of Civil Laws and Moral Code:
The ideal balance in society is for major immoral actions/behaviors to be punishable by law as well. However, as a society loses its traditional moral integrity, it becomes necessary to substitute increasingly more and more stringent laws to serve as a substitute for the moral restraint which was once practiced by the populace. Taken to the extreme, a “police-state” will be required in cases where there has been a significant repudiation of traditional morality in practice. Such societal moral depravity simply cannot be controlled by stringent police-state tactics. There is no effective substitute for individual and societal moral restraint since it is impossible to place a police officer in every home, on every street corner and so forth.
Inverse Relationship between Morality and Civil Law:
For ease of handling, one might think of morality and civil laws then as being inversely proportional to one another. Where there is a high degree of morality in a population, there is less need for prohibitive laws and large numbers of police to enforce them. Where there is moral depravity, more and more legal impediments must be erected to control human behavior and a larger number of police and prosecutors are required to enforce them. This of course assumes that it is possible to determine right and wrong in the first instance which many Post-Modernists/Utilitarian’s/Hedonist’s/Moral Relativist’s often deny. [Not only do they argue that there is no truth (an epistemological claim) but that there is no fixed morality (a moral philosophical claim)]. Most proponents of post-modernism adopt some sort of Moral Relativism or Utilitarianism in which determinations of right and wrong become reflections of what is socially acceptable at a given time. Needless to say, that is a prescription for moral anarchy but unfortunately describes quite well the current situation in the “developed” West.
The Need for a Fixed Moral Code:
In any case, despite the claims of self-professed nihilists and other non-traditional moralist’s everyone behaves in their interpersonal relations as if a fixed moral code exists. For example, we all appeal to fairness if we believe that we are being treated inequitably. To say that we must be accorded fair treatment is to imply that a standard exists by which to determine fairness. That standard might be thought of loosely as the Natural (moral) law, what for example C.S. Lewis termed the Tau in his Mere Christianity, (San Francisco: Harper, 1952).
[2] In order for there to be a standard by which all can be equally judged, there must be a universal reality to which all may appeal. That reality can be thought of as our human nature or anthropology which is fixed by virtue of our being members of the human race. In a certain sense it is specific to our DNA although not simply an epiphenomenon of it. That fixed human nature or “being” then which exists in every person is the standard or template the “is” from which all behavior or “ought’s” must be derived.
It is pointless to argue that human nature or “being” is fluid and not fixed. Quite apart from the ontological implications which have been debated ad nauseum in the biological realm, if we do not assume a fixed human anthropology, it is impossible to devise a workable moral code to which all human beings can be held. The result is to render meaningless such statements as: “All human beings are entitled to life, liberty and the pursuit of happiness” or “all human beings should be treated equally” or “it is always and everywhere wrong to intentionally kill an innocent human being.” Under such a rubric (fluidity of human nature) it is impossible to derive any human rights at all since they become nothing more than claims which certain people advance from time to time against the ruling authority, which ultimately have no basis in fact or reality.
Their existence is as impermanent as the political power possessed at a given moment by the reference group or individual in question. That is to say even if a given human right is granted temporarily there is no basis upon which to believe that it will remain so. Moreover, when it is impossible to determine right from wrong because it is constantly changing we induce a societal form of cognitive dissonance. People assume a sort of “every man for himself” mentality. The result is selfishness, greed and often all encompassing hedonistic pursuits instead of selflessness, generosity and the seeking of the “common good.”
Human Rights must be based on a Fixed Human Nature:
What we have then is the truth that human rights must be tied to the fixed reality of human "being" or nature. If we assume instead that human anthropology is fluid, that human nature is not fixed or is indeterminate; we have moral anarchy due to the lack of a suitable universal referent. Tragically that is pretty much the case currently in the “developed” West and is also the main reason that much of the so-called third world a large percentage of which is Muslim finds us to be morally repugnant.
Quite apart from what we may see as the repressive nature of fundamentalist Islamic mores’, the actual moral code (as separated from the sanctions which enforce it) is much more compatible with traditional (Aristotelian/Thomistic) morality than that which is practiced in the West since it is based upon a more accurate assessment of human nature.[3] The Islamic moral code is simply closer to traditional (what was once termed Judeo-Christian) morality than is the Moral Relativism and Utilitarianism which has overtaken us.[4]
Where Christianity is different is that it proposes a complete or total spiritual conversion of the individual (through the power of the atoning death of Jesus Christ on the Cross) as the deterent against evil rather than the severe system of corporal punishment which is associated with Islamic Sharia law. In the former it is the positive transformation of the human person into an entirely "new creature in Christ" in the latter the negative reinforcement of physical injury or death. The Christian emphasis is on conversion and mercy while still maintaining a strict moral code, the Islamic emphasis is on an Old Testament form of severe retributive attempt at justice.
Historically over the past 50 years traditional (Aristotelian/Thomistic) morality has been progressively replaced in the United States and much of the West by a combination of Utilitarianism and Moral Relativism. This has been combined with a marked change in the judicial system from what was primarily Natural Law based jurisprudence to one of Legal Positivism or Pragmatism.[5] With the loss of traditional moral precepts there has been the expected increase in immoral behavior which to wit has been associated with a marked increase in law-breaking on the part of individuals and powerful group entities (such as major corporations, the Congress and the Executive branch of the US government).
Societal Moral Depravity Promotes Advent of Police State:
Some in the research community contend that Neo-fascist tactics are the result primarily of authoritarian personalities who periodically come to power and that fascist governments represent the occasional outlier or idiosyncratic development. Little recognized perhaps is the fact that when traditional morality is abandoned by a society, it becomes much easier for nefarious forces to introduce police-state tactics.
For example, in the wake of the 911 terrorist attacks, fascist neo-Nazi tactics were quite easily adopted e.g. USA Patriot Act, attempted suspension of Habeas Corpus, Torture of Prisoners, and Rendition etc. In part this was due to the fear which gripped the nation. The fact however that for decade’s traditional morality had been degraded adds to the ease with which heretofore unimaginable infringements were made on human rights. We had in a sense become accustomed to the need for prohibitive laws which took the place of traditional moral behavior in the aggregate. The corporate media was enlisted to convince[6] average Americans that we must even surrender certain of our basic human rights and liberty in order to ensure our national and individual security. Of course that would be unnecessary if as neighbors we trusted each other to do right and to be virtuous. The fact that we don’t should tell us something profound about our moral climate currently.
In the absence of a return to traditional morality as a nation, we will find it increasingly necessary to adopt more and more draconian laws by which to control human behavior. That is simply an inevitable outcome which results from the existence of the Natural (moral) law. If human beings will not voluntarily submit to the precepts of the Natural Law, then they will be forced to do so at the point of a gun or from behind prison walls.
The only other option is complete societal dissolution/anarchy where all positive civil law is suspended and where violence and a “might makes right” vigilantism is in force. The latter development is unlikely as long as our current oligarch’s maintain authoritarian control through progressively more stringent laws and prohibitions. The institution of Marshal-Law would be the logical next step or end-result of a further degradation in societal morality.
911 and a Constitutional Coup d'état Facilitated Police-State:
Professor Francis A Boyle a leading light in the area of constitutional and international law maintains that the US constitution has already been subjected to a Coup d'état in the wake of the 9/11 attacks and the signing of the USA Patriot Act, attempted suspension of Habeas Corpus and the practice of Torture and Rendition.[7] If he is correct than we are further along the path outlined above than I would have hoped. Boyle of course sees the problem as our not being willing to abide by international law and the treaties we have signed which have made them a part of US domestic law. He is certainly correct as far as it goes. The more fundamental underlying reason in this writer’s estimation however is the increasing moral depravity of the ruling elites which has now percolated down to the level of the average American. The “ruling class” should be very nervous now that the so-called “common man” has adopted their immoral code and jettisoned traditional morality. Historically, this is when “the natives get restless” and the Oligarchical regime is most potentially threatened by the masses who are no longer governed by a desire for justice rather than vengeance or a love of the common good.
To put a finer point on this concept; people often assume that is, take-on the morality of the civil law in which they reside. When the oligarchical regime intentionally adulterates the traditional morality of a society by moving it in the direction of Hedonism/Utilitarianism/Moral Relativism through the legislative process and the courts, the new “moral code” is eventually embraced by the masses. If something is made legal which previously was not, it is assumed to be moral and vice-versa. For example, after abortion was legalized in 1974; many Americans insufficiently grounded in traditional moral precepts decided it must be moral. This was made easier due to the fact that the political class and special interest groups engaged in a form of rank sophistry[8] rather than a probative analysis and debate regarding the actual biological, philosophical and religious implications involved. That sadly is still the case today.
Another example is the issue of gay “marriage” which while illegal in a majority of states and previously thought to be immoral by a majority of Americans, is rapidly becoming acceptable and is in the process of being legalized throughout the United States. The national trajectory is now in the direction of the legalization of gay “marriage” and along with it the assumption that gay “marriage must be morally licit.[9] The point is that the ruling elite’s who have abandoned traditional morality are able through their control of the political process and the media to normalize virtually any aberrant or immoral behavior. As they do so, they must enact increasingly more stringent laws to control the choices (many of which are largely immoral from the perspective of traditional morality) which the populace wishes to make and act upon.
Conclusion:
As a nation we have abandoned traditional morality in favor of a hodge-podge of non-moral philosophical theories including Utilitarianism, Moral Relativism and Hedonism all of which ultimately translate to personal selfishness. We no longer care about the “common good.” This has made it necessary and easy to establish a more and more stringent “police-state” domestically in order to control our now unbridled passions. Such things as “hate-crime” legislation are a good example of the result where the law now attempts to ascertain the moral intention of a given perpetrator of a crime. Needless to say this is not only legally improper but is unlikely to be effective. The proper place to consider “intention” is at the level of the moral analysis which should take place prior to the performance of a given act.
Just as in the case of gay “marriage” bans, the problem is not a legal one it is a moral one in this case the repudiation of traditional morality at the level of nation-state. In the history of the world, there is no precedent at the nation state level for reversing the current situation in which the common morality has been so seriously adulterated. Moral depravity of a nation predisposes to its self destruction from within and the foolhardy overextension of empire from without. For more see THIS... and THIS... That reality (US moral depravity) means that the survival of the American experiment (barring a fundamental change in national morality and or Divine intervention) is in doubt.
NOTES:
[1] When I refer to “traditional morality” or traditional moral precepts I mean Aristotelian/Thomistic moral philosophical principles, what some have called the Judeo-Christian ethic in the past although technically, the latter is less precise than the former in terms of performing a proper moral analysis of a given moral question. Some have utilized the phrase “golden-rule” ethic to summarize what they mean by traditional morality which is also less concise than the Aristotelian/Thomistic Synthesis. Human actions which are immoral from the perspective of traditional morality are not arbitrarily so characterized. The determination is made on the basis of what it means to be human or have a human nature and how a given human being is best able to actualize the attainment of the ultimate goal which is the Sumum Bonum or supreme good.
[2] Lewis made a variant of the so-called Moral argument for the existence of God and demonstrated that it was this that in large part was responsible for his conversion from atheism first to pantheism and then to Christianity. Today we have the interesting development that a notorious atheist philosopher has converted to Theism based primarily on the Design argument reworked in light of contemporary Astrophysics data which demonstrate that the physical constants of the universe are incredibly “fine-tuned.”
[3] This is to be expected since the Muslim philosopher’s were aware of the work of Aristotle’s metaphysics, philosophy of nature and his Ethics. In fact it is they who preserved his teaching throughout the Dark Ages prior to the time of Albert Magnus (St. Albert the Great) and Thomas Aquinas who combined Aristotelian philosophy with Christianity. For an excellent treatment of the Philosophy of Nature see William A. Wallace O.P. THE MODELING OF NATURE: PHILOSOPHY OF SCIENCE AND PHILOSOPHY OF NATURE IN SYNTHESIS.(The Catholic University of America Press, Washington, D.C. 20064, 1996). Click HERE...for a short video by Professor Wallace.
[4] The irony here is that the Neoconservative/Neo-Nazi political right which has taken over the Republican Party and the Neo-liberal left the Democratic Party are both further away from traditional morality than Muslim morality based as it is in Aristotle’s metaphysics and ethical theory. In Islamic societies in which there is no Radical Jihadism and absent Sharia, the moral climate is much closer to traditional morality than is the current immoral one found in the United States. Moreover, the Neoconservatives and Neoliberals largely embrace the Neo-Nazi moral philosophy of the Radical Zionist’s who now control modern Israel e.g. all accept the immoral “Bush Doctrine” of preventive war.
[5] John P. Hubert, “The “Fruits” of Legal Positivism: Utilitarianism in Action”, Intellectual Conservative, 09 December 2005, HERE....
[6] The FCM have taken on the role of the ancient Greek Sophists in manipulating public opinion on behalf of the ruling oligarch’s.
[7] Francis A. Boyle. Tackling America’s Toughest Questions, (Atlanta Ga: Clarity Press, 2009), pp. 39-47.
[8] Rather than asking if abortion intentionally kills an innocent human being (which is always and everywhere wrong according to traditional morality), proponents framed the issue as one of a women’s “right” to control her reproductive process. Such a “right” however does not exist in traditional morality based as it is on a fixed human anthropology. The USSC has said that such a “right” exists in the Constitution of the US (a debatable issue in itself) even though no such moral “right” could be found unless the court abandoned Natural Law jurisprudence in exchange for Legal Pragmatism. See footnote # 5 for details.
[9] See my blog post “The Problem with Gay Marriage Bans” HERE.... For additional background on Traditional Marriage contrasted with Gay “Marriage see THIS....
