Posted on 02/08/2010 7:49:03 PM PST by kingattax
Pre-Apology: Sorry for the long post, but ...
Um, Herb Titus was Dean over at Regent, but never at Liberty. I should know. I am a member of the first graduating class (2007). We’ve had Dean Green and Dean Staver, and that’s it.
Having said that, we did make a point of studying Titus as part of our curriculum. The relationship between Biblical law and civil law is more complex than simply importing Mosaic statutes at a whim, and Titus was a good introduction to that difficult subject.
As we learned, there is a history to the role of the judiciary in the formation of law, and much of that history involves the identification of natural law principles, rooted originally in Scripture, but found to be viable for the broader society due to universal appeal. Murder is a great example. There are lots of practical reasons why a pluralistic society would adopt such a rule regardless of whether a theological premise was used to justify it.
However, unlike our current experiment in positive law, natural law principles were held to trump the adverse opinions of any social agents, whether legislatures, executives, or courts. For example, if life and freedom do not stand in the role of such universal maxims, then how is it that we call then inalienable, for they clearly are alienable under positive law, which is the antithesis of natural law.
BTW, for those who don’t know, positive law is the assertion that the only necessary and sufficient condition to the validity of a given law is that the legislative body has asserted it to be law. This is a dangerous basis for law because historically, positive law has allowed for such things as the atrocities tried at Nuremberg. Until relatively recently (as the article points out, pre-Holmesian era), the presence of a natural law accessible to the conscience of descent people everywhere acted as a check on positive law, a way to prevent obvious abuses. The defendants at Nuremberg were found guilty because, despite their “legal orders” to commit genocide, they were held accountable to a law higher than their human lawgivers.
Thus, when Titus references Lincoln’s appeal to conscience regarding slavery as the basis for rejecting Dred Scott, he is really making a direct appeal to that natural law, and, reasonably, I think, seeking to apply it to the modern abortion dilemma.
Now, having said that, let’s do clear one thing up. There is not a sufficient consensus on natural law in the modern legal community to allow the prosecutorial strategy work. From day one in a secular law school, students are systematically taught to separate their inner moral sense from the cold and dispassionate operation of the law. They are thoroughly indoctrinated into viewing law through the positive law lens. The idea that the executive branch might rightly engage in an operation of human conscience and independent legal analysis that put them at odds with a bad decision of the judiciary would be a completely alien concept to most of them.
Further complicating things, as our friend mindbender points out, there is a bit of legal tradition to support the idea that courts do in fact contribute to the law-making process. In the development of the British Common Law, the law of the King would be crafted and disbursed to judges out in the hinterlands to apply in specific cases. As this process matured, it became evident that the legislative function was too abstract; they simply didn’t account for all the possible scenarios of fact that could unfold in specific cases. Thus, it really did fall to the judges to fill in those gaps with decisions as to how the gray areas of the law should play out in unique fact situations.
That situation worked well enough when the culture was in a general consensus on natural law principles. Both King and Court knew enough about moral common sense, rooted largely in the Bible, that you could expect, more often than not, those gap-filler laws created by the bench would be morally and legally coordinated with the legislated law, and that eventually, the gap-fillers would get back to the legislature and rise to statutory status.
However, once natural law was eviscerated by Holmes and the “Realists,” the tradition of judicial law-making synthesized with the raw, arbitrary power of positive law to give us our current Nietzschean Nightmare. If you are following closely, you may recognize that this, as much as anything else, is an intended target of Team Obama, to finally lay to rest the idea that natural law can be invoked against an authoritarian legislative body.
That is why it is so important to keep pressing back in the other direction, to openly question both the moral and legal authority of decisions like Dred Scott, or Roe, or Kelo, the more recent attempt to abuse the Commerce Clause to impose the now infamous Individual Mandate.
The problem is, how best to do this? Titus is recommending a direct grass-roots, prosecutorial approach. Pragmatically, that will probably not work. However, what it will do is get people thinking and talking. There needs to be a raised level of awareness before the problem can be confronted head on, and the Titus approach can help that way.
BTW, Falwell started Liberty School of Law as yet another strand of that strategy. As LSOL graduates, we were systematically trained in how to forge a reasonable, viable relationship between the universal axioms of moral truth and the law of the public square. We are now generating hundreds of graduates, many of whom are far better trained than their secular counterparts in the theory as well as the practice of law, and who will, over time, provide a legal culture more amenable to a relationship between the judiciary and the legislature based on sound natural law principles.
New tagline...
“The man who resorts to labeling others with simple terms in a complex world labels himself a fool.”
I stand corrected.
You may argue these points all you wish, but the roles of the three brances of the government are settled law.
Any person who tries to make the argument that this author does simply causes serious schollars to disregard everything else he says.
From a legal POV no new law was created. Heck, the States were not forced to set up their own abortion mills, they were just forced, through again, penumbras, of letting killers on demand to take up shop in their great States (Also forced not to restrict murder for convenience).
Congress and the States could counter this ruling but too many of the electorate wanted to get rid of "mistakes" and thus prevented a CONSTITUTIONAL amendment to counter the SCOTUS (There is your checks and balances).
This author may argue these points all he wishes, but the roles of the three brances of the government are settled law.
Any person who tries to make the argument that SCOTUS decisions are not law of the land simply causes serious scholars to disregard everything else he says.
He is not atacking Roe v. Wade, he is attacking the operation of our judicial system.
End of discussion.
Are you nuts?
Our laws, originally, being Judeo-Christian in nature, rested on the bedrock of the Ten Commandments, as well as some of what is in Leviticus. Those were/are/can be great guidelines for living well and justly.
So, you go and cherry pick an example of non-law, but a vow, to advocate that laws should not be scripturally/biblically based? Nice try, no kewpie doll for you.
The man who who makes complex what should be simple is probably a lawyer.
It's so simple to just declare yourself the winner and walk away, isn't it.
LOL...too funny.
Great post, by the way, as always.
The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.
— Thomas Jefferson, letter to Thomas Ritchie, December 25, 1820
Let me ask you a very simple question: Are SCOTUS decisions, absent a later constitutional ammendment changing them, the law of the land?
thanks ...
A law is legislation. SCOTUS can rule on legislation. A ruling is not legislating. Therein lies the rub of ‘activist’ judges, using the bench to ‘rule’ into law.
So, my simple answer is: As WRONG as it is to treat a ‘ruling’ absent legislation as law, it is done so.
And how did that question relate to your earlier misguided attempt to downplay basing law, real law, on biblical scripture?
So therefore, your conclusion is that as much as you think the SCOTUS decision on abortion is wrong (as I do and agree with you,) permitted abortion is the law of the land, it is legal, albeit wrong, and the author of this tome is wrong that it illegal.
And that position I wasnot defending. I was replying to you that basing laws on scriptural requirements is not good. God told us how to live. Mans laws fail , when will we learn the difference? It is when man declares himself the authority that you get abomination laws or SCOTUS rulings that ‘legalize’ infanticide.
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