Canonists Need Not Reinvent the Rota

In our current climate of crisis and reform, there is an understandably overriding tendency to jettison all historical solutions in search of a novel remedy. But many of these problems have been encountered, addressed, and remedied in the history of canon law, the oldest legal system in the Western world. In formulating juridical responses to the present crisis, canonists do well to reacquaint themselves with what our canonist forbears proposed as ultimately successful solutions to recurring problems in the hospital for sinners.

“During the course of the centuries the Catholic Church has been accustomed to reform and renew the laws of canonical discipline so that in constant fidelity to its divine founder, they may be better adapted to the saving mission entrusted to it.”  

- Pope John Paul II, Apostolic constitution Sacrae disciplinae leges, January 25, 1983.

In his apostolic constitution Sacrae disciplinae leges, St. John Paul II, who promulgated a total reform of the entire canonical legal system of East and West, restated a fundamental principle of canon law. Ecclesiastical laws, insofar as they do not directly positivize Divine Law, natural or positive, are binding for a time and place; they are not immutable, nor are they the final word. The law, like the Church herself, is a living, breathing complex of norms and traditions which cannot be expected to remain unchanged for all time; as a living instrument of a living Church, canon law cannot be content to extinguish its relevance for the Church’s life by relegating itself to the status of a dead letter. The Holy Spirit, the Spirit who breaths Divine Life into the Bride of Christ, must become the Spirit of the law, and the Church must allow for the promptings of the Spirit to continually direct her legal development.

While the unquestioned pursuit of “progress” would be an ideological intrusion detrimental to the theological self-understanding of ecclesiastical law, neither can the competent authorities remain complacent with the law as it is, in slavish deference to the way things have been. Creative execution of the law constitutes the ordinary means whereby the universal and abstract legal tradition becomes concretized in the particulars of time and place, but when it happens that the historical, political, or cultural circumstances in which the Church ministers have undergone drastic change, or when the Church finds herself in new lands ministering to diverse peoples with unique traditions, the Church, in obedience to her Divine Founder’s great commission to go and make disciples of all the nations,[1] must adapt her means of salvific ministry to the needs of particular times and peoples. Divine Revelation and Sacred Tradition remain forever unchanged, but the disciplinary regime whereby the conditions for making God’s love manifest must be continually refined and adapted, if law is to be the “condition of love.”[2]

Again and again we see the Church reforming her laws, either through the work of private canonists and local bishops and synods, or through the universally binding acts of pontiffs, ecumenical councils, and codification commissions. Gratian and the canonists and popes of the Gregorian Reform, the Council of Trent, and Pietro Cardinal Gasparri are central figures and events in the history of what we now know as canon law. St. John Paul II, likewise, the author of the statement we’re meditating upon, might even belong on this list, as he brought to completion the total reform of the Church’s law. Some contemporary canonical commentators mention in their doctrinal writings ideas for a future reform of canon law, noting certain lacunæ or inconsistencies in the law and proposing solutions. The 1917 Code was in effect for about 65 years. The 1983 Code has been in effect for just over 35 years. I don’t mean to suggest that we’re due for another comprehensive overhaul, but it is important to keep in mind the ultimately tentative, yet binding, nature of the merely ecclesiastical jus vigens.

The canonical legal tradition is in some sense outside of time, an unchanging and constant backdrop to which the jus vigens is connected and through which it is properly understood (1983 CIC c. 6 §2). The tradition is a continual source of inspiration, for as much as laws change, people do not, and most issues, administrative or penal, which presently arise have arisen previously. Many legal mechanisms for solving common problems have already been thought of and attempted, with some experiments having achieved desired results, only to be discarded in later periods though accident of history. Some of these mechanisms may well be revived to the benefit of the People of God. In the Church’s continual need for legal adjustment and reform, canonists do well to recall what our ancestors in the Church’s legal tradition attempted, so that our solutions to the here and now will be rooted thereby in a sort of professional communion with all canonists made one through baptismal incorporation into the Body of Christ. The Church’s law cannot become stagnant, but neither are contemporary canonists compelled to reinvent the rota.

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The Roman Rota is the highest ordinary appellate tribunal in the canonical legal system, deriving its name from a "wheel" around which it judged causes in time immemorial.

[1] Matthew 28:19

[2] Benedict XVI, “Letter of His Holiness Benedict XVI to Seminarians (18 October 2010)”, Vatican.va, accessed December 12, 2018. http://w2.vatican.va/content/benedict-xvi/en/letters/2010/documents/hf_ben-xvi_let_20101018_seminaristi.html

(Body of the post originally an essay for canon law school, submitted 12/12/2018).

Natural Law qua Constitutive Law of the Human Personal Perpetual Entity

In canonical legal theory, a “constitutive law” is a law which specifies the essential elements of a juridic act or canonical institute. Constitutive laws are per se indispensable, because they pertain to the nature of the regulated act or entity as such.

If such a concept where applied to Natural Law theory, we could say that natural law is a constitutive law of human nature, for it pertains to the nature of man qua man. Natural law is therefore per se indispensable, for a dispensation from natural law would contradict the nature of the human person, who is the personal entity regulated by natural law.

 

There is also the canonical legal concept that juridic persons (akin to corporate entities in American law) are perpetual, unless legally extinguished, a decidedly difficult procedure. This, of course, resembles the physical persons (human beings), who are perpetual as legal subjects, until death, and who are by nature perpetual due to their immortal souls and the dogma of bodily resurrection. So it is not a difficult analogical prediction to call physical persons “perpetual” as well.

 

But it has already been shown that natural law is a constitutive law of the human person, and the human person is a perpetual personal entity. Wherefore natural law is per se unabrogable, for abrogation of a constitutive law of a perpetual personal entity would thereby extinguish such person, which is contrary to the nature of such person as a perpetual entity.

It’s often said that natural law is indispensable and unabrogable. Analogically predicating canonical concepts of natural law subject matter sheds some light on the reasonableness of such tenets.

The Night Before Shutdown

The Night Before Shutdown

‘Twas the night before Shutdown

When all through the Hill

Not a C.R. was passing,
Not even a bill.

"The Wall must be funded!
Keep cartels at bay!"
"It's racist!" yelled others;
"Make Mexico pay!"[i]

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[i] Verse added 21 December 2018.

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"The Wall must be funded!
Keep cartels at bay!"
"It's racist!" yelled others;
"Make Mexico pay!"

\\

 

With Old Guard, Hawks, Liberals,

And Tea Partisans,

Plus Party disjuncture,

No one had a plan.

“The Shutdown of Schumer”

“Trump’s fault!” pundits preached;

Fake News not the culprit,
No compromise reached.

The senators squabbled,

Exchanging much blame,

Each party was hoping

To p’litically gain.

Meanwhile the People,

Sound sleeping in bed,

Had visions of backpay

And furloughs instead.

Congressional leadership

From every angle,

Self-righteously shouted

With platforms entangled:

“Now! DACA, now! MAGA,

Now! Defense and Healthcare,

On! Airports, on! Highways

On! Bridges to Nowhere!”

 

With partisan gridlock

No funding was passed;

This government shutdown

Sure won’t be the last.

_______________________
20 January 2018, 4-5am; 6-7pm

Of Retrograde Analogy and Conflicts of Logic

As a matter of constitutional law and federal statute, President Donald J. Trump has no conflicts of interest. This is not a statement of partisan sentiment. It is a statement of prima facie legal fact.

The concept of “conflict of interest” is not a category inherent in the nature of things; like the categories “personal property”, “real property”, and “fixed property” as legal categories of property created by law and applied to things in accordance with the legally defined meanings of such terms, the category “conflict of interest” is a legal category created by statue and subject to the definitional scope and limitations specified in such statutory text.

Like legal categories such as “contract” (think of the “Social Contract” theory advanced by Enlightenment legal philosophers) and dicta such as “clear and present danger” which have obtained usage far beyond their strict and original meaning, the original term and its context have given way to analogical predications of such terminology. This is all well and good, as both univocal and analogical prediction are natural operations of human language.

A problem arises, however, when a term commonly predicated analogically and thereby extended beyond its strict and original meaning is then predicated univocally of a subject capable of being predicated of univocally under the original meaning of the term wherefrom the analogical predication arose. Such abuse of logic, language, and law I have termed Retrograde Analogy.

Retrograde Analogy

When a conceptual category is abstracted from phenomena­—or, in the case at hand, defined by statute—and is assigned a term (e.g. “conflict of interest”), such assigned term is univocally predicable of the phenomena from which such conceptual category is abstracted. If the assigned term is applied to a similar yet distinct conceptual category, the term is predicated analogically of the differentiated conceptual category.

At this point in the logical flow of language, the term as originally used has undergone a slight modification in meaning; while the new meaning of the term is not wholly unrelated, neither is it wholly identifiable therewith. Wherefore Aquinas calls such analogia (for a philosophical treatment of the logic of analogy, see The Logic of Mystery in the Concept of Analogy). Insofar as the original term has taken upon itself an analogical meaning, however, a new term has been created which is thereby non-predicable—at least univocally—of the original phenomena encompassed by the original conceptual category abstracted from the latter.

Insofar as the analogical term is predicable of phenomena categorically distinguished from phenomena univocally so predicated of, such analogical term has become a true term with all the linguistic and logical properties inherent therein. A distinct conceptual category has been created from the abstraction of the distinguished phenomena, and the analogical term qua term will naturally evolve (i.e. ‘morph’) into yet further terms predicable of phenomena distinguishable from the phenomena encompassed by the analogical predication of the original term.

In this process, a new analogical term is created from the analogical predication of the original analogical term qua term; this is the process of linguistic conceptual development, the means whereby money was analogically predicated of Monopoly money, which in due course became analogically predicable of worthless compensation generally, and which may become analogically predicable of a fourth as yet uncreated conceptual category of phenomena. The linear progression of linguistic development constitutes a 1-way street as it were (to analogically predicate of the term univocally predicable of a category of municipal infrastructure [let the record reflect that the term retrograde analogy is itself an analogical predication of the term “retrograde”, which is itself univocally predicable of moving geometrical objects, not conceptual categories of law or logic]).

The forward movement of language is as natural a property of verbal communication as verbal communication itself is of human nature. The perversion of speech consists in the systematic attempt to overrule the linearly forward-moving property of linguistic development by the intentional introduction to the phenomena encompassed by a preceding conceptual category the analogically predicable term derived therefrom—retrograde analogical predication that contravenes the very nature of language. To univocally predicate a term of analogically related phenomena constitutes a high crime and misdemeanor against the very concept of language; if Retrograde Analogy escapes conviction in the Court of Public Discourse, such acquittal shall constitute the death of the linguistic rule of law and the birth of predicational mob rule.

 

Conflicts of Logic

To cite the venerable authority Black’s Law Dictionary—regularly cited by Federal Courts as quasi-prima facie evidence of the authentic meaning of legal terms—a “conflict of interest” is a  

[t]erm used in connection with public officials and fiduciaries and their relationship to matters of private interest or gain to them. Ethical problems connected therewith are covered by statues in most jurisdictions and by federal statutes on the federal level. Generally, when used to suggest disqualification of a public official from performing his sworn duty, [the] term “conflict of interest” refers to a clash between public interest and the private pecuniary interest of the individual concerned.[1]

Trump is alleged to have business holdings that constitute a conflict of interest with his current constitutional office of President of the United States, an office created by the U.S. Constitution in Article II, Section I, in contradistinction to an office created under the U.S. Constitution’s grant of legal authority, such as the office of the Secretary of State, an office created under the revised constitution by Act of Congress on July 27, 1789 as the “Secretary of the Department of Foreign Affairs”[2] and whose occupant is “appointed in consequence of this act”[3]. The distinction is crucial for the matter at hand.

Qualifications (or disqualifications) cannot be imposed by statute upon offices created by the Constitution, since the statues themselves are created by means of legislative power derived from Article I, and since a lower law cannot contradict a higher, it would be logically improper for a statute (a lower law) to contradict the Constitution (a higher law) by imposing further qualifications not decreed by the Constitution itself. By contrast, offices created under the constitution are subject to the statutory imposition of whatever qualifications the Congress deems appropriate—insofar as these do not themselves contravene the Constitution itself—for both office and statute are on juridically equal constitutional footing qua creatures of the Constitution. An office created by the Constitution, however, is not a creature of the Constitution, but constitutes a constituent part of the Constitution itself. Consequently, the imposition of further qualifications for the office holder to validly hold his office can be accomplished solely through the procedure of constitutional amendment defined in Article V.

Since such an allegation is necessarily understood as an allegation of fact in violation of statutory law, it is improper to impose any non-legal predication—analogical or otherwise—upon such term in the legal context of such allegation, and the legal meaning of the term “conflict of interest” by right ought to be predicated thereof. But Trump’s alleged conflicts of interest are non-existent by the body of statutory law under which such term obtains legal meaning and injunctive force. Wherefore Trump’s alleged conflicts of interest are non-existent insofar as the term “conflict of interest” is understood as a univocally predicable term of juridical art.

Legal terms acquire legal meaning solely through the legislative-constitutional context under which such terms originally acquired substantive content. In the case before us, the original legal meaning is patently inapplicable. Wherefore I declare that Trump has no conflicts of interest under the American system of federal constitutional law. Rather, his legion of legally illiterate detractors have manifested a conflict of logic neither present in the law of the land nor in the nature of things; in the absence of legal fact they have created a legal fiction in blatant contravention of constitutional law and linguistic logic: Retrograde Analogy.

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Original idea Feb 6, 2017, 9:55am

Blogpost started Feb 14, 2017, 8:15pm.

Continued Jul 9, 2017, 9:15pm.

 

[1] Black’s Law Dictionary, 5^th Edition, pg. 271

[2] United States Statutes at Large, Vol. I (Boston: Charles C. Little and James Brown, 1845), An Act for establishing an Executive Department, to be denominated the Department of Foreign Affairs (approved July 27, 1789), Section 1

[3] Ibid., Section 4

Definition of Law: "the will of the legislator solemnly expressed"

This is the very first fragment and primeval draft of what would evolve over the following two years into my bachelor’s thesis. It was composed on 25 March 2013, just hours after I had submitted my associate’s degree essay, and was originally entitled De Lege Regulaque.[1] The definition of law as argued for—the will of the legislator solemnly expressed—was inspired by Art. 2 of the Louisiana Civil Code: “Legislation is a solemn expression of legislative will.”

 

I. Whether Law Derives from the Will?

Law derives from the will, for it is “made by him who has care of the community”.[2] The act of making anything derives from the will of the maker, for without the choice to make, the made thing would not have been made. Law is a made thing. Therefore it is made by a maker, and would not have been made had the maker not made a choice to make the law. Therefore law derives from the will.

II. Whether Law is the Will of the Legislator?

Law can be nothing other than the will of the one entrusted with the power of making the law, for if it were the will of someone other than he who has the authority to make law, then it would not be a law at all, but a reasonable directive without he morally-binding force of law. Therefore law is the will of him who has been granted the power to make law, commonly referred to as Legislator.

It should be noted that “will” in this context does not denote a faculty of the soul, but the intention of the legislator.

III. Whether the Will of the Legislator is always Just?

Objection—It would seem that the will of the legislator is not always just, for many legislators issue unjust ordinances. Therefore, if law is the will of the legislator, then laws may be just or unjust according to the particular will of the legislator. But unjust laws are not laws at all. Therefore law cannot be thought of as the will of the legislator, for such definition confers upon unjust ordinances the character of law.

Response—The will of the legislator is only the will of the legislator qua legislator insofar as it accords with right reason and the common good. It contradicts right reason to command obedience without promulgation of the command. Therefore the will of the legislator qua legislator demands promulgation as well. The legislator ceases to be a legislator insofar as his will qua legislator goes against the necessary conditions for a just law as enumerated above. Therefore the will of the legislator is not infinite, but is limited by objective morality and right reason. Thus the definition of law qua “will of the legislator” does not lead toward an authoritarian view of law in which the law has the legal character simply because it is the will of the legislator. Therefore the legal character can never be conferred upon law, and law may be defined, at least in part, as the will of the legislator.

IV. Whether Law is Solemnly Expressed?

Law is nothing other than a solemn expression, for if it were a casual expression, it would not be in accordance with the majesty of law and the elevated nature proper to law. Furthermore, if it were not a solemn expression, it would not be properly promulgated to all those upon whom it enjoins, and thus would lack the character of law, since that which has not been communicated cannot be expected to obeyed, and law by its nature has the property of commanding obedience.

V. Whether Custom is Solemnly Expressed?

Solemn expression includes custom, for the people upon which a custom binds and from which such custom derives, through its collective will and common acceptance of a practice, solemnly expresses its will by the common acceptance itself.

VI. Definition of Law

Therefore law is nothing other than the will of the legislator solemnly expressed.

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[1] A title I later abandoned because I realised that the Latin usage of regula was incorrect.

[2] Thomas Aquinas, Summa Theologiæ Ia-IIæ q.90 a.4

Whether Law is an Act of Love?

I recently rediscovered a fragment from what appears to be an extension of the earliest draft of my thesis (c. 8 May 2013-25 December 2013, or 29 March 2014, 11:30 PM [the various word document drafts are unclear regarding the date of composition]), a fragment which did not end up evolving into the final argument, but a concept with which I still firmly agree. That first thesis draft was written in the style of a Thomistic quæstio since it was on Aquinas' Treatise on Law; hence the "Whether...?", "It would seem that...", "Objection", "I say that—", and "Reply".

 

Whether Law is an Act of Love?

 

It would seem that law is not an act of love—

 

Objection. Law issues certain restraints and requirements, and love does not restrain or require anything. Therefore law cannot be an act of love.

 

I say that—

 

Love is an act of willing the good of the beloved. The good of the beloved is often achieved by forbidding morally-illicit actions or by requiring morally-good or morally-permitted actions. Therefore forbidding or requiring can be aimed at the good of the beloved. But love is nothing other than willing, or aiming at, the good of the beloved. Therefore the acts of forbidding or requiring, which both belong properly to law, can be acts of love. All just laws are aimed at the good of the beloved, for the beloved of the legislator is the community of persons over which he has been appointed governor. Therefore every law is an act of love, for law is nothing other than the legislator willing the good of his beloved, the community for which he legislates.

 

Reply. This [is] a faulty conception of love. Although this may have been true before the fall of man, in a postlapsarian world it is often necessary for love to require or forbid, for the ability to stray is ever present in a fallen world. Therefore, etc.

Promulgation, "ignorantia juris non excusat", & Conformity to Reality

I’ve been thinking about the requirements for “just law” recently. One, of course, is promulgation, since without promulgation the spirit of the law­­­­—the intention of the legislator, the truest law—cannot be known to those upon whom it enjoins.[1] But what exactly renders “promulgation” valid, effective, just, etc.? This requires a further level of philosophical investigation, one which I will now endeavor upon at least preliminarily.

 

It seems that “just law” must conform to reality. Ignoring the epistemological problems inherent in this thesis, and dismissing for the present a host of post-Scholastic objections that could be raised against the tenability of “reality” serving as a valid criterion for the law, let us accept this thesis, not so much qua thesis, but for now at least, qua premise of the unfolding argument. “Just law” must conform to reality.

 

This necessitates that any criterion for the law must also conform to reality. Therefore, as we sketched briefly above, promulgation—a necessary prerequisite for “just law”—must conform to reality.

 

Now it occurs to me that most of our laws in the United States, if not those in every self-respecting sovereign nation-state, do not conform to reality in this respect. In the United States, the dictum “ignorance of the law is no excuse” {ignorantia juris non excusat}[2] is often cited as dogmatic tenet of due process, and therefore of public justice. But can this principle of trial law serve as anything more than a legal fiction for the convenience of our courts? Does this principle actually conform to reality? In other words, is ignorance of the law a valid excuse?

 

I should say it is. In a simpler time before the advent of the omni-competent regulative superstructure of the Sovereign State, it was almost possible for the educated person to know all the laws. In the customary legal systems of the classical world, one learned the law by living in society; legally-binding customs (a notion foreign to individualistic Americans) were passed down naturally and socially, thereby precluding the invocation of “ignorance” as a valid excuse.[3] Later, the codifications of the continental civil law made the law accessible to the upper classes at least, and their size and scope were somewhat restricted. In England, too, the principles of common law were able to be mastered by the intelligent barrister, anyway, and so in both legal systems it was a reasonably doable dictum, that “ignorance of the law is no excuse”. But this changed within the ever-expanding competencies and legal framework of the Sovereign State in the face of the ever-increasing complexities of the modern age.

 

I will take as an example illustrative of my argument and applicable to many other jurisdictions the situation of Federal criminal law in the United States. The United States Code (U.S.C.) is at the time of writing 52 titles, with most if not all of those spanning multiple volumes and with more titles planned. The United States Statutes-at-Large—the legally admissible evidence of law,[4] used to challenge the non-positive[5] U.S.C., which is merely  prima facie evidence of the law in effect[6]—is larger still, in publication since the infancy of the Republic and sometimes including provisions that the Office of the Law Revision Counsel has elected to leave out of the U.S.C., adding further complication in spreading knowledge of the law. The United States Department of Justice, among others, has attempted to accurately calculate the number of crimes contained throughout the U.S.C and has not even been able to render an accurate count[7] (Title 18, Crimes and Criminal Procedure, is not the only place where crimes are stipulated). If the governmental instrument of legal enforcement is not able to even provide an accurate count of total federal crimes—let alone draw up a comprehensive list by subject matter of all crimes currently ‘in force’—then how, might I ask, does it conform to reality to decree that “ignorance of the law is no excuse” in a criminal proceeding when the very agency tasked with prosecution is unaware of the total number and therefore scope of criminalized subject matter? Quite simply, there are currently too many Federal crimes for the average citizen, the citizen who is procedurally precluded from invoking ignorance of the law as an extenuating factor.

 

“Ignorance of the law is no excuse”, it might be objected, is mandated by the necessities of criminal law, for otherwise every defendant would invoke the opposite of such principle and be thereby acquitted. This is a valid objection, and I concur that many shrewd defenses could be constructed thereby. But this objection does not address whether a fundamental principle of law, that law must conform to reality, is honored by the existence of this principle. I offer a supplementary principle—Prosecutorial convenience is no excuse for the contravention of reality. The culture of “having it on the books” so that when-and-if there is ever use for an obscure criminal provision, it exists for the prosecutor’s convenience and discretion (if the Justice Department is even cognizant of its existence in the first place) contravenes the real state of legal knowledge of almost all criminal defendants, and through no fault of their own, since the Justice Department does not even know of all crimes. Simply “having it on the books” does not fulfill the goal of promulgation, that the law be made known publicly. This practice produces today's climate of legal knowledge and erects the rule of law as an esoteric instrument of total power thinly veiled.

 

The solution to this crisis is the repeal of many criminal laws, not the evermore resounding parroting of the obsolete principle “ignorance of the law is no excuse”. In the last analysis, when the leviathan of the modern legal complex is judged against the reality of the average subject upon whom such law is claimed to enjoin, the principle “ignorance of the law is no excuse” falls flat as a contravention of reality and therefore of justice. The principle may stand in the context of a manageable legal corpus, but advocating the feasibility of such a sizable reduction on the part of the Sovereign State is an equally extravagant contravention of reality. A just legal framework must respect both the legitimate complexities of the modern order and the non-virtuosic abilities of the average citizen. Wherefore “ignorance of the law” is an excuse; 21st century legal philosophers must craft an alternative theory that respects contemporary legal reality, thereby rendering the law in conformity with reality and reinstating its full morally-binding character as “just law”.

 

 

REVISED 17 SEPTEMBER 2015 (Constitution Day and Citizenship Day, cf. 36 U.S.C. 106), 11:50PM PDT

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[1] M. Girard, The Morally-Binding Nature of Law: Letter v. Spirit.

[2] Black’s Law Dictionary, 5^th Edition, pg. 672.

[3] Wikipedia contributors, "Ignorantia juris non excusat", Wikipedia, The Free Encyclopedia,https://en.wikipedia.org/w/index.php?title=Ignorantia_juris_non_excusat&oldid=680621004, accessed 12 September 2015. 

[4] 1 U.S.C. 112.

[5] Cf. Office of the Law Revision Counsel, “Positive Law Codification”, http://uscode.house.gov/codification/legislation.shtml.

[6] 1 U.S.C. 204(a)

[7] Gary Fields & John r. Emshwiller, “Many Failed Efforts to Count Nation’s Federal Criminal Laws”, The Wall Street Journal, July 23, 2011, http://www.wsj.com/articles/SB10001424052702304319804576389601079728920, accessed 8 September 2015.

The Draft, Justice, and the Involuntary Deprivation of Constitutional Rights

The draft (especially the sex-selective draft) should be ruled unconstitutional. Reading the previous sentence, you’re probably thinking that I’m a gung-ho sexist draft dodger from the Vietnam era. Well, I’m not. Actually, I registered with the Selective Service on my 18th birthday as required by law, and the Vietnam era was before my time. It is not the draft per se that I have a problem with. It is the draft under the current legal framework.

Joining the military requires the forfeiture of certain rights and freedoms as guaranteed by the Bill of Rights. This is required due to the necessities of a quasi-separate military society, a fully justified requirement when demanded of the freely enlisted. But when ordinary American males are required under penalty of law to enlist in the military and thereby required under penalty of law to forfeit their guaranteed rights under the Constitution, an injustice—both legal and moral—is done to American males.

I do not here advocate the abolition of the draft, but rather the protection of involuntary draftees' constitutional rights under military law. Ordinary civilian rights and freedoms should be enshrined in the Uniform Code of Military Justice (UCMJ) for those soldiers who were involuntarily enlisted. Voluntarily enlisted soldiers, who thereby voluntarily temporarily forfeited certain constitutional rights and freedoms, would not need to be subject to such UCMJ protections in justice.

It may be objected that creating two fundamentally different gradations of military justice would cause a myriad of problems for the command structure as well as for the Judge Advocate General Corps (JAG) of the respective branches. It very likely would. But the alternative is not to involuntarily deprive ordinary American males of their constitutional rights and freedoms. Even felons receive due process of law when they are deprived of certain constitutional rights and freedoms, and they have irreparably wounded society! The ordinary American male deserves justice. The UCMJ must incorporate the protections of the Bill of Rights, or the draft must be permanently abolished. There is no alternative in justice or law.

Contract as Particular Law

A valid contract even has the status of a particular law among the contractors.[1] The contractors form a community ordered to a common end, the well-being and benefit of all involved in the contract. The members of the contractual community give their unanimous consent to the contract, and it thus has the legal character. For it is the will of the legislator, in this case the entire contractual community, solemnly expressed by means of the contractors formulation of the contract, it aims at the good of the entire contractual community over which it enjoins, and it is in accord with justice and reason insofar as it is a valid contract, for validity requires that it be in accordance with divine and natural law ad normam CLIF 12 §204, and if a statute does not violate these, it must needs be just. Therefore, since the contractors form a community, the whole people of such community has the right to make law for themselves, and this legislative right is properly exercised by means of contract, which thereby has the status of a particular law among the contractors.

(written circa April 2013)

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[1] Post inspired by Lon L. Fuller, Anatomy of the Law

Cf. CLIF 12 §2

A Common Misstep of the Common Law

A judge is a servant of the law and not its master. The role of a judge is to apply the law in particular cases; the role of the Legislator is to create law for universal governance. The letter of the law is an expression of the spirit of the law, which is the intention of the Legislator. Thusly, although law is a composite of letter and spirit, the law is truly found in the spirit, which is known most directly by the Legislator. Therefore the authentic interpretation of the law is reserved to the Legislator, who knows to the fullest extent the spirit of the law, the most essential element of law of which the letter of the law is an expression (cf. CLIF 52 §101.2).