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).

Roman Rota poem (untitled)

I began writing this on 9 September 2011, took a long break, and finished it on 2 February 2015. It is a poeticization of the articles from the Apostolic Constitution Pastor Bonus that govern the Tribunal of the Roman Rota (as amended to 2011). This is my second attempt at a Roman Rota poem. The first was attempted in iambic pentameter; this one is more free form with rhyme. I hope that this is amusing, if not illuminating!

Link to the relevant canonic law: http://w2.vatican.va/content/john-paul-ii/en/apost_constitutions/documents/hf_jp-ii_apc_19880628_pastor-bonus-roman-curia.html#TRIBUNALS (Art. 126 et seq.)

 

The Roman Rota is a court
   of higher instance at the fork
of every road that leads to Rome
   or to Saint Peter’s and its dome.

It hears appeals and safeguards rights.
   It helps the courts of lower heights
by virtue of its sentences.
   It fosters law consensuses.

Judges of this Rotal court
   form a college of the sort
over which presides a Dean
   chosen by the Pope Supreme

for established term of office.
   From among juristic pop’lace
Appointees of the pope are priests
   Proved in doctrine, expertise.

In second instance, the Rota deals

   with cases brought it by appeals

from the lower courts which were

   wholly unwilling to confer

a judgement which would appease

   both parties own selfish needs.

The court adjudicates in first instance

   contentious bishops, unless there’s inference

that the bishop represents

   a legal person with intents

to settle a question of earthly goods

   or rights and duties, misunderstood.

The Rota hears the cases of

   abbots primate and those above

monastic orders, and moderators supreme

   of religious institutes of papal regime. [1]

Its j’risdiction extends also[2]

   To the persons subject to no

Boss below the pontifex,

   These in real and fiction sense;

To these, further cases which

   Sovereign Pontiff deigns commit.

All the types of cases mentioned,

   In the second and extended

Instances are processed by

   Roman Rota, Rotal Eye.

This oldest court of Western law

   Is governed by its own,

A law of special application,

   Made by Pope of Rome.

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[1] I realize a pontifical institute of papal regime is not the same as pontifical institute of papal right. "Esteem" changed to "regime" 23 February 2019, 3:55pm.

[2] Conjoined 5-26-2015, 11:50pm

DEFENSE OF THE SOVEREIGN PERSONALITY OF THE HOLY SEE

This juridico-philosophical argument is a response to the juridical argument against the sovereignty of the Holy See and for its status as an “instrumentality” of the State of Vatican City, both objectively and specifically for the purpose of civil suits in American courts against the Holy See in matters of clerical sexual abuse.

1.     The State of Vatican City (SCV) was created by a bilateral treaty (Lateran Pacts) between the Kingdom of Italy and the Holy See, both acting as sovereign entities. Therefore, the Holy See is juridically prior to the SCV as a sovereign entity with concurrent sovereign personality equivalent to states under international law and by that fact constitutes it as a sui generis sovereign state.

2.     Therefore the Holy See cannot be an instrumentality of the SCV, since an instrument which is created by a given entity cannot be temporally prior to such entity, for the created cannot have existed before the creator.

3.     But the Holy See existed before the creation of the SCV and existed independent of it until 1929.

4.     Therefore the SCV was created as an instrumentality of the Holy See, in order to protect the sovereign personality of the Holy See, in absolute independence of the Pope, and the salvific mission of the Catholic Church against temporal sovereigns.

5.     Therefore suits against the Holy See as instrumentality of the SCV are absurd and should not be allowed.

6.     It also follows that the Holy See is the only sovereign personality of “The Vatican” entity, and the SCV is an instrumentality to ensure the temporal sovereignty of the Holy See (historical evidence of this being the “States of the Church” themselves were created in the 700s as a protection for the Church and the Papacy against temporal sovereigns; this has always been the function of the terratoriality of the Holy See and was the reason why the Roman Question had to be resolved with a grant of sovereign terratoriality).

 

Written 16 August 2013, 7:24 am.

This argument is written in response to the argument set forth by James Fantau in Rethinking the Soverign Status of the Holy See: Towards a Greater Equality of States and Greater Protection of Citizens in United States Courts, 19 Card. J. Int'l & Comp. L. 487 (2011).

Accessed in 2013 @ http://www.cjicl.com/uploads/2/9/5/9/2959791/cjicl_19.2_fantau_note.pdf