A Logical System of Justice?

My 10th grade class, which studies the historical narrative from circa 1600 to 1865 with a focus on Western Civilization (Europe and the Americas), has been spending some time studying the history of Anglo-British law as it developed through the Middle Ages and up through the Glorious Revolution, forming much of what was called English Common Law. I’ve already discussed some of this history briefly in an earlier post.

And in the course of our learning, I teach them that the U.S. judicial system of not based on a system of reparation. (And to note, it was not entirely so in Great Britain, either, as time went on. British royalty increasingly was quite prone to assume that they were the source of law, and the highest levels of the English judicial system were originally appointed by the king and carried his mandate. And when many of the colonists rebelled in 1765-1783, many were doing so on the basis that the English authorities were abandoning their traditional principles. And if you subscribe to my email, my upcoming email begins with an example of a jury trial condemning an English Catholic to death for refusing to admit that the king was the head of the church.)

Understandably, they are surprised. Nobody has presented law in this way before, and it seems so straight-forward to them.

I’ve been teaching them about the difference between negativism and positivism. Negativism (from which are derived negative rights, as I discuss in this post) is the idea that law comes before and outside of government. The opposite is positivism, which says law comes from government … if it is legislated to be wrong (or right), then it is wrong (or right). Negativism says it is wrong to steal, regardless of what the government says. Positivism says it is wrong to steal because the government says it is wrong.

The implication? In the development of English law through the Middle Ages onward, most law, accordingly, was developed through litigation (the legal process) instead of legislation (the law-making process) as negativism was the presumption. If someone was robbed, they could be provided compensation even without a law saying that stealing was wrong. And the guilty party was forced to pay reparations.

And this is where my students can see something obvious. If negativism is the presumption, then the person wronged has to be compensated. If I steal my neighbor’s truck, then I owe him…a truck. That’s called reparation. If I sell that truck and then don’t have money for a new one, then I make reparation by working until my wages have fully compensated my neighbor.

Seems like a logical approach to justice, right? Even the judicial system of the Mosaic Law given to the Hebrews as they left Egypt was built almost entirely on reparations. The person harmed was to be repaid by the guilty party.

That’s not what we have in the United States.

In the United States legal code, the government is essentially always the party that is wronged. It is the government that receives “reparation”.

If I am guilty of extortion, the U.S. system of justice requires that I pay the government a fine and spend time in prison, based on its own assessment of the crime, rather than the extent of the harm. And that money doesn’t go to my neighbor. It goes to the government. The law doesn’t require reparation to the party harmed (who will usually only get compensated if they had the right insurance), as assumed by negativism. Rather, it  treats the government like the harmed party, based on an assumption of positivism.

And yes, there are exceptions. People can file suit for reparation of damages. Unfortunately, this is inaccessible for most people given how high legal and lawyer fees are. But why are fees so high? Because the convoluted system of laws that requires an army of lawyers and their aids to navigate through.

The U.S. legal system as it is today is based on positivism. The laws are not based on negativism, based on natural rights outside of government. If the government wants to take one person’s property and give it to another because thinks the second person would make “better” use of it, then they can. The Supreme Court said so in Kelo v. City of New London (2005).

The main question I want to be drawn from this is: where do laws come from? Do you believe in negativism, which assumes a standard of right and wrong outside of government? Or do you believe in positivism, which says the government is the standard of right and wrong? And what are the implications for the system of justice?

Something to think about.

The Reality of Collectivism

In his recent book, The Problem With Socialism, author and professor Thomas DiLorenzo directs the reader’s attention to “Rabbi Daniel Lapin, a clergyman who is also an economic writer and speaker,” who “points out that anything made by God, whether it be humans or stones (which can range from small pebbles to glittering diamonds of infinite variety) is unique; while things made by man, like bricks, can be made uniform” (page 32).

I’ll address that quote again at the end.

A few posts ago, I discussed the issue of individualism (“Individualism: Good or Bad?”). In that post, I defined individualism as the idea that each person is responsible for their own actions and the consequences of those actions.

That reality is premised on the truth that only individuals can act. Only individuals can think. Only individuals can make decisions.

Groups—or collectives— cannot act, think or make decisions. Basic logic lends itself to this understanding. (“But Lukas, what about group-think, or mob-mentality?” I’ll address that at the end of this post.)

Sometimes for convenience, sometimes with political or social agenda, we are prone to use broad sweeping terms that suggest that a collective acts. As a social studies teacher, it’s much easier to say, “the United States went to war with Japan.” Clearly, this is a misnomer. The United States is not an entity that can act. What we really mean by saying something like that is that individuals in the United States made certain decisions that resulted in the American soldiers going to war with Japanese soldiers.

Merriam-Webster offers this definition of collectivism: “emphasis on collective rather than individual action or identity.”

By no means a recent phenomenon, there are powerful societal and political movements that seek to act on behalf of some group or some collective, whether it is women, the poor, blacks, immigrants, et cetera. We call this identity politics, and it is predicated on the idea of collectivism.

Collectivism, by suggesting that groups can think, act and make decisions, readily places the group above the individual. In social terms, this means that we are happy pursuing a “collectivist” agenda at the expense of any particular individual. In economic terms, this premises the pursuit of egalitarianism, the pursuit of material equality in a society. Ayn Rand put it this way: “Collectivism means the subjugation of the individual to a group–whether to a race, class or state does not matter.”

Let me leave you with a few key points:

First, collectivism, insofar as it suggests that groups can act, think and make decisions, is a self-inherent falsehood. This is a logical fallacy. Only individuals act, think and make decisions.

And this is not to entirely abandon the idea that a sort of “mob-mentality” can have a powerful effect on members within a group. History provides an abundance of examples. Take Nazi Germany. Or the Rwandan genocide. Place large groups of individuals with lots of anger and/or passion, and those individuals in that group can begin to behave in ways that they might not otherwise have if left alone. But still, the principle of individualism is not lost because of the powerful influence of what individuals in a large group can have on each other. Human nature is quite prone to atrocities committed as groups. Still, the individual cannot submit as his scapegoat, “I am not responsible for the murder I committed because we were all caught up in the passion to kill.” A court of true justice will never let this person off the hook.

On that same note, the fallacy of collectivism means that groups are not victims of other groups. This one will not particularly sit well with some readers, but it is the logical extension of the principle of individualism and that only individuals act. I am not, by collectivist default, any more guilty of racism because I am white than my wife is the victim of sexism because she’s a woman. Likewise, it is not incumbent upon some “groups” to repay some wrong to some other “group” committed by people of their same “group” in the past. Individuals can be victims of other individuals, because only individuals act, but groups cannot be victims of groups. (And when this is the case, the guilty individuals should, obviously, be held accountable.)

Second, collectivist thinking lends itself, logically and bolstered by historic reality, to great danger. The rhetoric was common in Stalin’s Soviet Union: a few eggs are always broken in the process of making an omelet. The pursuit of some “group-agenda,” such as the biological purification pursued by the Nazis, has had incredible consequences on hundreds of thousands of individuals. Indeed, socialism itself is predicated on some form of collectivist ideology (we must violate individual rights of some for the betterment of all society), and socialist regimes killed more than 100 million people in the 20th Century*. We can track this back even further, to such turbulent and violent events as the French Revolution.

On a more benign level, even collectivist political, social and domestic agendas can end up hurting those they intend to benefit because the individual is forgotten for the group. As I will lay out in blogs to come, many policies meant to help some “group,” such as women or minorities, have negative consequences on individuals in those and other groups.

Additionally, collectivist victim hood can (and often does) lead to the violation of individuals’ rights as one “group” seeks out revenge or compensation from some other “group,” regardless of whether or not individuals being held to blame had any part in real or alleged abuses. An example of this is the demand that the wealthy (the collective), because they must inherently be greedy, therefore are required to account for their alleged “greed” through higher taxes, et cetera. Another purely hypothetical example would be if modern-day Irish-Americans demanded that white Americans pay recompense for the ill-treatment of the 19th Century Irish immigrants. (And please keep in mind that my principles hold in reverse: collectivist thinking was just as damaging to the Irish immigrants of the early 1800s, or to the Africans of the early American slave trade. These examples only bolster my point.)

Third and finally, I will refer back to the quote at the beginning. All that which is made by God is unique. Individuals are unique. Individuals have varying backgrounds, personalities, talents, abilities, et cetera. The collectivist, to some extent or another, abandons this truth in their thinking and either treats all in a group as identified first by their group identity, or pursues some egalitarian end in an attempt to make all the individuals in a group as “bricks.”

Rather, this blog’s author would passionately advocate that we recognize that only the individual acts, thinks and makes decisions. And we ought to couple this with the understanding that each individual is unique. I do not care to distinguish a person based on some collectivist identity first and foremost, but rather much prefer to see each individual as an individual, unique to every other. To treat the individual as primarily “one in a more important collective” is a gross dishonor. All men and women should be treated as unique individuals with dignity, respect and honor.

*DiLorenzo, Thomas. The Problem With Socialism. Copyright 2016. 

Individualism: Good or Bad?

If you subscribe to my email (which you should!), back in a November email, I narrated the attack of a Facebook troll who trotted down an ad hominem line of attack aligned against many the supporters of a free society. In essence, it is this: “You are all just rugged individualists with greedy appetites to take from others, void of compassion or care.”

My readers already know that is false for this blog’s author, but it’s not just false for me. Many people who call themselves libertarians are regularly attacked by the same argument. So I wanted to just bring a few points of clarity to the issue of individualism.

First of all, let’s just review the basic definition of libertarianism. Libertarianism is a political philosophy (and nothing more) that advocates for as minimal a government as possible, based on (or resulting from) the ideas of property rights and the non-aggression principle (I wrote on both these at the posts each are linked to). It doesn’t, in and of itself, subscribe to any religious position (it’s not a religious principle) or moral positions related to what is good or bad to do beyond those two basic foundations. Despite what the activists may communicate, libertarianism is simply a political philosophy. (Previous blog dealing with this: “Libertarianism v. Authoritarianism”)

Back to the idea of individualism. This idea is also foundational in the libertarian political philosophy, but not in the way that it is often used in attack. Individualism merely means that each person is responsible for their own actions, and the consequences of those actions.

Most people’s reaction: “well, duh.” But then look around you at the world we live in. Look at the students who are coming out of college straddled by tens of thousands of dollars of debt. The movement for government cleansing of all student debt is growing. “I shouldn’t have to pay all this off,” they say.

In this example, there is the counter-argument to be made that government has made the credit for college cheap and consequently, through the logical incentive processes, flooded the market with more and more people with college degrees, thereby diminishing the value of those degrees and driving up the price of college. (This is entirely true.) Doesn’t the government hold some responsibility, as well? Oh, most certainly, and part of the purpose of this blog is to clarify the nature of just this sort of thing.

But that does not eliminate the responsibility of the individual who took out the loans. There was not a gun placed at his or her head.

This is but one example. Without exhausting your attention, I’ll leave your imagination (or, more likely, your observational experience) to more. Individuals are responsible for their own choices and the consequences of those choices. Individualism is, then, put another way, personal responsibility.

An elementary concept that seems to be rapidly vanishing amidst my own generation.

What does individualism, in this sense, encourage? It encourages thrift. It encourages work ethic. It encourages forethought, planning, and seeking good and varied council, and follow through. It encourages taking responsibility for your own choices and actions.

So, what is usually meant by individualism when used in attack? Just the way it was used against me. Selfish. Self-centered. Greedy. Uncaring. Lack of compassion.

But that’s not what individualism is for the advocates of liberty. That is an entirely different sort of ideology than personal responsibility. Individual does not preclude working together, collaboration, mutual support, community, relationship, generosity, or any other similar ideas! In fact, I would argue emphatically, it encourages them.

(In a very real spiritual sense, I believe that Christians have a spiritual obligation to volunteer their resources, time, talents and influence in ways to help others. That is not a libertarian or non-libertarian position. Libertarianism, again, is a political philosophy that does not deal with that, at all, except to say that the government cannot use threat of force to take from some against their will and give it to others.)

Individualism (personal responsibility) and compassion (voluntary generosity) are the best and most powerful of companions. The strongest of societies are built on both.

On a somewhat related note, many people are very much unaware of what it means to be conservative, liberal or libertarian. I have been taking a class on this over at Liberty Classroom, and will be relaying the history of these ideologies and what they mean over the coming months. I hope you’ll be watching for them! And again, please subscribe to my email. I don’t send out many, but when I do, you’ll enjoy them!