« still a toothless bear ... | Main | natural law in american jurisprudence ... it lives in the second amendment!!! ... »

September 18, 2008

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

Grammar Nazi

tenant -> tenet

john jay

grammar nazi:

after having been caught, i will not now profess to know the difference between the wrong word correctly spelled and the correct word. laughing.

you'll just have to trust me.

thank you very much for reading the post, and thank you very much for your comment.

john jay

marinetbryant

jj, it's hard being a lay person whose interests fall outside one's education, training and/or mental capacity, but here goes.

I have the Constitution and Declaration of Independence bookmarked. I read it often. It seems that one of the duties of government is to not only protect us from the government but from enemies both foreign and domestic. By failing to do so makes the "contract" null and void. Yes, no?

Who is the arbiter of this contract? Who decides the enemies, foreign and domestic? The courts?

I believe the Declaration is a preamble to the Constitution. The Declaration states that when the government fails in its duties then we the people have a right, a duty to change that government. Trouble is, it doesn't say how. The only precedent was the Revolution, which some of the Founding Fathers saw as a remedy not just once but as a stick to hold over the government.

Now we run into the treason-sedition clause. The government's stick is bigger than the peoples!

It's our right to change the government but in so doing we are in violation of the law. My head is spinning looking for an answer!

If groups of people band together they become targets of the government and unfortunately are out-manned and out-gunned. They need these gatherings to share ideas and hopefully a leader will emerge all the while looking over their shoulder for the government to come crashing down on them.

I think there is an under-current of frustration with a lot of Americans, but they don't want to upset their lives or lose their conveniences and are frankly afraid to do anything. Plus there is no one for them to rally behind.

The only other option is the military whose specific duty is to protect us from those enemies. The General Officers Corps(Pentagon) have become as corrupted, lazy and happy with the status quo as their civilian masters, the politicians. Fortunately, except for the human cost, the War on Terror has yielded some fine field officers who are advancing through the ranks. Will they be ready to take action, to take control and then relinquish it at the proper time? One can only hope.

Got a headache now. Feel free to tear these thoughts apart, I don't bruise like a banana!

Tom

john jay

tom:

thank you very much for your thoughtful and thought provoking comment.

the great exponents of natural law thought the best expression and governance of such a system occurred when presided over by magistrates, persons to whom disputes could be referred for orderly disposition. given that the greatest exponents of this system were english, they had a natural affinity for english courts and the administration of the laws found there.

just as you have put your finger on the exact issue of how some conflicts at the hightest levels are resolved, so too the proponents of natural law recognized the difficulties presented by such problems. (nowhere in our history has this issue presented itself with such clarity as the latter days of richard nixon's presidency, when the talk of impeachment was in the air. at that point, it was seen that mr. nixon was extremely vulnerable by attack from his congressional foes, who openly talked impeachment. some people noticed, however, that mr. nixon if backed by a loyal military, was an executive who commanded considerable power, and who would continue to command considerable power until physically removed from office, if the military continued to obey his commands. they noticed, moreover, that the congress, which would return the indictment of impeachment and would try the case, as happened w/ mr. clinton, and that the supreme court, likely a final place of resolution and enforcement of articles of impeachment for which a president was found guilty after trial, possessed no military strength at all. the president tops the chain of military command. the congress and the supreme court are not in the chain of command at all. the question thus posed, what would happen if a u.s. marshall appeared on the white house porch with an order for mr. nixon to vacate and remove himself, [judgments and sentences are not "self enforcing:" someone has to execute the j&s and carry out its terms, by force, if necessary. the question posed by this situation, is how would "force" line up in support of either a president or a congress & supreme court. such a question has never been answered in our history: than g_d.] only to be met by an armored brigade, was never answered, as mr. nixon resigned from office, some feeling, as i do, that he wanted to avoid this quite likely scenario. so, to this day, we do not know how it would resolve itself, were a president to resist the execution of articles of impeachment for which he has been found guilty.)

as noted, this issue vexed the political theorists who advocated government by adherence to laws and the decisions of the magistrate to resolve political conflict.

what did they do?

they turned to history, and to g_d.

they noted that within the context of english history, those in political conflict at the highest level turned to war, or armed rebellion if trying to unseat a tyrant, and that those in power resisted the attempts of usurpers t unseat them.

where did the truth lie?

why, the truth lay in the outcome, and the outcome was a contest quite literally submitted to g_d as the ultimate magistrate.

in short, though i have never seen it expressed just this way by hobbes, or locke or blackstone or our own federalists, all great exponents of the natural law theories of governance, it was societal trial by combat.

the theorists simply recognized that in some situations resolution of a problem was insoluable by political process, by recourse to legal solution, and that the only resolution was by force of arms, the contest and its outcome to be revealed by the will of g_d.

so, do not feel bad tom if this has given you a headache. it is a problem that proved stubborn and intractable to these great minds as well, and all they could say was that on occasion even the very best of systems, and they regarded the system ruled by law and the magistrate as the very best, indeed, would be faced with situations in which the system would prove inadequate to resolve.

the old saying is that "violence is the last refuge of the incompetent." when a system of administration or legal process is incompetent to resolve some problems, the history of mankind, the history of our heritage and civilization, is replete of examples when force of arms, trial by combat, has been required to reveal the "truth" of the matter.

please look to the earlier articles at this blog, with regard to hobbes, locke, blackstone and the federalists, regarding this very vexing political problem.

war, tom, war is the resolution of vexing problems that cannot be resolved by resort to process, rules and law. when the force of reason is exhausted and cannot find workable truth, resort is taken to the force of arms to find a truth sufficient to govern the day.

as it is, as it has ever been, and as it ever shall be, ... , seems to provide the answer, if it is an answer.

john jay

p.s. please forgive the rather chaotic syntax of this response. i should have taken more care in the answer and "imported" it in to this little box, but i did not. the subject, which is complex, sort of got away from me. but, i hope this meets the directtion of your remarks/inquiry. jjay

Frank

While there is a definite logic to the sequence of your writings, I fear that the last leap -- taking war from against islam in the abstract to against individual muslims -- is speculative enough to render it no more respectable than the unabomber's ravings.

john jay

frank:

who are combatants made legitmate targets by their aggressive actions, and their support of the same? --

the front line combat soldier engaged in battle?

the mess tent cook?

the truck driver who hauls the logistics train?

the munitions factory worker?

the farmer who raises the livestock, poultry, feed grains and vegetables that feeds the armies?

the newspaper editor who fans the flames, "remember the maine!"?

the minister who passes moral sanction and sausion upon the endeavor of "just war?"

the university theological don who teaches with approval st. thomas acquinas' and st. augustine's doctrines on "just war?"

the civilian population that cheers the triumphant soldiers at parade, and who number in the thousands at bond rallies to finance the war effort?

the humble tax payer?

almost all laws assigning criminal responsibility to a person for the criminal actions of another do so on the basis that such person has done something to aid, abet, further or encourage that other. such are the philosophical and legal distinctions between someone responsible for and someone innocent of the criminal actions of another.

where in this continium is the line drawn between a person who acts with violence and his supporters, and a person who merely knows and approves?

imagine this scene. a bar in boston, mass. and a speaker from the political arm of the i.r.a. asking for funds to support the i.r.a. men drinking at the bar, reaching into their pockets and billfolds for change and bills, passing the money into collection plates, an irish catholic priest sitting in the corner smiling, girl friends and wives cheering as the irish rovers play on the jukebox. a bar tender with his apron, wiping down the bar, as the janitor with head down sweeps the dust bunnies in the corner.

two off duty boston detectives and a beat cop survey the scene, and do nothing: the sovereign is indifferent.

it is the height of the london bombings.

who is complicit frank, and who is not? how does one separate the wheat from the chaff? does the difficulty of the process foreclose all efforts on the part of an attacked population to fight back? is such a population rendered morally impotent and passive with respect to their ability to defend themselves?

with regard to my "last speculative leap" that makes me a raving lunatic, what of muslims in armed camps and compounds who train with small arms and explosives, while their wives and families are present, the children trained in onsite madrassas in islam and the jihad against the west? in the west bank? in pakistan? in afghanistan? in up-state new york? in virginia?

where is the line drawn?

i do not mind if you favor me with your response.

john jay

Pamela (Atlas Shrugs)

The line drawn by Frank is a line drawn by most free men living in a freedom, a freedom that they themselves did not fight and die for. Their freedom is assumed, inherited--an entitlement of freedom, as it were, to which they have no right to assume.

They are "post historical" and essentially ridiculous.

A Sermon for the West Oriana Fallaci

On October 22, 2002, Oriana Fallaci addressed an audience at the American Enterprise Institute. Following are short excerpts from her talk. Ms. Fallaci, a native of Florence, Italy and a life-long journalist, caused turmoil across Europe with the publication of her book The Rage and the Pride, calling the West to stand up to the Islamic world.

I don’t hide. I never have. I stay at home because I like to stay at home, and at home I work. I have not appeared in public for at least ten years. No interviews, no TV.

Why am I here, then? Because, since September 11, we are at war. Because the front line of that war is here, in America. Because when I was a war correspondent, I liked to be on the front line. And this time, in this war, I do not feel as a war correspondent. I feel as a soldier. The duty of a soldier is to fight. And to fight this war, I deploy a personal weapon. It is not a gun. It’s a small book, The Rage and The Pride.

My soldier weapon is the weapon of truth. The truth that begins with the truth I maintain in these pages:

From Afghanistan to Sudan, from Palestine to Pakistan, from Malaysia to Iran, from Egypt to Iraq, from Algeria to Senegal, from Syria to Kenya, from Libya to Chad, from Lebanon to Morocco, from Indonesia to Yemen, from Saudi Arabia to Somalia, the hate for the West swells like a fire fed by the wind. And the followers of Islamic fundamentalism multiply like a protozoa of a cell which splits to become two cells then four then eight then sixteen then thirty-two to infinity. Those who are not aware of it only have to look at the images that the TV brings us every day. The multitudes that impregnate the streets of Islamabad, the squares of Nairobi, the mosques of Tehran. The ferocious faces, the threatening fists. The fires that burn the American flag and the photos of Bush.

“The clash between us and them is not a military clash. Oh, no. It is a cultural one, a religious one. And our military victories do not solve the offensive of Islamic terrorism. On the contrary, they encourage it. They exacerbate it, they multiply it. The worst is still to come.”

President Bush has said, “We refuse to live in fear.”

Beautiful sentence, very beautiful. I loved it! But inexact, Mr. President, because the West does live in fear. People are afraid to speak against the Islamic world. Afraid to offend, and to be punished for offending, the sons of Allah. You can insult the Christians, the Buddhists, the Hindus, the Jews. You can slander the Catholics, you can spit on the Madonna and Jesus Christ. But, woe betide the citizen who pronounces a word against the Islamic religion.

My small book is not tender with Islam. In certain passages, it is even ferocious. But it is much more ferocious with us: with us Italians, us Europeans, us Americans.

I call my book a sermon—addressed to the Italians, to the Europeans, the Westerners. And along with the rage, this sermon unchains the pride for their culture, my culture. That culture that in spite of its mistakes, its faults, even monstrosities, has given so much to the world. It has moved us from the tents of the deserts and the huts of the woods to the dignity of civilization. It has given us the concept of beauty, of morals, of freedom, of equality. It has made the unique conquest in the social field, in the realm of science. It has wiped out diseases. It has invented all the tools that make life easier and more intelligent, those tools that our enemy can also use, for instance, to kill us. It has brought us to the moon and to Mars, and this cannot be said of the other culture. A culture, which has produced and produces only religion, which in every sense imprisons women inside the burkah or the chador, which is never accompanied by a drop of freedom, a drop of democracy, which subjugates its people under theocratical, oppressive regimes.

Socrates and Aristotle and Heraclitus were not mullahs. Jesus Christ, neither. Leonardo da Vinci and Michaelangelo, and Galileo, and Copernicus, and Newton and Pasteur and Einstein, the same.

My book is also a j’accuse. To accuse us of cowardice, hypocrisy, demagogy, laziness, moral misery, and of all that comes with that. The stupidity of the unbearable fad of political correctness, for instance. The paucity of our schools, our universities, our young people, people who often don’t even know the story of their country, the names Jefferson, Franklin, Robespierre, Napoleon, Garibaldi. And no understanding that freedom cannot exist without discipline, self-discipline.

I accuse ourselves also of another crime: the loss of passion. Haven’t you understood what drives our enemies? What permits them to fight this war against us? The passion! They have passion! They have so much passion that they can die for it!

Their leaders, too, of course. I met Khomeini. I discussed with him for more than six hours in calm, and I tell you that that man was a man of passion. I never met bin Laden. But I have well observed his eyes. I have well listened to his voice. And I tell you that that man is a man of passion. We have lost passion.

Well, I have not. I boil with passion. I, too, am ready to die for passion. But around me, I see no passion. Even those who hate me and attack me and insult me do this without passion. They are mollusks, not men and women. And a civilization, a culture, cannot survive without passion, cannot be saved without passion. If the West does not wake up, if we do not refind passion, we are lost.

To quote from my book:

“The problem is that the solution does not depend upon the death of Osama bin Laden. Because the Osama bin Ladens are too many, by now: as cloned as the sheep of our research laboratories…. In fact, the best trained and the more intelligent do not stay in the Muslim countries... They stay in our own countries, in our cities, our universities, our business companies. They have excellent bonds with our churches, our banks, our televisions, our radios, our newspapers, our publishers, our academic organizations, our unions, our political parties…. Worse, they live in the heart of a society that hosts them without questioning their differences, with- out checking their bad intentions, without penalizing their sullen fanaticism.

[“I]f we continue to stay inert, they will become always more and more. They will demand always more and more, they will vex and boss us always more and more. ’Til the point of subduing us. Therefore, dealing with them is impossible. Attempting a dialogue, unthinkable. Showing indulgence, suicidal. And he or she who believes the contrary is a fool.”

john jay

pamela:

thank you for your comments.

thank you for reminding us of the stature and brilliance of ms. fallaci. you are, at atlasshrugs, her worthy successor both in passion and the clarity of your vision, and she would be pleased to know that you have carried on in her tradition.

thank you, again. i am honored.

john jay

Frank

jj> where does one draw the line?

Indeed, that is the question. But as an exercisor of (hypothetical) violence, the burden of proof will be on you to justify any particular act of self-defense. You would need to convince your fellow man, be it a jury or just average cloudy-headed onlookers, why _your_ line is right.

john jay

frank:

yes.

i think you state that issue rather precisely. very precisely indeed.

as roy medvedev said in another context, "let history judge."

i take solace in the hope, that good, bad or indifferent, i will be remembered in the company of those like orian fallaci and her successors who argued passionately for western civilization and doing what is necessary to preserve it as against the muslim tide.

but, yes, in your last note, you state the matter very precisely.

john jay

john jay

p.s. for those of you interested in this issue, i have a post sizzling on the griddle regarding the recent heller decision by the supreme court.

in the decision, justice scalia writing for a majority of the court argues that the natural law doctrine of self defense and preservation of self is the very foundation of the second amendment right belonging to individuals to keep and bear arms.

the majority opinion does not go so far as to argue that the individual may make war against a marauding enemy as i have, and as have hobbes, locke and blackstone.

but, if you will read the links to previous articles in this blog on those topics, you will find that my views are not so very removed from the rights upheld and asserted in the heller decision.

a lawyer may argue before the court the benefits of the law as it is constituted. since time imemorial, a lawyer may also plead and argue the court for a rational and logical extension of the law which covers his particular factual circumtance before the court, may plea the judge to extend the law as he requests to his or the public's benefit. that is how the law progresses, and that is what keeps it from being eternally fixed.

as a lawyer, i would be well pleased to ask for the extension of the law of self defense as i have asserted it here, for my own or for a client's benefit.

i would not be embarrassed to do so.

would i prevail? at roy medvedev observed, "let history judge."

tune in for the next installment, please.

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Working...
Your comment could not be posted. Error type:
Your comment has been posted. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.

Working...

Post a comment

Your Information

(Name and email address are required. Email address will not be displayed with the comment.)