Thursday, May 03, 2012
Comment “On originalism”
An individual utilizing the moniker Midwesterner has posted a short essay at Samizdata titled On originalism, defending, in large part, constitutional originalism, which opens with the following questions.
What law of physics obligates the existence of a moral code? Why don’t rocks and trees and lions and zebras have moral codes? What is it that makes human decisions a special case that is different from all other things and creatures?
Undoubtedly, there is no law of physics which obligates the existence of a moral code. As to the why rocks, trees, lions and zebras do not have moral codes, well, the answer to that should be rather self evident. It is the last question posited, above, which I think can be answered quite succinctly, as follows.
What differentiates man radically from all other animals is this “Thou shalt not kill.” For to say this is to flout the natural course of events. The animal kills what it needs to; killing is no problem for it at all. Nature is the power to kill. Slaughter is the basis for the development of life. But when he says “Thou shalt not kill,” man affirms that he is different from animals, that he has embarked on a new course—in short that he has found himself a man. “Thou shalt not kill” expresses the true being of man.
That answer is the thought of Jacques Ellul, from his book Violence, and though Ellul is writing from a Christian perspective, the “Thou shalt not kill” he quotes is not a commandment, though it is, but a quite universally accepted societal norm.
Further into the essay, Midwesterner asks the following.
If there is no external imperative obligating a moral code, is no moral code possible?
Putting aside the somewhat hackle raising idea of whether there is, or is not, an “external imperative” for a moral code, the answer to whether a moral code is possible without an external imperative, the answer is an unequivocal yes, and history proves this.
As Midwesterner continues the essay, we arrive at the point where defense of durable agreements, i.e. constitutions, or, pieces of paper with lofty words written upon them, is argued as follows.
...It is only through temporally durable agreements that humans are restrained. “Deserve” is a human invention and subject to human definition. You deserve only what the contract you have with other individuals says you “deserve”. If there is no contract, there is no “deserve”. At root, these mutual non-aggression contracts between humans, acting individually and in cooperation, stand as the only barrier between each of us and unlimited, literally unlimited, violence.
The binding strength of our constitutional contracts is all that holds back violent aggression by whoever is strongest at the moment. Once a society slips from its contractual moorings and floats free, it cannot but drift into primal carnage. If the rules can be flexed with good intentions, it is the strongest who will bend them. Regardless of the good intentions behind constitutional nullification, sooner or later the broken remnants of what started as a mutual non-aggression pact become weapons in the hands of aggressors. When the constitutional contract is nullified it is the strongest, not the weakest, who benefit.
While there is a modicum of validity to Midwesterner’s thinking in regards to constitutions, these pieces of paper, which allegedly restrain unlimited violence amongest men, well, history once again proves that reliance on constitutions, or mutual non-aggression contracts, as protection from violence is a tenuous proposition at best.
I submit that individuals who willingly and eagerly resort to violence, constitutionally backed or not, are beyond the reach of reason, and that assent to constitutions, or so-called social contracts, is a type of social conformity which allows for society wide bad consciences, while at the same time relieving individuals of personal responsibility.