Appendix II

Prolegomena to Any Future Noumenology

David C. Braun

© 2006 David C. Braun

Appendix II

What follows is not primary to but dependent on the system; its separation from the main might rob it of a certain force, if not of its intelligibility.  I thus deemed its inclusion the only practical solution to the problem of how to articulate it.  The text will also assume what is but by hint shown before it as to ethical, religious and political matters.  I realize that the risks of such inclusions are present, but deem it appropriate, especially given the heated discussions of related issues at present, to venture my thoughts as set forth in the sequel (to the extent they would be at all helpful, though I fear they may be provocative of more recriminations than reflections).

I

The relation among persons found in government, that of power, has been criticized in the more recent past as being per se wrongful or wrongheaded.  Those who, as much in opposition to conservative proponents of past injustice as in opposition to anarchists opposed to such and other injustices, defend government point out that the theory of ethics, not satisfied with its own elucidation in abstracto, suggests our transit to practice with its own urgency.  Our practice of virtue and fairness leads to provision for the needs of the common life (the result of harmonic love), needs such as those occasioned by the emergencies of natural disaster and economic dislocations in which an ordered response is more adequate to the task these needs set before us.  Such an organization executing an ordered response in an ethical fashion can be used to bring order in general to our common life, which ought to be according to order; whence the advent of law and of its enforcement of the ethical as the truly orderly way.

But this argument, catering patently to the noble moral predisposition toward alleviating every sort of malady (including tragedies without fault), seems at best artificial.  Worse, it may call for more government than needed, to the extent private organizations could conceivably discharge such functions.  Some activities now generally governmental were under the aegis of private bodies or of public opinion.  Only by convenience, arguably, would government assume such functions. Although the lack of taxing authority would be a telling argument for our needing a government to discharge some of the contemplated functions, it seems to pale in light of the voluntary nature of many forms of tax collection or of the lack of compliance therewith in general.[1]  (Arguably taxation is nearly on a par with, e.g., tithing, but for the threat of prosecution and incarceration for those who fail to comply with the tax laws.)  Arguably, moreover, the aid of many good-natured people and the presence of community opinion may supplant (in some ethical community) the lack of taxing power.

Does the above projected (if not also real) debate provide the answer to the question of the morality of the power relation?  Is the power relation nearly as unavoidable as the need to exercise certain bodily functions, rendering the above debate meaningless?  Specifically, if I am to eat, I next need to acquire; my acquiring presupposes the concept of property if I am not to fight my neighbor (for example, over food sufficient for one).  Property-allocation, however, assumes the exercise of power in relation to things recognized as property.  For me to say, “This is mine; do not touch it,” is to coerce any other and thus to exercise power.  Unless I decide to cease eating altogether, I should very much require a system of property, and self-starvation’s morality is, I think, at best dubious.  Accordingly, I can hardly cancel the power relation morally; the question becomes one of how it should be exercised.[2]  Anarchism thus becomes, at best, a form of “unorganized self-government” (a contradiction); otherwise it is either an unrealistic temptation or a vision of the celestial New Jerusalem.

If I cannot avoid the power relation or coercion, my question is in relation to its legitimate exercise.  Hereof the only considerable response from the ethical standpoint necessarily involves the consent of the coerced to that power relation expressed as rule or government, as a starting point; that will must be ethical.  One can have government without law (Pol Pot’s Kampuchea, for example, had government but hardly law) or law without government (e.g., the Torah in the shtetl operated by consent and without a power-wielding government as we know it).  But as the power relation without the order or the ethical is neither useful nor ultimately ethical, government must involve the rule of law.  Anarchism and law are not entirely antithetical, though law tends toward the coercion that anarchism tends to disdain.

We are also familiar with the right of the individual human, as a free entity, to live as free, to think and believe freely, to control his or her own destiny, to have such personal liberty respected by others, this being that person’s endowment by right and (in theology’s perspective) given by God.  We hold this liberty, which includes the liberty of conscience (free exercise of religion) to be what our ethic requires us to observe because it is under the head of love and respect (which are harmonic, in that my recognition of the other as a free moral agent requires me to give it such).[3]  Moreover, as God would aid religion to the extent required to protect it from error, so as not to have us lost by error or being in disharmony with the way intended, even by inadvertence or by excusable ignorance, yet God does not waste such special gifts where reason can suffice, e.g., in the natural sphere.  We ascribe no such protection, then, to any unaided magisterium on its own, especially in transcendent matters we cannot meet by mere empiresis, experiment, hypothesis, ratiocination or mathematics.[4]   Hence our ordering of the common life and our religious life we entrust, on our own or by divine direction, to appropriately distinct organizations.  By principle we keep the rule of the common life, its constitution and its organization out of the religious bodies’ affairs and vice-versa, so that, no matter our belief in religion, we may enjoy the benefits each provides to our community in harmony.

Our body of ethical precepts and corollaries therefrom (i.e., our constitution and laws, for what is law but our tool for engendering order by competent, accepted authority, and what is order but harmony?) we desire to retain in consistent form, as we premise it in whole upon the harmonic.  We should therefore be disturbed if our development of this body of precepts and corollaries were ever to show a contradiction, the sign not of mere error but (for our ethic) of the unethical.  Such a contradiction we should seek to remove, preferably by examining the root of our going into contradiction to see if it is mandated by and inevitably issued from our harmonic ethic.  We could find our contradiction to be only a false one; however, we could find ourselves in a position not unlike that of God confronted with human freedom and abuse of that freedom.  Such a problem we would find not soluble but merely endurable.  Whatever problem we find and however we find we must either deal or live with it, we will have to bring before the community, i.e., all of the people of sufficient age and judgment, in virtue of their freedom, which must be respected in this enterprise affecting them.  But beyond our above principles we find our way into difficulties, as will appear in the sequel.

I caution the reader not every law is necessarily an ethical or moral matter, as some laws treat of matters ethically adiaphoric in nature.[5]  Nor is every law without exception ethical or just; South Africa’s former system of constitutional apartheid was riddled with injustice throughout. I treat herein ends, not facts; accordingly I offer no detailed jurisprudence directed toward the minutiae of the law (taken specifically or jurisdictionally). I suspect no such theory can be offered that does not stray into a fundamentally alien field of public policy, a field not to be confused with the philosophy of law, the only interest to be served herein, only (moreover) insofar as it is related to the general theory of ethical value.

II

            To the extent law is the system of rules enacted or announced by competent authorities (responsible under the constitution to the constituent population as a whole) for securing order and justice, it is law in the fullest sense of the term when it is according to harmony and is fully so only insofar as it conforms to the ethical obligations called natural law or the law of reason.[6]  This law, moreover, must respect the rights of other free wills, i.e., the rights to exercise free will in relation to that individual, if it is to be harmonic. As every person is an ethical or moral agent (I pass not on sanctity), law cannot be fully law except according to a constitution from the people for the government of their affairs.  Such a constitution must likewise respect the free will of the governed, including the rights of freedom of speech, assembly, petition, the press, and of religion and the conscience (which, for religion, must be unconstrained so as better to honor God from the heart).  To secure these rights, government cannot decide how people are to think or believe, and in matters not of the immanent government ought to maintain a studied neutrality because of its lack of competence and, even more importantly, because any forays by the collective into the area of belief must necessarily abridge freedom of others in some way, and would give rise to an occasion of offense against the rights of others.  Even the atheist has the right to agree to the constitution on principle, not necessarily by compromise, as does any believer; this can be only by a neutral pact.  Every free person’s rights to freedom and its exercise in general is to be protected, including the rights in relation to his or her life, as essential part of its exercise in the republic.

The problem arises in relation to the several rights and conditions for the most orderly and rational system. It pits liberty so against the rational basis for law that it is insoluble.  Therefore I call it the Antinomy of Jurisprudential Reason.  We understand that there are conflicts between various concepts of liberty and law under a constitution (e.g., freedom from unreasonable warrantless searches and seizures and the right to continuing privacy as protection from public exposure as continuing invasion of privacy against the interest of government in apprehending and punishing offenders to protect society as a whole).  Such disputes are usually balanced on the basis of facts and on the weight assigned to each interest according to a rule (e.g., absolute protection from invasion, protection except against regulations strictly necessary to effectuate compelling state interests, protection except against regulations reasonably related to substantial interests, or protection except against regulations reasonably related to legitimate state interests).  But the Antinomy set forth below seems not to allow a solution totally satisfactory.

Antinomy of Jurisprudential Reason

Thesis

Every constitution guaranteeing freedom and due process of law as harmonic order assumes the dual premises of the reality of the world and the true freedom of the will (cf. the notion of voluntary activity in relation to criminal responsibility, or in relation to ability to conform and not to endanger oneself or others so as to avoid civil commitment), which assume or contain the further premise of the reality of God (as ultimate Guarantor thereof).[7]  Without these assumptions and their content, we cannot meaningfully propound and live by such a system, which becomes absurd.  As God is the necessary Basis hereof, all rights are rights except as against the plenary divine right over transcendent affairs, including the right to apportion human life against even the ego’s right over itself in privacy. Hence suicide and assisting a clearly voluntary suicide must be contrary to order and law and not rights.

Antithesis

Every constitution guaranteeing freedom and due process of law as harmonic order requires the full protection of the free, unfettered and uncoerced will in matters of belief, and must thus be grounded on independent principles of a religiously neutral nature in order to command rational assent and to be developed as a rational system of rationes decidendi (et oboediendi) for the necessarily pluralistic free society. Thus God’s reality cannot be taken as a premise for such a constitution or the law thereunder. As God cannot be taken as the Basis hereof, all rights must be held judicially to be rights even against a plenary divine “right” over transcendent affairs, including the right to apportion human life, so as to protect the ego’s privacy over itself Hence suicide and assisting a clearly voluntary suicide must be consistent with constitutional order, as rights.

III

The Thesis gives mere personal (as opposed to public) grounds for assent to the system; the Antithesis seeks simply the necessary conditions for having a harmonic intersubjective system taken on its internal terms for each participant, one of which is the necessary inviolability of each individual, taken as real. But the consensus’ belief, though based in theory on the universal union of “organic human body” with “principle of free will” which makes one human,[8] can be and is overthrown oft by the explicit grounding of (new) constitutions, interpretations and decrees of governments.[9]  Where human liberty is contingent on such a suspension’s absence where its possibility is not excluded, no liberty is safe.  One’s taking the Thesis as a merely private ratio oboediendi leaves only an arbitrary, capricious ground for respect for humanity and for preservation of human life and liberty with respect to the question of who or what is a person for the purposes of the law.  Thus the argument of the Thesis is necessary to the guarantee of liberty.  And, as against the self, the law cannot allow the frustration of free will as to its public operation, the consequence of, e.g., avoidable demise without treatment or of suicide.  But that construction serves to overthrow the paramount nature of the will as ground for the law with respect to the government’s right to frame a law.

But if I invoke it as other than a private jurisprudence, as a ratio decidendi, I do so at the risk of negating at the root the possibility of a pluralist constitution. I must thus unequivocally outlaw the kaishaku[10] even though he acts according to his faith; I must also require judges to affirm in rulings of the courts what they may not personally be able to hold.  (How differs this from the law’s compelling a Muslim who is a judge in America to award statutory interest on a judgment, or a Catholic who is a judge to grant a divorce where the evidence is sufficient for it?)  State promulgation of a belief such as this would be state-ecclesiasticism; I can divine therefrom, through the educational functions of government (functions reasonably related to avoiding pauperism among the great mass of the population and to equalizing their opportunities in society — to say nothing of the function of law itself, in part to educate the public as to behavior permitted or forbidden), the implications against liberty of conscience and of familial education of children.  For if the ground of respect of personal dignity is the state-professed idea of God, invariably that idea must enter into education.  Above all, the nonreligious cannot participate in such a ratio status unless it really becomes naught more than a mere positivism already characterized by the Antithesis, a positivism[11] potentially in opposition to the ratio of the Thesis.  (If the constitution of an officially theistic land has no religious test for the judiciary, its theism is but lip-service and its true jurisprudence is of the Antithesis, at least with respect to such a judge.)

IV

All law rests on the premise of the coercion of liberty.  Not only is criminal law coercion of liberty (if you kill, rape, steal, etc., we will imprison, fine or execute you), but so is civil law (if you fail to pay damages, execution will be had against your property; or if you fail to pay support or to obey a court order or subpoena as directed, you will be adjudged in contempt and may be incarcerated), to the extent that behind an order in a case may lie a veiled threat.  The law exists to enforce uniformity and conformity of behavior in many spheres as well as to protect and adjust rights and to effect the orderly provision for the general welfare.  It restrains the malefactors, contract breachers, trespassers and unfair dealers; it does not merely pass out the benefits of organized society.

As the Antinomy questions the problem of coercion of the will by restraining the willing and their aiders and abettors from carrying out suicide, note that here the contradiction arises.  Coercion we use here to protect natural rights (the only possible premise of the right to commit suicide), which must arise from the purely moral-theological ground, along with the very legitimacy of the use of coercion.  The Antinomy implicitly assumes that coercion is always legitimate to accomplish the just, harmonic purposes of the law.  But this assumption remains unexamined in the case here presented, implicitly always accepted, without statement of the conditions for the legitimate application of the rule allowing coercion.  This could serve to eliminate the Antinomy with respect to the immediate question of suicide rights, without having to decide whether we must write into the law a justification grounded explicitly on the premise of a Divinity (the principle of neutrality in matters of religious belief to the contrary notwithstanding).  In other cases of the rights of persons, we would be able to decide affirmatively in favor of their paramount rights under a rule of benefit of the doubt,[12] because the very orderliness of law would otherwise be jeopardized, when any life or liberty could be snuffed out at whim.

The Antinomy indicates that the law by its nature cannot answer the fundamental questions. At best, all one can officially say, without courting it, is that the law in a just, free society must assume the dignity of an apparently rational, sapient species (hence all its members, counted according to the benefit-of-all-doubts rule) and that only by assuming that and the reality of the other persons as given will a social compact in a free society be possible. We are nevertheless left without a ratio decidendi for prohibiting a clearly voluntary suicide (or the assistance of such suicide), assuming that using the coercive power of the state would be appropriate in such an area. This appears to render argument that such laws do not offend the due process clause difficult if not impossible, though suicide generally is disfavored culturally and raises substantial questions regarding fraud against insurers and pauperization of a suicide’s dependents.

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N.B. The position taken in the Antithesis was written before the Supreme Court of the United States handed down its ruling in Washington v. Glucksberg, 521 U.S. 702 (1997), holding that there is no constitutionally protected right to physician-assisted suicide.  Chief Justice Rehnquist, in the majority opinion, balked altogether at recognizing constitutionally a right that had flown in the face of over two centuries of American common-law tradition (based on five prior centuries of the English common law) and subsequent legislative prohibitions by practically every state. The opinion is notable for an altogether inexcusable dearth of discussion of the constitutionally recognized right to bodily self-determination.  That right the Court first recognized in Union Pacific Railway Company v. Botsford, 141 U.S. 250, 251 (1891). The Court would later elaborate the contours of that right at further length in Griswold v. Connecticut, 381 U.S. 479 (1964), Roe v. Wade, 410 U.S. 113 (1973), and their progeny. Justice Souter, while discussing the privacy-related right to bodily self-determination, was concerned with the potential for erosion of the so-called right to physician-assisted suicide into voluntary or involuntary euthanasia.  To avoid the dim prospect of a doctor’s thus getting into euthanasia, Justice Souter raised the specter of euthanasia as a basis for finding a compelling state interest that would outweigh an asserted fundamental right.  Justice Stevens, while inviting continuing debate on the issue, deemed the issues of mental depression and family pressure to weigh as factors justifying the Court’s finding compelling interests to outweigh such a right.  It is confessedly not the office of a philosopher to prescribe to that august Court how it ought to rule on any given issue.  But the philosopher cannot be blamed for wondering to what extent the Court did not fail to make a coherent, well-reasoned body of thought on the question of bodily self-determination in deciding that question of constitutional law.  Nor can a thinker avoid comment on the Court’s apparent embrace of the notion of the “sanctity of human life,” a shibboleth that comes close to raising precisely the concerns addressed in the Antinomy.  [I freely confess, without need for “rendering,” that this note was written before the Supreme Court had brought upon it a certain scandalous shame by issuing an opinion denying its own value as precedent, in effect a “lawless” decision for a common-law jurisdiction where stare decisis is a prime rule.  Bush v. Gore, 531 U.S. 98, 109 (2000).  That shame resulted in the “election” (or, better, “selection”), for the Republic, of a chief executive whose administration, apparently as a matter of policy, countenanced the torturing not only of truth but also even of human beings.]

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[1] One thinks of the voluntary nature of compliance with the laws regarding federal income taxes and the filing of tax returns in the United States, or of the commonness of tax avoidance in, e.g., Italy. However, even in Italy (as well as in America) there are celebrated criminal cases brought against people for tax evasion.

[2] I do not mean to suggest that society does not have a “natural foundation” on the basis of the human family, or that religious commandments to honor parents (as accepted implicitly in one’s accepting the deposit of religious revelation defined by the Catholic Church accepted on the basis of the signs discussed in Appendix I) have no bearing on discussion regarding the obligation to obey civil authority in matters wherein the moral law is not violated as a result. But neither the Church nor I attempt to divine from such commandments a theory of the state.  Moreover, were one to attempt to devise a theory of the state therefrom, one may indulge an occasion of immoral conduct or belief, such as racism or the bloody nationalism that cost all too many lives without bestowing any particular benefits in several wars of the twentieth century.

[3] The reader should turn to §30 of the main text for the discussion of harmony and love as to be valued, as also to §25 regarding personal freedom and §21 regarding the reality of God.

[4]As to the magisterium of the Church, see Appendix I.  The “unaided magisterium” I used to refer to the state specifically as unaided judge in matters of faith and morals, whether by the arm of an official state Church that cannot lay claim to other than human foundation (as, e.g., the Church of England) or otherwise.  I mean also by the same token to express clearly that the Catholic Church cannot rightfully claim, by virtue of its plenary authority to define the deposit of revelation in matters of faith and morals, to invade the field, e.g., of science, an invasion not necessary as God has given humanity adequate natural instruments for such a task, a point already hinted at in §22.

[5] I draw attention, e.g., to the niceties of the rules of procedure as such, or to the legal prerequisites for making a gift, or to such points as the doctrine of worthier title.

[6] As the last paragraph of the prior section had suggested, I read no minutiae from the concept of natural law I frame, and therefore hold it does not reach several questions at all. I recognize that “natural law” has been used at times to attack legislation wholly salutary and ethical in my reckoning, e.g., the child labor laws (on the premise that employers had a natural right to employ whom they pleased).  “Natural law” has also been employed to advance an agenda abhorrent to those who would have joined in attacks on the child labor laws; this turnabout has engendered the charge that natural law is but a prostitute, a charge leveled against the law itself as well.

[7] As §29 of the main work made clear, resort to the veracity of God must be made ere I may conclude that the world of sense is to be trusted or that the other it presents is as given, whose intelligible activity represents a separate and free intelligence appearing through its activity (e.g., language) to betoken at once the state of being bound to sense-experience and that of a freedom analogous to mine.  Moreover, freedom of activity is not proper to an entity which cannot choose not to be, if all things are a se and are inherently active (see §21).  Hence freedom likewise is created by God.

[8] This was acknowledged by legal authorities as early as Sir William Blackstone in his Commentaries on the Common Law of England (9^th ed., 1783), vol. I, p. 125 (“The absolute rights of man, considered as a free agent.., are usually summed up in one general appellation, and denominated the natural liberty of mankind.., being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued (sic) him with the faculty of free-will”); id. at 129 (“The rights [of Englishmen] ... consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either the residuum of natural liberty... or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals”).

[9]E.g., Dred Scott v. Sanford, 60 U.S. (9 How.) 393 (1857); the Endlösung of the Hitler régime; cf. perhaps also Roe v. Wade, 410 U.S. 113 (1973).  The last-mentioned involves the difficulty of determining when, in contemplation of the law, the fetus is to be recognized as human, given that the state has a compelling interest in protecting the lives of human beings, as the Roe Court acknowledged.  The difficulty the Court did not recognize was that it thereby appeared to arrogate to itself a position not materially different from that of the Dred Scott Court, i.e., the Court played God.

[10]The kaishaku assists in performing seppuku, i.e., ritual suicide, by using the long sword to behead the suicide should the latter hesitate to complete the act.  Among Japanese whose lives are regulated by bushido, the code of the warrior, and whose religious orientation is rooted either in Buddhism or in Shinto, to act in such a capacity was an honor.  Western European attitudes towards suicide are rooted essentially in the ethic of Catholicism, which regarded suicide as a mortal sin evidencing despair of salvation and total rejection of life — and salvation — from God, and denied the suicide burial in consecrated ground unless the suicide (if that were what had occurred) could be laid to insanity.  A related attitude occurs in Judaism, which regards suicide (where committed in circumstances where it is not elected as an option in lieu of apostasy, hence a form of martyrdom) to be hillul ha-Shem, blasphemy against the Name.

[11]Herein legal positivism, i.e., the view that law (including personal rights) is but the positive enactment, whether by constitution, statute, rule of procedure or case law of the courts (in jurisdictions where the common-law tradition is followed to any extent), is meant.

[12]Several have pointed out that the attempt to protect the fetus as a person essentially requires enacting a religious tenet (when ensoulment occurs) into law, an act inconsistent with the necessarily pluralistic basis for constituting a free society.  Cf, e.g., Webster v. Reproductive Health Services, 492 U.S. 490, 566 (1989)(Stevens, J., concurring and dissenting).  A benefit-of-doubts enactment would appear, moreover, to allocate a burden of proof away from the government toward the individual in criminal cases, similarly problematic for a free society even if that theory (or a religious one) were but underpinning for a constitutional amendment.  (Where society requires the accused to prove his or her innocence, it is not far from compelling a person to incriminate himself or herself and not far from “the rack and the thumbscrew.”)  The difficulty regarding the benefit-of-all-doubts rule is nevertheless equally present in quite nearly any case involving killing of what the government alleges is a human being as, firstly, that the other is actually as given is provable only upon drawing from philosophical theology.  The law cannot but assume that those appearing as other persons are in fact other human persons possessing free choice, persons entitled to treatment as res sacrae, as possessing the dignity of a human being whose life may not in the ordinary course of events be taken except under extreme circumstances. The circumstances that ought to obtain before taking of life may be at allowed generally involve, in point of law, the strict necessity of taking that person’s life in self-defense (I prescind for the moment from the justification that taking life was necessary to prevent the commission of a forcible felony, statutorily authorized in several jurisdictions, and from discussion of the “castle” doctrine regarding one’s right to use deadly force in defense of self or others or to prevent a forcible felony when one has a right to be in his or her home superior to that of the victim), with good reason, as self-preservation is one of the basic laws of organic life, and as minimal intrusion into another’s rights for such purpose is consistent with a general harmonic ethic cognizant of divine proprietary rights and the rights of others.  But, given that allowance, one is constrained to ask whether a contemplated killing under any circumstance is morally licit, a question arching over into determination of questions such as the justice of collective killing of one person (judicial execution) or of a group (war).  A minimally-intrusive allowance for self-defense appears to be the only rule consistent with the foregoing, and tends to mandate at a minimum the more sophisticated theory of bellum iustum current in Catholic theology before conscientious objection gained acceptance and to require even more restrictions regarding capital punishment than current under Proffitt v. Florida, 428 U.S. 242 (1976). As a resolution of the abortion question, one wonders whether, in light of developments regarding in vitro fertilization and like achievements, a tertium quid might be available to allow termination of pregnancy without death of the fetus.