Philosophies of Georg Jellinek, Hans Kelsen, Carl Schmitt

(as described in the “Shield of Achilles” by Phillip Bobbitt)

JELLINEK
“Only a valid law is part of the legal order; the test of that validity is the ability of a norm to motivate compliance by engendering a sense of obligation, and because we only feel a sense of obligation to those laws we believe are valid.” And “A valid law is simply one that is accepted as valid.” Jellinek thought that social norms determined the validity of a law.
While listening to Senator Diane Feinstein this morning on C-Span discussing an amendment which would, in her mind, undermine the Heller vs. District of Columbia in the case of private citizens owning weapons in the District of Columbia, I realized an application of Jellinek’s idea of a valid law being simply one that is accepted as such. In the case of the Second Amendment, which was at issue in Heller vs. District of Columbia, a valid law is the right of self-defense. We feel a sense to defend ourselves against all enemies foreign and domestic, i.e., criminals, etc. So laws which punish persons who attack others for reasons other than self-defense should be enforced. These are also valid laws. But when laws are proposed which inhibit the right to self-defense against all enemies foreign and domestic, these laws are opposed in the streets and in the courts because they are not considered valid.
Civil Disobedience is the key here. If your state is an Open Carry State, please feel free to exercise your right to uphold a valid law and openly carry your firearm. The general principle being, that, if a right is exercised it is recognized by society at large as a valid right to be supported by valid laws. When we do not exercise our rights under valid law, we run the risk of losing them by virtue of lack of exercise of those rights, kind of like when we do not exercise our physical muscles, we lose them and have to rebuild them at a greater cost than it would have taken to maintain them.

KELSEN
Kelsen’s basic idea is that Law is relative, that it is valid only when it is in its proper legal place “if X occurs, then Y ought to follow”; that law is within a “legal order as a hierarchy of norms.” Coercion is legal when it has been ordered by the judicial system; it is valid because it conforms with a criminal statute, which statute is valid because it is in conformity with the constitution of a society; which is valid because the sovereign says so be the sovereign “We the People”, or a king or God, which sovereign can change things at Will. How does this apply to the State? “The State has the juridical status of a corporation: it exists by virtue of a superior legal order that endows it with validity. Because the validity of a legal order is a matter of its correspondence with a norm, it follows that a state can be legitimated by its correspondence to those rules that are the product of interstate norms. In other words, the state is legitimated by the norms of international law, not constitutional law…All legal formations may be arranged as a continuous line of formations gradually passing into one another. This continuous line starts with the contractual community of private law, leads to association, the municipality, the country, then member-state, the federal state, the unitary state, unions of states, treaty communities of international law, and ends in the universal international community.”
So let’s look at this a bit differently, suppose the family unit is the contractual community, next is the physical community, say a town ship in which several family units reside. Now these townships are gathered into counties, which are gathered into States, which become a union of states thereby creating a federal state, with the power to be a party to treaties which create regional communities like the European Union, which then coalesce into a universal international community, such as the United Nations. This would be the precise situation unfolding in the world today.
Let’s look at it from an LDS religious point of view. The Family becomes a ward, several wards form a stake, several stakes form a region, all the regions coalesce under a universal international governing body with a central headquarters. Kelsen’s pattern is correct, but the different between the secular structure and LDS structure is one of homogeneity vs. heterogeneity and that is the discussion of Carl Schmitt.

SCHMITT
Carl Schmitt was a socialist who was instrumental in developing the philosophies which led to the rise of fascism and Nazism in Germany. He postulated that in order for a true democracy to work it must be based “on the principle that equals are treated equally and….unequals are not treated equally.” This would require homogeneity—that is, the “assemblage of equals”, which might include the “eradication of heterogeneity.” This is just a sterile way of saying genocide and ethnic cleansing may be considered justifiable means of attaining a true democracy. It is critical in our day and age to understand that this idea did not die with the Nazis. Certain Islamic regimes will insist upon Shari a Law which promotes homogeneity. Certain Christian schools of thought would not be necessarily opposed to the idea of creating a theocracy in which all those who do not accept Jesus Christ as Lord and Savior should be banished. The Inquisition against Jews and heretics should be proof of that.
Another of Carl Schmitt’s ideas that was embodied in the Nazi regime was the idea that the exception proves the rule. We’ve all heard this as justification for many things. What he meant by this was that there are times when a constitution should be suspended and a dictatorial martial law should be enforced. In the United States of America we have see this happen when hundreds of people were rounded up without due process, held incommunicado, or tried in absentia, or captured and spirited away to secret prisons in countries which were not sensitive to the idea of torture, all in the name of security and peace for the homeland. At the risk of being bold, may I suggest that we are falling for some of Schmitt’s Nazi philosophies? Indeed, Nazism created a world view myth of Aryan superiority that is not unlike the American principle of Manifest Destiny, corrupted into a world view in which the American view is the only view and more importantly, the only right view, not matter what principles and natural laws are violated.

POSITIVISM

A perspective on Law as defined by John Austin.
(Quotes are from “Shield of Achilles” by Phillip Bobbitt, unless otherwise noted).

Positivism is the idea that Natural Law is irrelevant. A sovereign could decide what is Law without regard to its origin. If a sovereign “denied authority to a ‘natural’ law, it ceased to have any legal effect.”
Positivism also redefines the concept of a “just war.” “Justice [is] a matter of morality, not of Law; therefore, war is lawful when the sovereign deems it so.

In the matter of the War in Afghanistan, the majority of the sovereign citizens of the United States of America deemed it to be a “just war” because the persons ultimately responsible for the attacks against them on 11 September 2001 were trained and harbored in that State. There was a moral justification—self-defense and retribution.

In the matter of the War in Iraq, the majority of the sovereign citizens of the United States of America were unsure as to pre-emptive war being a “just war”. For their own purposes, the State of the United States of America, as elected by the sovereign citizens, thereby creating a sovereign state, in the person of President George W. Bush, used Positivism, that is, it was decided that war with Iraq was lawful just because the sovereign State said so. There was no moral justification of self-defense and retribution for crimes committed against a sovereign State. Instead, there was a legal justification; it is possible that in the future the State of Iraq will do something somewhere sometime against someone somewhere. This was the premise of the movie “Minority Report”, in which the State prosecutes people before they commit crimes, thereby preventing crimes. Under this view of Positivism, that the powers that be decide what is Law and what is Out Law, Hitler could justify the murder of millions of innocent people, without due process or with due process, whichever he deemed best fit the circumstances of the moment. Under this view of Positivism, no one is safe in his life, liberty, or property. What’s mine is mine, and what’s yours is mine because you voted me into office, I believe we call this “eminent domain” at its worst.

I think we better start taking the Source of Law in this Nation seriously, whether as Thomas Jefferson say, “the Law of Nature or of Nature’s God”, as embodied in the Constitution or we will be subjected to the whims of an ever-growing tyrannical government with tentacles in every corner of our private lives under the guise of security and prevention. Welcome to the “Brave New World” of “1984” where War is Peace, Freedom is Slavery, and Ignorance is Strength. But that’s okay “Big Brother Is Watching” out for you.

MORE ON FREE WILL

Since Free Will is the basis for all human activity, then it follows that Free Will must also be the basis for the creation of, and legitimation of, the State. Expanding on thoughts from Phillip Bobbitt’s “Shield of Achilles”:

Dynastic Succession, that is, the automatic succession to leadership based upon lineage = “a blind allocation system” or “a choice by society not to actually choose.” Examples of blind choice – kings, juries, the Dalai Lama, and persons born to wealth and power.
Drawing Lots = a random choice, considered to allow God’s will to be done without Man’s influence.
Sufferage = voting by citizens, may be popular, electoral, or representative.

The question becomes, which method of choosing leadership provides for the greatest action of Free Will? It would have to be that method which provides the individual with the greatest possible influence on decisions directly and indirectly affecting his Life, Liberty, and Property, all of which he mush have to provide for the needs and wants of himself, his family and his community. Sufferage seems to best fit that criteria. However, there are questions that arise, such as:
Who can vote?
Only Heads of Households, only property owners, only citizens of majority age, everyone who is a resident, everyone regardless of position or property ownership or citizenship or residency?
How do we vote?
Only by mail, only at designated polling places, with identification papers or without identification papers, by computer or by paper ballot?
For what or whom do we vote?
How do we provide security and accountability at the polling place, and in the place where ballots are counted?
How do we prevent fraud?

Rules protecting sufferage must be simple, well-defined, and designed to best provide for each designated voter to have his or her say in the process of governing. We should exercise Free Will in working towards creating a Constitutionally Correct method of voting in our respective States.

FREE WILL and THREE TYPES OF LAW

FREE WILL
This is based upon two paragraphs on pages 528 and 529 of “Shield of Achilles” by Phillip Bobbitt. Unless otherwise noted, all quotes are from this source. He is discussing the Grotian View and Leibniz.
“The key to human behavior [is]…free will, and the society of free human beings …characterized by development.”
“In human nature [is] a will to cooperate that [has] its basis in the need for individual development.”
“Reason…[is] the tangible expression of this inner human desire for pursuing and nurturing happiness.”
“It [is] the paradox of free will, by which happiness was maximized but the possibility of error enshrined, that [drives] justice.”
“The possibilities of free will always include[s] the option of error, and even the pursuit of evil. For this reason moral values [are] an inescapable part of the natural order—they played a role when men were free to choose.”
Free will is indeed a paradox—it can lead to happiness or to wickedness, for” wickedness never was happiness “ (Book of Mormon, Alma 41:2, when speaking of the resurrection Alma says, “Do not suppose, because it has been spoken concerning restoration, that ye shall be restored from sin to happiness. Behold I say unto you, wickedness was never happiness”). This is why there is ALWAYS a moral component to every action, reaction, decision, indecision in life. There is no neutral ground. You are either on one road or the other. Where are you?

THREE TYPES OF LAW
Natural Law: that which is the way things are done both material and spiritual;
Volitional Law: the things that we choose to do;
Divine Law: that which God commands us to do.

THE INDIVIDUAL AS A BEARER OF RIGHTS/CIVIL DISOBEDIENCE

Phillip Bobbitt says in “Shield of Achilles” (in reference to the Grotian View), that “being a source of law, the individual person is a bearer of rights.” He also says, “Natural Law is a source of the rules that govern states because man is a creature of nature and all his activities are governed thereby.” What does this mean?
Thomas Jefferson says in the unanimous Declaration of the thirteen united States of America of 1776, 180 years after Grotius, “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” What does this mean?
It is my understanding that Natural Law is the law which operates independent of anything Man can do. When Man does anything that violates that law, he is outlaw, and must be reconciled to it by becoming obedient to that law again; paying any recompense that must be paid for the damage done by violating that law. In the spiritual world, we see Natural Law as God’s Law, that body of Laws both temporal and spiritual which He, God, has determined to be the Law for this planet and for His people, Mankind. In the political world, Natural Law is the body of Laws which pre-exist any form of state or social organization. This means that Rights, as we understand them, exist because God bestowed them upon Man and made each individual Man a bearer of those rights by virtue of his birth into this mortal world. Those rights are pre-existent and cannot be violated without accountability before the Judge of the Universe. No State, therefore, can create or bestow Rights with impunity. We are not obligated to obey any laws which violate our Pre-existent Rights. We can choose to obey laws which violate those Rights because the State can use the threat of force to impel our obedience, or we can practice civil disobedience by asserting our rights through refusal to obey that which violates our Rights. A classic example of this is the story of Daniel in the Old Testament. Natural law, that is, God’s Law, requires Daniel to show obeisance to God and God alone, through daily prayer. The State, in the personage of the King, is persuaded to command obeisance to himself, in violation of the Natural Law to show obeisance to God, the Creator of All. Daniel must now choose between obedience to God and obedience to State. He chooses God because Natural Law trumps the Law of the State. We call this Civil Disobedience. He is arrested, tried, and given a sentence of death by lion. God protects him from the lions because they obey Natural Law, when God speaks they listen. The State, in the personage of the King, is now persuaded that Natural Law is superior to the Law of the State, frees Daniel, and, in an example of sowing what you reap, feeds the now very hungry lions, those men who counseled him unwisely to violate Natural Law.
We must begin to practice Civil Disobedience by knowing what is voluntary and stop complying. For example, learn what is a proper use of your Social Security number, and stop providing it. If there is a law or statute or regulation that violates that proper use, then work to change it. Apply this principle of Civil Disobedience to all things which you know to be beyond the Natural Law of government provided by God. The proper role of government, i.e., State, is to protect life, liberty, and property, in those areas in which the individual, as bearer of rights, has delegated to that State, and no other function shall it seize upon as its own.

SELF DETERMINIATION

(quotes from “Shield of Achilles” by Phillip Bobbitt)

“This paradox of self-determination bedevils the nation-state. It is the original sin of this constitutional order, present at the creation of the American nation-state in 1861 and the German nation-state in 1871, the two first models of this archetypal form.”

What is he talking about? I thought the America was conceived in 1776 and born in 1787 with the ratification of the United State Constitution. What Mr. Bobbitt means is this: The America originally created was a State-nation, that is, a State (with a legal and strategic structure) which build a Nation (a cultural and ethnic group-the melting pot of the tired, hungry, poor, tempest-tossed, huddled masses yearning to breathe free, to paraphrase Emma Lazarus’ famous poem on the Statue of Liberty—this melting pot of colors, sights, sounds, and tastes that is quintessentially American). The War Between the States redefined this by disallowing a state of the voluntary Union of the States could not be allowed to secede from that Union because it would disrupt the Nation. The paradox of this is that the Federal Nation did not exist before the Constitution formed the Federal State, but South Carolina (and all the other states) did. President Lincoln’s great accomplishment lay not in freeing the slaves but in forcing the preservation of the Union, thereby changing the relationship of State and Nation. Freeing the slaves should have been done as soon as the Constitution was ratified, but compromises to nourish the creation of a Federal Union with the blood of slaves could only be accomplished by the spilling of the blood of those men representing the compromises. At the point at which the freedom of We the People of any given state to chose their own destiny was denied, that is the point at which the State-Nation died, the seeds of which death were planted by compromising its noble principles within the structure of the Constitution itself.
Today we see this Nation-State reaching is logical conclusion. Instead of the Union that Lincoln thought he was forging, we are descending into the chaos of multiculturalism. Under the State-Nation, all are to be equal in the eyes of the Law of the Land, under the Nation-State all are clamoring for supremacy. Instead of melding into a people who subscribe to basic and common principles of interrelationships between individuals , between individuals and their respective states, and between states and the Federal government, we are descending into the chaos of people clamoring for their own State within a State, irregardless of borders or the claims of other people. This spills over into international conflicts because religious and/or cultural nations, such as the Jewish nation (as opposed to the Jewish State of Israel), the Kurds (a nation but not a State, residing in Turkey, Iran, and Iraq), the Muslim world, the Church of Jesus Christ of Latter-day Saints, all exist as self-governing nations (cultural and ethnic) without a State (legal and strategic) interspersed throughout many States globally.

Phillip Bobbitt says, “The society of nation-states has no more significant responsibility that to manage this paradox. If every nation gets its own state, then who decides the territorial extent of the state when a national group is unevenly spread over many countries, dwelling with in other national groups and encompassing other groups that dwell within it? Each nation-state develops its form of the State for strategic purposes—that is, it selects a legitimate form of the State that will serve as an effective military instrument to resist coercion; but if ever nation gets its own state, then the strategic imperative of the State turns inward, to civil war, as each ethnic and cultural group attempts to assert itself, and the State endlessly divides and redivides along smaller and smaller sociological lines—or the strategic imperative of the State turns outward, to conquest, as each State collects its nationals and those territories important to their welfare, adding new members, subsuming them and then asserting their right to exist within a single state. This is more that a problem, it is a paradox because every nation-state also defines its ”nation” for constitutional purposes—that is, it determines which cultural group on behalf of whose welfare the resources of the state will be deployed. But how can every nation get its own state when every state must choose its nation? Because of this paradox, the society of nation-states rather than the single nation-state itself, sets limits on how a state may define its nation (representative democracy and human rights) and how the nation may define its state (the inviolability of borders).”

Think Israel and the Palestinians to see how untenable this situation is. Yet the solution is held up to the world in the State-Nation of the United States of America as originally embodied in the 1787 Constitution, had not the founding principles stated in the Declaration of Independence and the Preamble been compromised by certain men more focused on the self-interest of certain factions than on the nobility of the principles they espoused. There is a way to balance all competing voices. It lies in the restoration of the American State-Nation in which all nations, kindreds, tongues, and peoples, of all ethnicities and creeds can have a voice through their individual vote and participation in a non-partisan political system in which greed, graft, and corruption are quickly and swiftly punished, in which every vote counts, and in which the rule of common law supersedes sectarian law in all civil matters between individuals , not groups. That is my dream, for what it is worth.

ETHNIC CLEANSING

Quotes from “Shield of Achilles” by Phillip Bobbitt

(assigned reading from George Wythe University).

“Ethnic cleansing is thus not merely a political goal. It is a coordinated set of tactics in service of a well-thought-out military strategy…”

Ø Stage One: Isolated terrorist-type attacks on rural populations, usually in response to some contrived “crime”, driving them from their homes and towns into “safe area” refugee cities, now filled with defenseless, hungry, displaced people.
Ø Stage Two: Besiege the refugee cities, cutting off supplies, and carry on a campaign of bombardment.
Ø Stage Three: Forced surrender of the refugee cities, kill all men of military age, rape the women to humiliate the population, remove the population to resettlement camps outside of their homeland.

There is nothing new in this, just the name and players have changed over the years. It is what the Assyrians, Babylonians, and Romans all did. It is what the Americans did to the First Nation populations. It is what Hitler did. It is what led to the Extermination Order issued by Governor Boggs against the Latter-day Saints. It is what led to the Japanese internment camps during World War II. It is what has happened most recently in Bosnia and in the Darfur region of Sudan. The key element is that the population targeted for ethnic cleansing had no arms or will to defend themselves. They had been asked to give up their arms and this they freely did, not believing that there was any other motive other than to prove their innocence of whatever “crime” they were being accused. NEVER GIVE UP YOUR WEAPONS, NEVER REGISTER THEM, NEVER REVEAL ANY INFORMATION ABOUT THEM.