(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.
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