This weekend I wrote a column for the Washington Post on the crackdown of free speech in France. The column suggested that, if the French really wanted to honor the dead at Charlie Hebdo, they would rescind the laws used to hound them and threaten them with criminal prosecution for years. (Indeed, at least one surviving journalist expressed contempt for those who now support free speech but remained silent in the face of past efforts to shut down the magazine). Now, however, news reports indicate that the French government is doubling down on criminalizing speech in the name of free speech after the massacre. France has reportedly made dozens of arrests of people who glorify terrorism and engage in hateful or antiSemitic speech.
Prosecutors have gone out of their way to make it known that they are prosecuting people for speech — a remarkably ironic twist since the victims were prosecuted for the very same thing and died defending free speech against such private or governmental speech codes. Some 54 people have been arrested since the Paris terror attacks. The French justice department has encouraged more arrests for speech violations.
Notably, one of those detained was mentioned in my column, the comedian Dieudonne, who has been prosecuted for anti-Semitic jokes. For earlier posts and columns on Dieudonne, click here and here and here. We have previously discussed the alarming rollback on free speech rights in the West, particularly in France (here and here and here and here and here and here) and England ( here and here and here and here and here and here and here and here and here and here). Much of this trend is tied to the expansion of hate speech and non-discrimination laws. We have seen comedians targets with such court orders under this expanding and worrisome trend. (here and here).
The crackdown in France shows that this is really not about free speech despite the rally in Paris. The West seems to be falling out of faith with free speech, which is now something to be prosecuted rather than protected. Of course, the prosecutions will do little to change minds and will only make the West appear hypocritical and arbitrary. Notably, the arrests this week include four minors. The government is also ramping greater surveillance and searches. So, to recap, the French government just rallied millions for liberty this weekend and then used the attacks to further deny free speech and privacy rights.
In the case of Dieudonne, he ran afoul of the laws by posing a Facebook statement that he felt like “Charlie Coulibaly” — merging the names of Charlie Hebdo and Amedy Coulibaly, the gunman who seized a kosher market and killed four hostages. It was later taken down. He later wrote to the Interior Minister that “Whenever I speak, you do not try to understand what I’m trying to say, you do not want to listen to me. You are looking for a pretext to forbid me. You consider me like Amedy Coulibaly when I am not any different from Charlie.”
Anybody can claim they have “natural rights” to do anything. Saying natural law exists doesn’t make it so. In the real world we have positve law.
http://www.theamericanconservative.com/millman/whats-natural-about-natural-law/
It should read, “There is no natural law library.”
One must place the Declaration of Independence in its proper context. These were men who were trying to declare themselves independent of another kind of god- a King. It stands to reason that they would invoke a higher power in order to claim that there were rights than even a King could not abrogate or infringe- so-called “inalienable rights.” But there is no Great Legislator of the universe from whence this “natural law” has cometh. Who decides when positive law conflicts with “natural law.” You? There are many articles on the Internet which debunk the myth of natural law. In your cited example, it was the Billl of Rights under your state constitution which protected your right to freely speak, not natural law. But I can see that “natural law” is an article of faith for you, and I’m not likely to convince you otherwise. In the final analysis, I put my faith in man’s ability to reason; you put your faith in a god. I trust men not to interfere with our natural abilities unless there is good and sufficient reason. I no more need an inalienable right to freely speak as does a tiger need an inalienable right to hunt prey. I have a mouth. That is how I speak freely. The question is whether the government has a right to stop me under certain circumstances. I rely upon over 200 years of common law precedence to limit the government’s ability to stop me from talking. My faith is founded in a law library; there is natural law library.
Jeff Silberman wrote: “I put my faith in man’s ability to reason.”
Man’s ability to reason is the very basis and heart of natural law theory. You really need to understand a concept before you disagree and argue against it.
Natural law theory is the concept that our world is ordered and operates by natural laws. Scientists use this ordered nature of the world to discover natural laws and articulate them. This is how we got laws of motion, the first, second and third second laws of thermodynamics, the law of the conservation of energy, the law of universal gravitation, the theories of special and general relativity, etc. The idea is that principles can be articulated that enable predictions given a certain set of circumstances.
Well, during the scientific revolution, the same concept came to philosophers of law. It is the idea that just as there are empirical laws concerning the physical world, laws can be articulated that help us understand and be predictive concerning civil affairs. Rather than blindly going along with a hit and miss mentality concerning governance, we need to use our minds to reason and discover the laws and principles that govern civil society the same way scientists discover natural laws concerning the physical world. The job then of the legislator is one who uses reason to create laws that are just and good for all the people, not laws that simply solve an immediate problem and get him and his cronies what they want.
So when you say that you put faith in man’s ability to reason, then you really should embrace natural law theory. There is no other framework in law that calls upon using man’s ability to reason.
“In theory, natural law trumps man-made law, but in practice, it does not. Man-made law will always trump natural law because there is no recourse otherwise.”
Jeff,
Now that we are in agreement that natural law exists, it’s important to discuss the unnamed elements in the equation above; human nature and the social contract.
In the state of nature, positive or man-made law does not exist. The only thing standing between man’s natural rights and nature’s law is our human nature. In nature, man’s existence is dependent upon his critical-thinking skills and ability to overcome his flawed nature to survive. Once man leaves the state of nature and enters into civil society, the social contract establishes laws to account for our flawed human nature.
The ONLY reason for man to enter into the social contract is to provide better security for his natural rights than he could provide for himself in the state of nature. The ONLY reason man-made or positive law exists, is to fulfill the fundamental purpose of the social contract: security of natural rights. This IS the 3rd self-evident truth of the DoI.
Where we begin to get ourselves into trouble in civil society is when we empower others to become our critical-thinkers. Our flawed nature allows us to become dependent upon government for security and we forget that the very people we empowered also have flawed natures and will use that dependence against us. This IS the 4th self-evident truth in the DoI.
Conclusion: We enter into the social contract and empower “government” to establish laws to better secure our inalienable rights. ANY man-made law that infringes natural rights is invalid; we have no obligation to obey such laws. And when necessary, the recourse is for the people to throw out such government that has continually violated its fundamental purpose of securing inalienable rights.
In theory, theory and practice are the same. In practice, they are not. – Albert Einstein
In theory, natural law trumps man-made law, but in practice, it does not. Man-made law will always trump natural law because there is no recourse otherwise.
I am a turkey-at-law so do not presume to lecture me about strict scrutiny. Be it your legal fiction of “natural law” or the natural ability of humans, the government ought not to interfere with the activity of its citizens absent a rational reason or in some cases a compelling reason.
Jeff Silberman wrote: “Man-made law will always trump natural law because there is no recourse otherwise.”
Actually, the recourse is to recognize when such positive law is contrary to natural law, and to acknowledge that such is no law at all. We have no obligation to obey such laws. If the government persists, then the recourse is to overthrow the government. Such is the moral and right thing to do, as articulated in our Declaration of Independence.
Jeff Silberman wrote: “Man-made law will always trump natural law because there is no recourse otherwise.”
Let me relay a real life example where we have recourse even when we are not overthrowing the government. A church in Tampa was conducting an Easter event where they dress up in costumes and have an actor play Jesus dragging a cross down the street. I was across the street with a friend when someone from the group invited me to join them in their procession down the street. Since I was already there, we agreed to walk with them. When the event had just finished, a police officer asked the pastor for his permit for the event. The pastor produced the permit. At that point, I began to speak to the crowd of people gathered there. We previously had been asking the city to change their city ordinance requiring permits from citizens who want to pass out literature or speak on the pedestrian mall. I spoke about how the permit requirement placed too much burden upon citizens because they required a 10 day advance application and many of the poor simply will not go through the permitting process even if they were able to give 10 day advance notice. At that point, one of the people in the group told the police officer that I was not with them. So the police officer came up to me and ordered me to be silent. He said that the permit did not cover my speaking. I explained that the group invited me to be with them, but beside that, I had a Constitutionally protected right to speak regardless of any permit requirements. The officer again ordered me to stop. I asked him if he was going to arrest me if I did not stop. He had no reply. So I informed him that his order was unlawful and that I would not obey it. The U.S. Constitution recognized by inalienable right to speak, so he should just leave me alone. If he took any action against my speaking, it would be an unlawful action. I walked a few feet away and again addressed the crowd gathered there about the onerous city ordinance that required permits. At that point the officer ordered another officer to arrest me. So they put me in handcuffs, into a police cruiser, drove me away and charged me with a crime.
Now all that is a little inconvenient, but in my day in court, a Judge agreed with me and dismissed the case. He declared the city ordinance unconstitutional and the city repealed the ordinance later that week. We basically achieved what we were after all along and gained a little freedom for the citizens of Tampa. This was accomplished by understanding natural law and how positive law cannot take away my inalienable rights.
You think there is no recourse, but in America, there is.
Olly:
You believe this: “You have rights antecedent to all earthly governments: rights that cannot be repealed or restrained by human laws; rights derived from the great legislator of the universe.” – John Adams
I believe this: “Freedom is the natural ability of everyone to do what he likes unless it is prohibited by law or force.” -Justinian
Jeff Silberman wrote: “I believe this: “Freedom is the natural ability of everyone to do what he likes unless it is prohibited by law or force.” -Justinian”
LOL. According to this, freedom is whatever government allows you to do. This statement says nothing. It is a self-serving edict from an emperor. According to this quote, everybody is free. Whether you are a person with no government at all or a prisoner of the government sitting in solitary confinement. Everybody has freedom according to this definition.
Nick, that’s my point. Other countries around them have lots of things. Supposedly they had TV’s buried and dug up when we freed them. So they see what our lives are like in movies, etc. Iraq has oil, but the leaders don’t improve living with the money. They have airports, so they know people can fly. There were many companies that agreed to try business there (McD’s), but it never became safe enough.
There are so many refugees. They will probably spend their lives in camps. Is the UN organizing education to help them leave? What do adults do all day?
Where is our media? Why aren’t they showing us these camps?
Sandi, The Mideast has rampant abject poverty. That has as much to do w/ terror emanating from there as does religion. The US produces more patents in one day than the entire Mideast does in a decade[Thomas Friedman]. They are poor, uneducated, and very easily manipulated. Millions of young men w/ nothing to lose. It’s always one of the 7 Deadly Sins. Envy being the big one in this instance.
Nick, I don’t think there are many happy Muslims. There were a lot of unhappy Christians during The Inquisition.
When I first saw pictures during the first Gulf War, I was shocked at how the people lived, especially Afghanistan. The discovery and invention of so many things we use every day versus living so far in the past. I truly looked forward to how Iraq’s way of living would improve. Now watching the horror of ISIS and the sadness of having to leave their homes. Can it ever be different?
Sandi, It’s a parody, a joke. But, I truly would love for all refugees to move to Europe and not here. I think they’ll be much happier in Europe.
Olly, I worked in @ Leavenworth, and in a KC halfway house w/ many recently released inmates from Leavenworth and other Fed prisons. Here’s an interesting story. There was a very institutionalized inmate named Leslie Wiebe. He was a forger, alcoholic, homosexual. A very docile man who spent a good portion of his adult life in the joint. When these guys were in the halfway house they were still in Federal custody. Not returning to the halfway house after work or a weekend furlough was the same as escape from Leavenworth, another 5-10 years. I was a Vista volunteer[liberal in my youth] and helped Leslie get a job. He was going to AA, staying sober, and about to be released onto parole. A week prior to his release he didn’t return after work. So, he was declared an escapee. A few weeks later, I’m riding the bus to work and see Les walking into a downtown diner. I hustle back to the office. I call the US Marshall’s office but they said they couldn’t handle it. There was a high profile Black Muslim trial going on @ the US Courthouse and they had all hands on deck. So, myself and another staff member went down to the diner. Leslie smiled and chatted as I cuffed him. As a sidebar, the director of the halfway house put me in for a commendation and reward. You should have seen the look on the very liberal Vista regional director as she had her photo taken w/ a Vista getting money for catching an escaped Federal prisoner! Priceless.
A year or so later I’m working @ Leavenworth as a hack. Leslie greeted me like a long lost friend. He was offering to do favors, did a little snitching, he was SO HAPPY to be back in the joint. Your example of folks who don’t get it is perfect, and I understand the reference in real life, and from the great flick, Shawshank.
Jeff,
Do you need JT to debunk this because you cannot? Come on; explain why you believe Locke is wrong? Please explain what you are so much more enlightened than the great philosophers of the Age of Reason. Please explain how the great 18th century political theorists could be so wrong about human nature, the divine right of kings, inalienable rights and the fundamental purpose for government. Because, NEVER, in the history of EVER has it been “sufficient that the government should not interfere.”
Sandi, some folks don’t like Wisconsin either, they can’t seem to say one good thing about it. I can’t imagine living somewhere I hate so much. Maybe that’s why some folks are so troubled and seem so unhappy, and so quick to create dissension. You are SO right! LOL.
We are all star dust. That fact, my friend, is more ineffable than any notion of a mythical creator. If only JT would weigh in and debunk this nonsense of inalienable natural rights. You do not need to rely upon this myth of inalienable rights in order to justify your worldview. Is it not sufficient that the government should not interfere with you unless there is a justifiable reason even in the absence of “inalienable rights”?
Jeff Silberman wrote: “Is it not sufficient that the government should not interfere with you unless there is a justifiable reason even in the absence of “inalienable rights”?”
No, that is not sufficient.
The concept of inalienable rights provides for a theoretical framework for our judiciary. Our federal government recognizes that States may regulate behavior when they have a good reason. But when their regulation concerns an inalienable right, such as the fundamental right to speak in public, then the U.S. Supreme Court requires what is called strict scrutiny review. The government must show a compelling governmental interest and narrowly tailor the law to achieve that interest.
For example, if I want to speak on a sidewalk to people walking by about the mistakes our government is making and the need to vote tomorrow for a certain candidate, the local government cannot require me to get a permit. I have a fundamental natural right to engage in free speech. On the other hand, if someone wants to sell cigars on the street corner, the city could require him to get a permit.
Without the recognition of inalienable rights, local governments regularly overstep their authority in how they regulate the activity of people.
Nick Spinelli, “Republicans kill poor children”? I’d like some references to back that up because it is insane.
I don’t know who said Europe took in more Muslims than we did. And it had something to do with the wars fought there. Muslims had immigrated to Britain long before the wars. We have millions of Muslims who have come here.
For other European countries Muslims were a cheap labor force. Now everyone has too many and they are bleeding the coffers.
As to the various bad things, murder rate, etc. Has it been broken down by type of murder? (domestic, gang). Our population alone brings higher numbers. Our physical size versus any Europen country is huge.
Nick Spinelli, I read so many of your comments with anger and hatred toward this country. We live in a different country based on your descriptions. This is the only country I want as home.
“Had the framers known then what we know now about evolution and cosmology, I dare say that they would not have believed that a supernatural Creator was necessary to explain existence.”
I dare say they would not believe the utter ignorance of the 21st century citizen to be convinced they no longer have inalienable rights because someone told them they weren’t created by God.
The fact is you were created by something; you exist. And because you exist, you have certain inalienable rights that are necessary to perpetuate that existence. You have those rights independent of anyone or anything. So much for needing a supernatural Creator.
I’ll wager you any amount of money that JT does not believe in Natural Law. Had the framers known then what we know now about evolution and cosmology, I dare say that they would not have believed that a supernatural Creator was necessary to explain existence.
“Well that was easy” 😀
Nick,
You’re a movie guy so I’m sure you’ve seen The Shawshank Redemption. Trying to discuss natural rights and the purpose for government with many in this blog reminds me of the scene where Red is talking about Brook’s hanging himself. He is talking about how if one lives in prison long enough that they become institutionalized. They are absolutely convinced they are better off inside the prison where they have the relative ‘security’ one gets being dependent on the State.
Freedom, liberty, natural rights are so outside their realm of understanding that the mere mention of them strikes a level of anxiety in them that comes out in their response. This institutionalized behavior would clearly explain why there is so much animosity against limited government advocates. How else do you explain why anyone would reject the idea of natural rights when all evidence points to its legitimacy? I picture those limited government advocates standing outside a prison with the gates open, imploring the prisoners to come out, but they shut the gate instead.
Natural law, God, and the tooth fairy may well serve a beneficial purpose but that is no reason to believe in fantasy.
JAG is the official spokesperson for moving to Europe. All refugees, all those in the US who are malcontents, MOVE TO EUROPE. The US is evil. Keep up the great work, JAG. Remember to bill me.