At the Intersection of Faith and Culture

At the Intersection of Faith and Culture

Eric Garner and the Natural Law: What To Do When a Law is Unjust?

posted by Jack Kerwick

Eric Garner, many libertarians seem to think, was innocent as far as the natural law is concerned.

“Natural law” is an ethical tradition with an illustrious pedigree stretching back millennia.  From this perspective, natural law is a transcendent moral order that provides the standard of justice for “positive law,” i.e. human legislation: If a human law contradicts the natural law, it is unjust.

The law forbidding the sale of loose cigarettes that Garner violated (repeatedly) is unjust, for it violated Garner’s “natural right to dispose of his own property (‘loosies’) at will,” as one libertarian writer put it.

Let’s assume for the moment that the above argument is correct and that the law forbidding the sale of untaxed cigarettes violates the natural law.  So what?  One of two implications follows from this assumption:  (1) Garner acted rightly, for there is no moral duty to comply with an unjust law; or (2) Garner acted wrongly in breaking the law, for even though it is unjust, there is a moral duty to comply with, or at least not resist, laws enacted by recognized authorities (like legislators).

Neither line of reasoning bodes well for Garner’s natural law supporters.

The problem with the argument in (2) should be self-evident: If Garner had a duty to refrain from breaking the law, though it was unjust, then he acted not only illegally, but immorally. In resisting arrest, then, he was in the wrong.  Why, though, would a libertarian and Garner supporter possibly want to make this argument, when it is so clearly harmful to their case?  The injustice of the law forbidding the sale of untaxed cigarettes is a reason to abolish the law.  It is irrelevant to the Garner case.

The argument in (1), however, is also flawed in that the conclusion—Garner acted justly—does not follow from the premise—there is no moral or natural duty to comply with an unjust law.  Few and far between are those natural law thinkers who would contend otherwise, and the number of history’s great natural law theorists who would contend otherwise is approximately zero.

Socrates, for example, refused to disobey even the law under which he was unjustly convicted and sentenced to death. He implicitly contracted to abide by a system of law from which he reaped a lifetime’s worth of benefits, Socrates argued.  It would be immoral to disobey this law, just because he now is harmed by it.

A good person and citizen, he told his friend, must “do what is his city and country order him” to do or else strive to “change their view of what is just [.]”

In his magisterial, Commentaries on the Laws of England, William Blackstone writes that “in relation to those laws which…forbid only such things as are not mala in se (wrong in themselves), but mala prohibita (crimes, because forbidden)”—like peddling untaxed “loosies,” say—our moral obligation is to either comply with the law or, “in case of our breach of those laws,” submit to the penalty. Whichever course of action a person chooses, “his conscience will be clear [.]”

Blackstone further notes that if everyone went about breaking those laws that they disliked—“if every such law were [viewed as] a snare for the conscience of the subject”—then “the multitude of penal laws in a state would not only be looked upon as impolitic, but would also be [seen as] a very wicked thing [.]”

He further adds that “disobedience to the law” is “an offence against conscience” only if it “involves…any degree of public mischief or private injury [.]”

Thomas Aquinas, a “rock star” of the medieval era and among the greatest of Western philosophers generally, said is that an unjust law “is not a law, absolutely speaking, but rather a perversion of law” (italics added) [.]  However, a perversion of law,  even when it emanates from a tyrant, still contains “something in the nature of a law,” for “it is an ordinance made by a superior to his subjects, and aims at being obeyed by them [.]”

An unjust law “has the nature, not of law, but of violence,” but it nevertheless “retains some appearance of law” in “being framed by one who is in power [.]”  Thus, even an unjust law “is derived from the eternal law; for all power is from the Lord God” (italics added) [.]

To be clear, natural lawyers have always insisted that there are unjust laws that demand disobedience.  But there are two things to bear in mind here:

First, the law in question, like a law requiring murder, must be wildly offensive to conscience.

Second, the disobedience should be open and conducted in a manner that is consistent with respect for law as a whole.  This way, the disobedience distinguishes the disobedient from cowardly criminals while drawing the public to the injustice of the specific law.

The early Christian martyrs, Ghandi, Martin Luther King, Jr. and the “civil rights” activists of the 50’s and 60’s are among the scores of believers in natural law from throughout history who civilly disobeyed unjust laws.

Eric Garner is not to be included in their number—or even mentioned in the same breath.

 

 

More on the Eric Garner Grand Jury Decision

posted by Jack Kerwick

In this column, I recently argued in favor of a grand jury’s refusal to indict Officer Dan Pantaleo for the death of Eric Garner.  To my dismay (and, frankly, shock), a great many “conservatives” and “libertarians,” I’ve had the great misfortune to discover, disagree vehemently with the grand juror’s decision.  Some have gone so far as to describe Garner’s death as murder.

Bear in mind, the critics’ knowledge of this case extends no further than a 15 second or so video of the fatal arrest and the fact that Garner was illegally selling cigarettes.  That’s it.  It is coupled by their belief—one that I share, by the way—that this offense of Garner’s should not be a criminal offense at all.  Thus, the police, so goes the reasoning, never should’ve placed him under arrest in the first place

The police, though, are not authorized to be selective with respect to the laws that they enforce: Officers of the law are obligated to enforce the laws—whether they personally believe that the laws are just or unjust, good or bad.

New information has surfaced since my last article on this subject that sharpens that much more the contrast between the critics’ state of knowledge regarding this whole situation with that of the grand jury.

For months, twenty-three strangers, black, white, and Hispanic, poured over 60 items of evidence.  These included four videos—i.e. significantly more footage than that on which the pontificators in the media and elsewhere have been feeding; medical records; autopsy photographs; photos from the scene of the alleged crime; and information on NYPD policies, procedures, and officer training.

Also among the evidence was testimony on the part of 50 witnesses.  No fewer than 22 of these witnesses were civilians. The remainder consists of police officers, EMTs, and doctors.

The grand jury also received instruction in the “relevant principles of law” concerning an officer’s right to use force.

Officer Pantaleo explained that he did not apply a “chokehold” to Garner.  Rather, he applied a move that he learned in the police academy, a move designed to “tip the person [being arrested or restrained] so that they lose their balance and go to the ground.”  Though he heard Garner say that he couldn’t breathe, Pantaleo testified that given the former’s ability to speak, he didn’t think that that was actually the case.  Nevertheless, he immediately released him and called the EMTs.

Pantaleo also added that he was fully aware that he was being videoed—but he didn’t mind.  And he didn’t mind because he “knew” that he wasn’t “committing” any “misconduct.”

The grand jurors were in a position to evaluate Pantaleo’s account.  They found that it was truthful.

The critics don’t like the outcome.  But they have no argument.  And how could they?  To claim that the activity for which Garner was initially confronted by police never should have been a crime is wholly irrelevant to whether Officer Pantaleo acted lawfully or not in using force to bring Garner down, and even less relevant to the question of whether Pantaleo murdered Garner.

To argue—not emote, but argue—that the grand jury made the wrong decision, the aggrieved must challenge both the evidence that the jurors’ drew upon for their conclusion, as well as the reasoning that lead them from the one to the other.

As of yet, no one, as far as I’m aware, has attempted either course.

 

The “Eric Garner” Case: Truth versus Ideology

posted by Jack Kerwick

From the rough that is contemporary America, the grand jury that just decided that there were no grounds on which to indict Officer Daniel Pantaleo for the death of Eric Garner is the second diamond to be retrieved.  The first is the grand jury that refused to indict Officer Darren Wilson for the death of Michael Brown.

Reactions have been predictable.  The misnamed “protesters” are in reality barbarians for whom such hallmarks of civilization as the rule of law are obstacles to consolidating their power over the rest of us, barbarians, mind you, who block traffic when they aren’t sending other Americans’ dreams up in smoke along with their businesses and livelihoods.

Unsurprisingly, the usual suspects in the leftist media have been laboring tirelessly to express their solidarity with the vandals.

More disappointingly, so too have those who should know better, namely those who are often seen as being on “the right,” both “conservatives” and “libertarians.” Indeed, the emoting and presuming emanating from virtually all quarters has reached epic proportions.

The facts:

(1)Eric Garner was not—was not—killed because he was selling loose cigarettes.  He died because he was resisting arrest. The officers on the scene used such force as they deemed necessary to subdue him.

But, the objectors reply, Garner was only selling cigarettes.  If not for the astronomical taxes that have illegitimately been imposed upon cigarettes, there never would’ve been a black market for the “loosies” that Garner was peddling.  In other words, while Garner was breaking the law, the law in question was “unjust” or “immoral,” for adults should be able to smoke without paying confiscatory tax rates (or something along these lines).

Thus, Garner never should have been confronted by the police.

Just recently I argued in this column that recreational and/or other drug use should be decriminalized, that laws designed to “save people from themselves”—e.g. drug laws—are radically antithetical to liberty:  I am the last person from whom one could expect an argument in support of the laws that made Garner’s “trade” a crime.  That being said, it is a crime, and, by definition, then, Garner was a criminal.  He had been arrested at least 32 times.

The police do not make laws.  Their first duty is to enforce them.  In this case, they were responding to a complaint about Garner, a man who had dozens of arrests already under his belt.  If he felt that he was being hassled or arrested unfairly, then Garner had legal redress via the Civilian Complaint Review Board.  The now retired Bo Dietl, perhaps the most highly decorated police officer and detective in the history of the New York City Police Department, describes the latter as a “well-oiled machine [.]”

The point is that in resisting arrest rather than fighting it later, the 6-foot-3, 350 pound Garner invited a physical confrontation with the arresting officers.

(2)The officers did not kill Garner with a “chokehold.”  Officer Pantaleo placed Garner in a headlock, a move that is neither illegal nor in violation of NYPD protocols.

The aggrieved and their accomplices in the press, the self-righteous, are having none of this.  From the time this incident first occurred to the present day, they insist upon mischaracterizing the police’s action as a “chokehold.”

It was no such thing.

However, as Bo Dietl explains: “To be a chokehold, there must be constant pressure on a person’s neck, compressing his windpipe or cutting off the flow of blood to the carotid artery, rendering him unconscious.” Yet it is “obvious” from the video, as Dietl notes, that “the arresting officer put his arm around Garner’s neck to bring him to the ground [.]”  Upon achieving his objective, Garner can be heard while he is already on the ground claiming that he can’t breathe.  It was then that the officers called for help.

Moreover, Dietl refers to a “top medical examiner” who confided in him that, given Garner’s variety of obesity-related health issues, like heart disease and asthma, it was “very irresponsible” for the Medical Examiner’s Office to declare Garner’s death a “homicide” by “chokehold.”

(3)The grand jury that chose not to indict Officer Pantaleo on any of the charges on which they could’ve indicted him was composed of 23 people.  Nearly two dozen strangers were thrown together for an extended period of time and exposed to mountains of evidence of every conceivable type—including the eye witness testimony of the 22 or so people who witnessed the events in question, the video of the confrontation, Officer Pantaleo’s own testimony, etc.  Only 12 jurors were needed for an indictment to be served.  The prosecutor couldn’t even get that.  These strangers—as well versed in the facts of the case as anyone, and infinitely more so than most of those now criticizing them—concluded that the facts did not warrant an indictment of any sort.

The Daily News reports: “After four months of reviewing the evidence, a majority on the panel concluded [that] there was not enough there to charge Pantaleo with manslaughter, reckless endangerment or criminally negligent homicide.  The 23-member grand jury, sources said, was comprised of 14 whites, with the rest being black or Hispanic.”  

To this, the only objection, as far as I can determine, is that the grand jury is wrong.  From Al Sharpton to Charles Krauthammer to others of a libertarian bent, with one voice this is their cry.

It’s ridiculous.

As even the left-leaning Christian Science Monitor concedes, it is “not difficult” for prosecutors to secure indictments.  Citing the Bureau of Labor Statistics’ 2010 numbers, it reports that prosecutors sought indictments in approximately 162,000 cases. In all but eleven of these, grand jurors failed to deliver.

In a country that was more devoted to individual liberty, perhaps Eric Garner would still be alive.

And if critics of the grand jury decision not to indict Officer Pantaleo were more devoted to truth, as opposed to their own ideological fantasies, perhaps they would recognize that justice was indeed served.    

 

 

 

 

How and Why TNT’s “Dallas” Failed

posted by Jack Kerwick

Word broke last month that Dallas—TNT’s contemporary version of the spectacularly successful 80’s series—has been cancelled after three seasons.  The “Save Dallas” campaign designed to relocate the show to another network bore no fruit.

To long-time fans like yours truly, this news is disappointing—even if not altogether unsurprising.

For starters, though it was off to an impressive start in 2012, it wasn’t before long that this continuation of the iconic show began to suffer a precipitous ratings decline.  Furthermore, TNT must be judged to have done a less than adequate job at merchandising its product, and its split seasons and program scheduling left much to be desired.

But it isn’t just the network’s handling of Dallas (or, for that matter, the death of Larry Hagman) that accounts for its demise.  At least some of the blame is due to substantive and stylistic considerations.

It isn’t that this incarnation of Dallas was without its redeeming qualities: it (almost) never failed to engage the interests of those who cared to watch it.  Yet, at the same time, there is an ecology of elements—no less “finely tuned” than any natural ecological system—that a show like Dallas, invested as it is in preserving continuity between the old and the new, needed to achieve.

It failed to do so.

When Dallas TNT began in 2012, I wrote then that the show’s success depended in no small measure upon the same imaginative exploration of the contrasts—industry and agriculture, the “Big City” and “the land,” love and betrayal, the good and the bad, etc.—in which the original series engaged so masterfully.   I also contended that it must slow down its pace long enough to remind readers that, at the end of the day, Dallas centers in the fortunes and misfortunes, the virtues and vices, the joys and the sufferings, of a family.  Thus, scenes of the Ewings seated around the dinner table, or splashing around in the pool, or gathered for cocktails, were critical.

The so-called reboot largely neglected this counsel.  Whether this was a function of budgetary considerations and the like, is anyone’s guess.  Still, the fact remains that TNT’s continuation of Dallas would have at least felt more like, well, a continuation, had it contained its share of scenes harkening viewers back to its counterpart from nearly a quarter of a century ago, reminding us all of the familial cornerstone of this series.

Dallas TNT had a formidable challenge to meet: Though new, it also, in a real sense, had to remain old.  That is to say, unlike most shows, it was not beginning from scratch.  Just the contrary: Success depended upon the new Dallas assimilating itself to the old.

None of this happened.

While exterior shots of the homestead—“Southfork”—featured prominently enough, the interior was unrecognizable to fans of the original series.  This matters, for in the imagination of fans, the identity of the Ewing family is indissolubly bound with the Ewing home.  In unveiling an interior design to Southfork bearing few if any similarities to that of the original, it’s as if a new actor had been hired to portray not just any old and beloved character, but a star of the show: Southfork is arguably more essential to Dallas than is even JR Ewing.

Then there were what appeared to be some rather dramatic inconsistencies between the storylines of contemporary Dallas and its forerunner.  It isn’t, necessarily, that these conflicts couldn’t be resolved. The problem is that, for the sake of the integrity of the series, to say nothing of respect for viewers, they needed to be resolved.

Take, for instance, Ken Kercheval’s Cliff Barnes, a staple of the original Dallas. In spite of having put to rest his quest to avenge his father against the Ewings several seasons before the original Dallas finished its 14 season-run, and in spite of his having acquired ownership of Ewing Oil in 1991 at the series finale, Cliff is now, decades later, consumed with a quite literally murderous vengeance vis-à-vis all of the Ewings—including his own nephew.  Not only can viewers be forgiven for thinking that Cliff never had the epiphany that marked a decisive turning point for his character in CBS’s Dallas.  The ease with which Cliff seeks the annihilation of the Ewings at all costs—including the cost of lives, even the lives of those, like his adopted son (who we never heard about during the 80’s), his daughter, his nephew, and his unborn grandchildren—leaves viewers thinking either that Cliff’s soul has been taken over by Darth Vader or that something very, very bad has happened between the end of the original series and the present day.

Near the end of the original series, JR and Cliff still despised one another, but this no longer had anything to do with an intergenerational family feud.  As Cliff once told Miss Ellie, he and JR would have been enemies regardless of their surnames.  And, considering both that Cliff had beaten JR in assuming control of his company, and, presumably, JR had spent who knows how long in a virtually catatonic state wasting away in a senior citizens’ facility of a sort, some explanation for this metamorphosis of an original character into the embodiment of evil was necessary.

But it was never forthcoming.

Another problem with the new Dallas was, for lack of a better word, the heavily “Hispanicized” texture that it was made to assume.  The characters, in some way or other, were involved with Mexico and Mexicans with a frequency that left viewers wondering whether this third world country was a suburb of the city of Dallas.  The cowboys and good ol’ boys of the original series had been traded in for Hispanic gangsters and the like.

Again, it isn’t that the introduction of some Hispanic characters should have been off-limits.  However, to this viewer, at any rate, it seemed like a transparently contrived effort to insure that Dallas would be in keeping with the Politically Correct zeitgeist.

Its weaknesses aside, it should be noted that Dallas most certainly was an entertaining show.  I, for one, enjoyed beholding an evil Cliff Barnes.  Moreover, to Cynthia Cidre’s credit, she is virtually a minority of one among contemporary television writers who did not shy away from depicting non-white characters in a villainous light.

Dallas has proven itself to be a resilient series.  Maybe, in another few years, someone else will succeed in resurrecting it.  If so, whomever this person is, he or she should bear in mind that success demands that Dallas recall its roots.

 

 

Previous Posts

Eric Garner and the Natural Law: What To Do When a Law is Unjust?
Eric Garner, many libertarians seem to think, was innocent as far as the natural law is concerned. “Natural law” is an ethical tradition with an illustrious pedigree stretching back millennia.  From this perspective, natural law is a transcendent moral order that provides the standard of jus

posted 8:33:32pm Dec. 14, 2014 | read full post »

More on the Eric Garner Grand Jury Decision
In this column, I recently argued in favor of a grand jury’s refusal to indict Officer Dan Pantaleo for the death of Eric Garner.  To my dismay (and, frankly, shock), a great many “conservatives” and “libertarians,” I’ve had the great misfortune to discover, disagree vehemently with the

posted 7:56:58pm Dec. 09, 2014 | read full post »

The "Eric Garner" Case: Truth versus Ideology
From the rough that is contemporary America, the grand jury that just decided that there were no grounds on which to indict Officer Daniel Pantaleo for the death of Eric Garner is the second diamond to be retrieved.  The first is the grand jury that refused to indict Officer Darren Wilson for the d

posted 10:02:40pm Dec. 04, 2014 | read full post »

How and Why TNT's "Dallas" Failed
Word broke last month that Dallas—TNT’s contemporary version of the spectacularly successful 80’s series—has been cancelled after three seasons.  The “Save Dallas” campaign designed to relocate the show to another network bore no fruit. To long-time fans like yours truly, this news i

posted 12:49:28pm Nov. 29, 2014 | read full post »

Two Things to Think About This Thanksgiving Day
With the exception of the usual suspects on the hard left, most Americans celebrate Thanksgiving Day.  Like Independence Day, Thanksgiving is a quintessential American holiday. Thanksgiving Day is a golden opportunity for celebrants to accomplish a couple of things. First, we should bear in m

posted 12:11:17pm Nov. 27, 2014 | read full post »


Report as Inappropriate

You are reporting this content because it violates the Terms of Service.

All reported content is logged for investigation.