What makes a law unjust

Discussion in 'Faith, Devotion & Formation' started by bwallac2335, Feb 17, 2021.

  1. bwallac2335

    bwallac2335 Well-Known Member

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    This was something that got me thinking yesterday. What makes a law unjust and not needed to be followed. A great example of this is raw milk. In some states you can produce it and sale it and others you can't. Now for the record I don't drink raw milk but I think this is overstepping the governments bounds and is way to intrusive.
     
  2. AnglicanAgnostic

    AnglicanAgnostic Active Member

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    What makes a law unjust in my opinion is just a matter of opinion. You might think it is unjust to ban raw milk, I might think it is just because I won't have to pay taxes towards possible medical bills. Banning homosexuality- well surely that is just a matter of opinion. In 1549 it may have seemed just to forbid people and especially RCs from possessing; scrales, portuyes, cowchers and Rexlions favourite-pies. But by 1926 opinion was probably that it wasn't just to ban them, so they were legalised. Of course you may disagree and think it was unjust to legalise them!
     
  3. Botolph

    Botolph Well-Known Member

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    One of the primary concerns when it comes to Just Legislation, is the matter of fairness and equity.

    What constitutes justice in a given situation can of course be complex.

    In general it is agreed that legislation should not be retrospective. So if you passed a law that said everyone had to wear a mask from the 1st of last month, and then proceeded to fine everyone who had not warn a mask last month that would be unjust. It would also be unjust to enforce that law on people who for some medical reason could not wear a mask.

    Legislation is unlikely to be just if it affects things over which a person has no control. A law that made it illegal to be Australian, American, Chinese, Male, Female . . . would not be just as these are things which are given. When it comes to Homosexuality - the contemporary understanding is that this is a descriptor of a persons innate sexual preference, and indeed something over which they have no control, so a aw to make it illegal would also be unjust.

    Raw Milk is an interesting example. In Australia it is illegal to sell un-pasteurised milk for human consumption. We lived for a while next door to a dairy farm, and we used to buy about 5 litres a week of milk for the 'pets' on our farm (people were surprised that one little kitten drank so much!). I believe that the arguments have to do with public health concerns and the limited shelf life of raw milk. In general I understand that the protection of citizens from unnecessary health risks might be seen as a public good. In the US there seems a greater concern with individual rights on all manner of things. In a sense from a consumer point of view such a ban would be a derivation of liberty, however that may not be enough to make it unjust. There may be a question of justice if such a ban came in overnight without sufficient notice for producers to re-equip, or re-negotiate contracts etc. The justice issue may be around large milk companies dictating unfair prices to primary producers, pushing the little guys to the wall and then buying the farms for a discount. Whilst there are others who would argue that this is just the operation of a free market.

    The balance between individual liberty and common good, has been very much in the news with Covid19, and the balance has outcomes. In Australia we have erred on the side of common good, however it leaves many of us perplexed as to what makes for justice. The tennis players in the Australian Open were designated as 'essential workers' this week to exempt them from a State wide lockdown imposed as a result of a hotel quarantine breach which resulted in a number of cases.
     
  4. bwallac2335

    bwallac2335 Well-Known Member

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    My question is really when is it ok to not obey a law and how to tell if it is unjust? I actually think it would be ok to buy and sell raw milk as it is an unjust law.
     
  5. Botolph

    Botolph Well-Known Member

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    The question you would have to determine first is why the law is unjust? The infringement of some of our personal liberties is not necessarily unjust and may simply reflect the things we surrender for the benefit of living in the community.
     
  6. bwallac2335

    bwallac2335 Well-Known Member

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    That is true but we have to first determine what is the proper nature of government. When it comes to personal things like the foods we eat I see that as out of bounds of a the proper nature/role of government.
     
  7. Botolph

    Botolph Well-Known Member

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    Of course that is correct. Part of this is bound up in what may loosely be described as the social contract. I know that there are some real differences between the USA and Australia. Many of the US early European settlers were escaping various forms of tyranny in Europe. Many of the early European settlers in Australia were incarcerated here as a result of often petty crimes committed in England. I think Australians are less resistant to Government Intervention, that I observe in the US, however we are fairly robust in asking for some pretty good reasons.

    In short, I think, beyond some basics, this is a difficult area for absolutes. The Edict of Milan 314ad issued jointly by Constantine and Licinius provided a freedom of religious position (religious pluralism) which is echoed in the Constitutions and both the US and Australia, and indeed in the UN Charter of Human Rights. That freedom is not reflected in every nation, and one notes that those nations often have other questions in relation to human rights.

    Do you believe it is within the province of government to outlaw slavery? What would be your view of a government that permitted slavery? Does that not infringe on a persons right to buy and sell slaves? What constitutes justice for a slave?
     
  8. Rexlion

    Rexlion Well-Known Member

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    Just or unjust can be looked at in terms of morality, or in terms of societal interests. Two very different standards.

    If we look simply at right versus wrong, then we should look to the ultimate standard of morality, the word of God, to decide what is just or unjust. But we live in societies that don't use that standard. This makes things muddy and difficult.

    Secondarily, in the US we have our Constitution which sets some standards, but mainly it acts as a restraint upon government to keep it from infringing on the rights that (we believe) God bestows upon all free men; this, of course, brings us back to the Bible once again.
     
    Last edited: Feb 17, 2021
  9. Botolph

    Botolph Well-Known Member

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    Justice and Righteousness are indeed the same but different, as anyone who has struggled with the Epistle to the Romans would understand.

    Jizyah (the poll tax pain by Non-Muslims in a Muslim state), is something that few of us would ever want to pay, however the question remains is such a law Just or Unjust. Clearly it infringes on Non-Muslim citizens yet of itself it does not deprive people of the freedom to be Christian, but there is a price to pay.

    Banning Muslim Immigration, was certainly raised by some as a good way to go, and yet others decried the idea as unjust and indefensible in terms of the constitution. I am not sure what the US Constitution says about such ideas.
     
  10. Rexlion

    Rexlion Well-Known Member

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    The Constitution does not express a "right to immigrate into the US." The executive and legislative branches each have some powers over this. The question of how many people to allow to immigrate, and from where, is not an issue of morality. It goes to public safety and public policy, with non-discrimination requirements playing a role; the latter can be overridden by the former, though, such as (for example) preventing Japanese from entering the US during WWII.

    As for paying Jizyah when one is in a Muslim country, we can find guidance in the Bible. "Give to Caesar what is Caesar's" implies that the Muslim country resident should pay the local taxes, even if they are levied inequitably.
     
  11. Rexlion

    Rexlion Well-Known Member

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    Here is a (rather lengthy) example of how our law was formulated, with its foundation based upon morality as found in the Scriptures:

    The US legal system had its roots in English "common law," and a great many of the principles in common law rested upon the bedrock of Scriptural principles. The two most crucial legal documents that form the foundation of the US' legal system are the Declaration of Independence and the Constitution. A portion of the Declaration says this:
    ...We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness....​

    Does the Bible teach that God gave humans a right to life, in the sense that their life may not justly be taken from them by another human? Yes, of course. Look at Cain's murder of Abel.

    What about liberty? Is it just to restrain someone from leaving without a valid reason, to lock them up for no excuse? Was it right for Pharaoh to enslave the Israelites? As a general proposition (and without going into the morass of exceptions and what-ifs), it is morally unjust to prevent a person from going where they wish to go and doing the (moral and legal) things they wish to do. And who can doubt the moral unjustness of John the Baptist's imprisonment by Herod, let alone his death at the behest of a woman's whim?

    Let's look at a matter that is closely related to the preservation of life and liberty and which is derived from those rights. What about the right to keep and bear arms? The US Constitution has been amended several times, and one of those amendments states:
    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.​

    Does this right have its source in Scripture? Let's look at what Jesus told the disciples in Luke 22:36.
    He said to them, “But now let the one who has a moneybag take it, and likewise a knapsack. And let the one who has no sword sell his cloak and buy one.
    Here Jesus validates two interconnected principles. Keep in mind that the sword in Jesus' day was equivalent in significance to today's firearm.
    1. Jesus confirms that it is appropriate and morally right to defend oneself.
    2. Jesus confirms that it is appropriate and morally right to carry a weapon that can be used for self-defense.
    We can also see in the O.T. that the Israelites had the right to defend themselves (both corporately and individually). When the Philistines threatened to attack and kill, David was justified in killing Goliath with the primitive equivalent of a handgun (a slingshot), and the Israelis were justified in chasing after and killing Philistines with swords, both to deter them from their murderous designs and to prevent being murdered themselves. See also Exodus 22:2.

    The 2nd. Amendment to the Constitution takes this Biblical concept one step further in averring that:
    • the nation needs to be able to protect itself,
    • protection of the nation and protection of its people are intertwined, and
    • the people of the nation may, and should, be suitably armed for the defense of the nation and its people.
    The 2nd. Amendment refers most directly to self-defense in a corporate sense, but individual self-defense is implied. If the nation is attacked, most certainly its individual citizens will be in mortal peril. The purpose is to save the individuals, not just to save 'the state' per se; i.e., defense is not for preserving the government for its own sake. Defense is for the sake of its citizens, because (in the case of the USA) the government is comprised of the people and it exists to serve the people. Armed citizens can exercise their right to defend themselves, both individually and corporately, so as to prevent (when appropriate) loss of liberty or loss of life.

    Therefore, it would be both morally and legally wrong for most US citizens to be forbidden by our government to possess firearms. Although other nations do not have the same legal protection under their laws as people of the USA have under ours, the moral principles of (1) the right to self-defense, and (2) the right to carry an appropriate weapon for the purpose of self-defense, are both averred by Jesus Christ.
     
    Last edited: Feb 17, 2021
  12. Botolph

    Botolph Well-Known Member

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    Thank you for the ameriocentric view of these matters.

    Most Non-US citizens suspect that the right to gun ownership at a rate of 1.2 guns per person is perhaps not protect their citizens but leaving them exposed to gun violence. But I know better than to suggest there is anything wrong in the USA. I must say, I prefer the 1st Amendment.
     
  13. bwallac2335

    bwallac2335 Well-Known Member

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    I think we would have to go even
    It is well within the purview of government to outlaw slavery as it deprives someone of their God given rights to life and liberty. You can't have either if you are owned by someone else. Any government that allowed slavery is wrong in any way you look at it as it is allowing the state sanctioned oppression of people.

    I might be coming at it from a small government American view. I see no role in government to regulate anything that takes place on ones on property and within one's on house or family for the most part unless an intentional harm is being done to someone.
     
  14. Stalwart

    Stalwart Well-Known Member Anglican

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    Classically, the answer would go like this. The world has natural justice: An eagle kills the mouse. A sheep eats the grass, and poops out nutrients which then make the plant life flourish. A lion cub must adhere to his mother, else he will die. But when he grows up, he can and should tear into the body of an antelope, and if his mouth is covered in blood then so much the better for his ensured survival.

    This is natural justice. There is nothing wrong or immoral about killing, and death. What is in the nature of the animal to do, is automatically just, because justice is defined as natural equity.

    Now, a version of this also exists for mankind. It's almost the same, because we are a part of the animal kingdom, but because of free will there are a few extra stipulations which apply to us.

    So the natural justice as applied within mankind works something like this: an eye for an eye. A tooth for a tooth. Don't do to others what you wouldn't have done unto yourself. All the animal stuff applies to us also: we should cleave unto our parents, lest we die; but when we grow up, we can and should hunt those animals which are our prey.

    Notice that none of this has to do with Christianity. This is just the way the world works. This is what's been called the Natural Law. Christianity adds grace and the supernatural to this, but the basic natural structure remains intact (the old proverb is, "grace builds upon nature").

    Now, a law is just, when it corresponds to this Natural Law, or natural justice. A law which helps us to have children is just, and right. A law which prohibits us from having children is unjust, and can be disregarded. A law which helps us to defend our family and property is just and right. A law which prohibits us, is unjust and can be disregarded.

    This teaching of natural law is at least 2,300 years old. You first find it in the ancient philosophers such as Cicero (a powerful exponent of this), then through late antiquity you find it in the Church Fathers. The middle ages, the Reformation and the early Modern period expand upon this.

    The first time that somebody tried to sever the connection between Law and natural justice was in the 1850s, with the Positivist school of jurisprudence, which taught that laws need not have any connection with natural justice. Today we live in the shadow of the Positivist school of jurisprudence. Laws are made with a complete indifference to nature or natural justice.
     
    Thomas Didymus and bwallac2335 like this.
  15. Rexlion

    Rexlion Well-Known Member

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    To tell if a law is just or unjust, it helps to understand the philosophy of laws. How laws come about and what they're based upon is relevant to the issue. That's why I explained the way the US Constitution and the 2nd Amendment came to be; we have a stated basis of 'rights given by God to men.' I don't really know if the founding documents of any other countries besides the USA state a similar foundation.

    Not all governments have the same basis for their formulation of laws, however (and indeed, in more recent times a growing number of laws in the US are not made on this basis of God-given rights, either). Governments often make laws based upon a perceived 'social contract,' or upon a rationale that 'the good (or rights) of the whole outweigh the good (or rights) of the individual. And some governments make laws primarily for the preservation and benefit of the governing person or persons.

    Looking at the issue of firearm possession that I introduced earlier for illustration's sake, some governments view themselves as 'wise and good protectors' of the people and will pass laws that it (in its wisdom) deem prudent to protect citizens from one another... or even from themselves. The concept here is that the people are not able to be trusted with the proper exercise of an individual right, that some of them will harm some others, and therefore the individual may legitimately be deprived of some measure of liberty in order to protect society. The rationale goes something like this: 'guns can be misused, guns are on occasion being misused, and when misused the consequences can be deadly, therefore to fulfill our duty to protect the citizens we decree that they cannot be allowed to have guns.' On the edge-side of the coin, there are some governments that make laws for self-preservation, and their rationale (though they often state other reasons to pacify the people) goes like this: 'an armed populace could rise up and depose us from leadership, therefore we cannot allow them to have guns.'

    Now, where does the question of unpasteurized milk fit in? It's pretty easy to see that the primary reason given is the safety of the citizens. As large cities grew (and pasteurization was not yet practiced), milk had to be transported by existing (slow!) methods from farm to city. At some point a large enough group of people became ill from bacterial growths in raw milk that it seemed needful to require pasteurization for the good of society as a whole. Unfortunately, a blanket prohibition of raw milk is overly broad and more restrictive than absolutely necessary even to protect the good of the populace, for there are instances in which the sale of raw milk is reasonably safe (such as a farmer's neighbor buying enough each day for the family table), and in addition to this an individual may be legitmately entitled to 'assume the risk' for himself.

    There is also another sub-factor that comes into play in lawmaking: special interest groups. One might also observe that many laws are passed (in the US at least) as a result of lobbying efforts. People or companies with deep pockets spend time and money advocating for certain positions, some of which coincide with the best interests of society and some of which do not. Rarely is such advocacy founded upon the God-given rights of individuals, but on occasion it is (such is the case with pro-life lobbyists). Going back to the raw milk issue, the dairy processing industry has long opposed (via lobbying Congress) a modification of the blanket prohibition because they would lose revenue.

    What can we draw from all this? Hopefully we can see that not all laws are based in morality. For those that are not, one might argue that a little 'civil disobedience' may be justified in some instances, particularly when the law's overbreadth creates a situation of unfairness to an individual or group and/or where disregarding the law has little or no negative ramifications upon the citizenry, or where the positives outweigh the negatives.
     
    Last edited: Feb 18, 2021
  16. Botolph

    Botolph Well-Known Member

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    Whilst I concur with a general repulsion at the idea of slavery, that objection is generally modern. Elizabeth I did not like the idea of slavery, and yet was happy to profit from the trade in transporting slaves to the Americas, and transport the produce of the Americas to England. England, the US and even Australia all have the scars of slavery in our not to distant past.

    The current practice of slavery is alarming, and the practice is far from over. http://www.endslaverynow.org/learn/...e are an estimated 21,is slavery at its core.

    I am happy with the idea of small government, however it does require some harm management. This of course is the issue with the Raw Mil question.

    The Australia New Zealand Food Standards Code (the Code) requires that milk is pasteurised or equivalently processed to eliminate pathogenic bacteria that may be present. There is an exemption to this processing requirement that allows for state and territory legislation to regulate and permit the sale of raw drinking milk. No States or Territories currently have legislated to allow for raw cow milk to be sold. However, raw goat milk is permitted for sale in four States: Queensland, New South Wales, South Australia and Western Australia. States and territories will continue to have scope to allow for the sale of unpasteurised milk.​

    Of course since then the idea of HPP Raw Milk has arisen, where the Raw Milk is subjected to High Pressure Processing, as against Pasteurisation or Homogenisation. HPP is of course significantly more expensive, and also relies on a much greater investment in herd management. On a cost comparison HPP Milk is likely to be 7.5 times the price. Of course the other issue is that it is quite legal to drink Raw Milk in Australia, so long as you own the cow. It is a little less convenient, but there you go.

    Modelling by Food Standards Australia New Zealand predicted that if raw milk were sold in retail outlets, every 100,000 serves of 540 mL to a child would produce “97 cases of EHEC [an E. coli- related illness], 153 cases of salmonellosis and up to 170 cases of listeriosis”.​

    Rather than being a true justice issue, I suspect this is more about the trade off between an individuals liberty, and the common good.
     
  17. Botolph

    Botolph Well-Known Member

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    Gun Deaths per 100,000 people
    United States: 12.21
    Mexico: 11.55
    Canada: 1.94
    United Kingdom: 0.20
    Australia: 0.88
    New Zealand: 1.24
    Switzerland: 2.24
    Jamaica: 35.22
    Estwatini: 37.416
    Source: https://en.wikipedia.org/wiki/List_of_countries_by_firearm-related_death_rate

    The eight countries with higher per capita death rates in the world are all in the Americas and the Caribbean, with the exception of Eswatini (formerly Swaziland in Southern Africa).

    It would seem to a casual observer that the passion US citizens have for the 2nd Amendment is paid for in the cost of human life. Even if I accepted all you say about the Natural Justice of the cause, and even the Biblical Justification of the matter, we are still left to look at the a matter of the sheer waste of human life. This is why we don't get it.

    The benefits of living in a society are offset by what I have to give up in order to do so. We share the cost of defence, care of the poor, education and governance, and we reap the benefits that the society has to offer for being part of it, including Dignity Food and Shelter, Safety and Security, Purpose and Identity (Tribe). This is all part of the social contract. I am not going to tell the US how to run its affairs, way beyond my purview, and I am not a stakeholder. I am simply trying to explain why some of us don't get it.
     
  18. bwallac2335

    bwallac2335 Well-Known Member

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    I am happy with the idea of small government, however it does require some harm management. This of course is the issue with the Raw Mil question.

    The Australia New Zealand Food Standards Code (the Code) requires that milk is pasteurised or equivalently processed to eliminate pathogenic bacteria that may be present. There is an exemption to this processing requirement that allows for state and territory legislation to regulate and permit the sale of raw drinking milk. No States or Territories currently have legislated to allow for raw cow milk to be sold. However, raw goat milk is permitted for sale in four States: Queensland, New South Wales, South Australia and Western Australia. States and territories will continue to have scope to allow for the sale of unpasteurised milk...........

    It is not the governments job to manage harm reduction like this as it just picks winners and losers. We can buy cigarettes, horribly processed food, and other things that kill us but they outlaw raw milk which will kill far less people. The government should set standards for pathogens and then let all food that meets it be sold kinda like California does with milk. I can't believe a small government guy just referenced California.
     
  19. Botolph

    Botolph Well-Known Member

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    Valid argument of course. We could argue given the revenue raised by the sale of tobacco that the Government is complicit in killing off some of its citizens.

    We are really not that far from agreement. I have drunk a fair bit of Raw Milk along the way, and my cast iron gut has been resistant to date to especially bad outcomes. I think in the case of Australia we had a tradition of providing milk to all children in school to aid their nutrition and growth. I think the bans originated from those times, though I think the practice has now stopped.
     
  20. bwallac2335

    bwallac2335 Well-Known Member

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    I don't drink raw milk so this is really not a thing for me but I do have a friend getting some sheep and I will probably sample the goods.