Law, Ideology, and Society

Let’s stipulate some definitions. Let us consider law as formally stated norms that have either been legislatively enacted as in the case of statutes or that have been developed by successive court rulings as in common law. In either case these norms, those which are stated as law, are considered compulsory and therefore enforceable. Human activity as it develops an awareness of its forms behavior abstracts those forms of behavior to reconstitute them in thought as legal, moral, logical-mathematical, psychological, social, scientific, religious, etc., norms, laws, principles, or whatever. But is only some of those norms of human activity that take on a legal character and enforceability.

These forms of human activity, the norms, principles, concepts, moralities, customs, laws, serve to organize the content and specifics of behaviors as it is applied in situations. By abstraction, we can pull out the form of human activity and distinguish it from the content of that activity. Thus to refer to an object as a “cat” entails a meaning that consists of some content or properties we are conceiving in our representation of this physical object, but less obvious is that this representation is also a mental activity that has an organization, a form that of a logical-mathematical classification system. We can abstract this logical-mathematical form and make it an object of thought eventually developing a formalized representation of it.

This distinction between form and content operates at all levels of behavior whether the forms consist of simple repeatable and generalizable schemes of sensory-motor behavior that operate without cognitive awareness or whether forms develop in mental activity to operate at all levels including the highest levels of scientific activities as these are expressed in theoretic frameworks generating explanations of objects. Anything, including the forms of previous activities, can abstracted and made the content of thought by developing more advanced forms that them make the earlier forms or contents richer elements of the content of thought at the higher level.

Thus, the object of thought may consist of objects that are concrete or with development may consist of more abstract content abstracted with from the previous content or the previous form.
When forms do begin to free themselves from concrete notions, these abstractions develop into scientific, ideological, moral, and other kinds of frameworks by comparisons one to another, their reciprocal assimilations, and their increasing integration in larger wholes or frameworks.

As these frameworks, arising as they do out of the development of abstractions and by inclusions of various simpler norms into larger wholes, take on a characteristic general stance or perspective regarding human affairs, they also carry with them their valuation aspect that gives them their energy, the go-juice like gasoline in the tank of the car, that provides the energetic motion propelling the thoughtful activities of the framework. Any framework thus takes on the character of an ideological framework. It becomes recognizable as people display their thinking regarding a public policy issue or in the analysis of some problem of explanation and possible actions. Adults can sometimes more or less see these ideological frameworks at work in others’ thinking and actions. ideological frameworks arise out of intellectual development, and they are not present at birth or even among young children. Only with the development of more advanced thought of the adult do the larger, more abstract wholes of ideological frameworks appear.

Now what is interesting is what happens when norms in the form of ideological frameworks take on a matter of necessity for people because when they do, they seem to lead to seeking some means of enforcement and compulsory compliance. Obviously legal norms and laws are abstractions of forms from their expression in human activity which at lower levels operates without conscious awareness; it is only later that forms are abstracted, made elements of thought, and then seen as proper forms of conduct. It may appear that without these proper forms of conduct, human interactions would break down leading to negative results. It is the ideological framework that defines the nature of the positive an negative results of human activities, and it is the ideological framework that leads to the need to enforce and compel compliance with certain norms, and, of course, law and government is the mechanism by which some ideological framework attempt this expression and compliance of norms.

There is no a priori reason why ideological frameworks necessarily lead to government action; the resort to government action only comes from some ideological frameworks. This particular feature of the relationship of government to society seem to rest on how the ideological framework itself understands how social order is possible, how it develops, how society and human action overcomes problems. Since these norms or frameworks for interpreting human activity develop in thought in such a manner as to include and organize more and more individual forms of behaviors, those ideologies that understand government as an essential means for developing social order, may quite naturally see more government in human affairs as necessary and inevitable.

On the other hand, those ideological frameworks that locate the origins of social order and the development of solutions to social problems in the general, non-governmental activities of society appear to see less role for government. The incompatibility of these two rest not in governments role but in something deeper that undergirds each interpretation of government’ role in human affairs. To simply assert a role for government is not enough for these assertions come out of an ideological framework. It is the ideological framework that must be justified, and for this justification of one ideological framework over another, there must be some justification for the foundational principles. The justification must rest in showing some epistemic access to the foundational and defining principles of an ideological framework.

Thus, for an ideological framework to show its desirability over another ideological framework it must both abstract and represent its foundational norms sufficiently so that the specific actions can be shown to derive from the principles and these norms and actions compared and demonstrated superior to other ideological frameworks. An ideological framework must contain its own principle of epistemic access such that it can derive justification for its norms in the face of challenge from other ideological frameworks. Of course other ideological framework accept different foundational norms as superior and assert different means of epistemic access to its first principles. The ideological frameworks must take on the reflexive problem of how to justify its foundational norms since these operate like axiomatic principles supporting the ideological framework. Thus, every ideological framework not only makes assertions of value and norms, it also contains its own epistemology as more or less expressed in its means of epistemic access. It uses its own form of thought to explain itself and other forms of thought, and in doing so necessarily contains a self-referential epistemology. In general, all the human sciences contain within themselves their own epistemology both in how to explain their object of study and in their methods of attempting access to their object of study.

The challenge then is to explain how exactly an ideological framework comes to use one form of epistemic access to another, a problem itself subject to the problem of choosing one ideological framework over another. We can begin to see the nature of this problem in political economy by looking at the specific forms of epistemologic access we find among the various ideological frameworks. Once identified, the challenge of explaining how each particular form of epistemology arises in human activity such that its particular expression in epistemologic access appears in conscious thought. We can see there are several such forms of epistemologic access as to be expressed and given priority in organizing ideological frameworks. Since ideological frameworks need foundational principles upon which to organize themselves, these always require some form of epistemologic access. It answers the problem of how we know to accept certain norms and more or less insures they are acceptable and proper, and for that matter, why according to our framework they should be acceptable and proper for everyone. The problem is solved (or at least appears to be solved) by the means of epistemologic access to foundational norms we have from within our ideological framework even though our framework itself derives from its own interpretations. Ideological frameworks in this sense of containing their own epistemologies are closed systems although some are more exclusive or inclusive than others.

Let’s take some examples. We might assert the founding principles expressed in our Constitution come from God, that we are a Christian nation, and that our form of governance must reflect and preserve God’s laws in our society. When questioned about how we know why certain principles are foundational, we can simply reply that these are God given rights of all man. In this case, our epistemologic access rests in having access to God’s laws.

Or we might assert that the founding principles come from nature, that these are derived from natural law. To justify them, we can assert that these express a priori forms present in natural human activity. Our epistemologic access in this case requires that we rationally see and attend to the obvious forms of natural rights inhering in human activity since these present themselves (at least to us) as obvious, a priori, and as such, necessary foundations in our thought about governance.

Or we might assert a form of social construction in which order arises out of democratic debate and the ensuing government action imposing the will of the people. Government is the expression of ideals of the state taken as sort of the collective of society. Government then become the way we as a people come together to solve our problems. Our epistemologic access rests in democratic action, and this action is learned from childhood through education for democracy necessarily preserved in public schooling. We socialize children in democratic participation by making schools, which necessarily must be public schools, be the agents of training for democratic participation and change. The epistemologic access is social process of coming together and discussing such as to find the consensus of the adults in society. The epistemic access is through the social process, not some a priori principle from either God or natural law, and the moral norm is what, via democratic action, emerges as the group consensus. Foundational principles change since principles are not actually foundational but are only the current outcomes of democratic action that somehow is expressed in the consensus among citizens.

As a final example of epistemic access, we might envision foundational principles not as fixed but as arising out of human activity in an emergent, self-organizing process such like evolution. Now in this ideological framework this process of self-organizing emergence out of human activity requires that the emergent process of free activity be allowed to happen. Government not only inhibits constructive activity, it may even produce evil. As such it may not even be necessary to constructive activity which addresses problems and overcome them, even problems of lack of coercive governance. Our epistemic access to foundational principles rests in observing how over time systems develop and emerge and what impedes or blocks that process. To have epistemic access requires we let the evolutionary process of social construction operate, that we remove roadblocks to the fundamentally constructive nature of human activity by making human freedom of foundational importance since it is only via free activity that social order emerges and can be observed.

Now, to conclude, the problem is not to prove which of these ideological frameworks is the correct or best. That task is impossible since every ideological framework contains its own justification in its particular means of epistemic access. The only possible method by which to transcend the disputes among the ideological frameworks is by some framework which not only compares the various frameworks, but itself does not distort or depend on an exclusive method of epistemic access. That is, we must not only find a framework that can encompass all the ideological frameworks, it also must allow us to properly frame a statement of the problem and formulate a method for solving the problem acceptable the various ideological frameworks.

Government and Gay Marriage

Many elected Iowa Republicans signed onto a bill that would end marriage rights but also end civil union, in essence would curtail gays and lesbians rights to visit partners in hospitals, end the right to civil union, etc. What do you think?

Government has no proper moral or constitutional power to decide this issue. It should not be a political issue any more than should one’s religious belief or any other belief be politicized. I believe the principle of government neutrality regarding people’s beliefs and practices should be applied to the issue of gay marriage or unions. And it it is to be neutral and just to all, government must be removed from the issue for any involvement by government necessarily means forcing some and harming others.

There are many proper bases for establishing a commitment to a long term relationship (and we find them in our own extended family): 1. A social basis because we identify with a group and we want to establish a relationship with another like-minded individual. 2. An economic basis because we want to maintain an arrangement of financial benefits and obligations. 3. A religious basis because we believe marriage is sacred and want God to sanctify our union. 4. A moral basis because we feel compelled to commit to a long term relationship to preserve the mutual reciprocity in spite of stress or one-sided needs. 5. A family basis because we feel our children need and deserve a secure, loving long term arrangement. 6. A traditional basis because marriage has evolved over time and expresses a deep and long-standing institution among people. 7. Sex because it just feels good. 8. Or by a government authorization by application for a marriage license.

None of the first 7 require government approval or change in law to establish a relationship. Only #8 has a basis in law, and only #8 is therefore politicized. People certainly justify their political position on #8 on the basis of 1 through 7 but the deeper problem is why government is giving preferential treatment to one group and discriminatory treatment to another. Why isn’t government neutral? The reason is that one belief or collection of beliefs 1-7 were used as the justification to enact a legal basis for discriminatory treatment, and there seems to have been no mechanism such as Constitutional prohibition to stop it.

The debate over gay marriage often seems tangled up in 1-7, which are about the content of the relationships. People debate whether government should sanction gay marriages, etc. But the debate exists only because it was created by having government involved in the first place. We made the decision, improperly, a political one. Te problem is that we have fundamentally different points of view, and if we try to use government to decide and enforce who is right, we necessarily establish and enforce discrimination against the losers and favored treatment for the winners.

The debate should really be about the more fundamental principle regarding the proper role of government and the principle of government neutrality regarding people’s beliefs. We simply shouldn’t be politicizing human relationships by governmentalizing their essentially private nature. Of course citizens have the right to free association and to equal treatment under the law, and so we should change the debate to asking why people have used government in a way to restrict their free associations and to submit them to unequal treatment. Why have we used government force to make others adopt a discriminatory point of view regarding gay marriage?

The fact that the power of government has been used to enforce discriminatory treatment should awaken us to just how important the underlying issue is and to question why we have politicized this debate in the first place. The debate is not about whether gays have equal rights. Of course they do. The debate is about laws that enforce government discrimination.

But discussion is difficult; we generally do not debate the proper role of government perhaps for several reasons. First, it is easier not to because the issue of the day is immediate, concrete, and seems to require a position, not a diversion to something more abstract. To get to the underlying problem of whether we should use government decision-making or whether it would be better to leave it up to the citizens involved seems awkward in a discussion and uncaring to others who want to set things right…immediately, not debate and delay. We don’t usually have time for lengthy discussions and usually it would not be wise for use to use our time in such a manner.

Second, because the principle of government neutrality, like all principles is abstract, it, unlike concrete issues, takes significant thought and reflection; it is not easily given to a thoughtful and immediate response; from the research into reflective abstraction in the sciences, reflective abstraction of principles demands certain advanced intellectual capabilities that many people simply haven’t yet achieved. Reaching a position based on principles takes will power in order to withhold judgment and to do some research, analysis, and reflection. Wisdom is not immediate, and impulsive and more thoughtless argument is much easier. Emotionalism and assertion simply feel better than the values and principled reasoning.

Third, it is very tempting to use government to force others to adopt our point of view because, of course, we strongly believe we are right and because we believe the other side is not only wrong but sometimes we even infer they are evil. The test of whether there is tolerance in such impulsive behavior is to find out whether the person can honestly and lovingly explain both points of view, or do they simply dismiss or distort the other point of view?

Fourth, the pull of our notion of democracy is toward thinking that democratic decisions are always best. It is easy to believe (at least thoughtlessly) that government is the proper means to solving societal problems, and perhaps we even think it essential and necessary if a problem is to be solved. But of course the use of government to try to solve societal problems is exactly how discriminatory treatment of certain groups has been instituted and enforced. And really, do we want majority opinion even if it is democratic, and not a republican form of decision-making, deciding the issue of gay rights? Is group think the basis of moral reasoning? I think not. We must remember that throughout history, the great causes were led by leaders who have been in the minority. Even the American Revolution lacked majority support. Public opinion lags; it does not lead, and it has not been majority opinion that fostered the great revolutions and emancipations.

Fifth, I suspect we don’t want to be tainted with any suggestion that we think the other point of view has any merit less we be accused of being in their camp. We can’t discuss the Tea Partiers’ issues since that would suggest to others that we might sympathize with them, heaven forbid. Interestingly, there is a widespread phenomenon documented by researchers that in surveys what people say doesn’t match what they believe if they think their beliefs are not popular.
The last reason why we don’t discuss the proper role of government is that the logical pull of a certain kind of thinking seems to preclude any alternatives; in this kind of thinking, what grips thought to the exclusion of alternatives is the belief that governance and oversight are absolutely necessary to solving problems and to social order. Without government it seems obvious that we would have rampant corruption, violence, disintegration, prejudice, exploitation, greed, vice. Hence, we cannot ask, for example, if we want health care for all; if we believe it should be a right—should government be involved or could it be achieved better for more people by some other means? Or we cannot ask if global warming is a problem—should we use government to stop carbon based activities or is there some far better means we should use? Or we cannot ask if the bottom wages for poor people are below that of a living wage—should we use government to set a minimum wage or could we help the poor far more effectively by some other means? No. In all cases, it seems compelling to believe that we must use government to force solutions on people and that no other means could possibly solve our problems much less solve them far better. It is unthinkable to consider that government involvement may actually be the cause of a problem.

Whether gay sex is wrong, whether children should be conceived out of wedlock, whether we should have sex for the fun of it, whether there is a moral or religious basis for only opposite sex unions, none of these should be the concern of political processes for deciding how use government to impose a solution on everyone. Government in the sphere of morality and religion can be of now benefit and has often been used for great harm. Government simply can’t force people to be moral, or to be straight, or to deal honestly with others, or to respect others, or to be tolerant of others’ with whom we disagree.

Government is involved in the issue of gay rights and civil unions, and it is non-neutral in its treatment. This government involvement is quite frankly, at least from my perspective, on its face immoral. Whenever we use force to make people do things or not do things against their will except when they themselves are using force against others, we are acting immorally; the improper use of government force is a priori immoral. Here in the issue of gay rights, we have a moral issue that inappropriately was made a political issue concerning how we should have government force or prohibit certain behaviors on people or dole out benefits to certain groups and not others. Government involves has turned the issue into the question of how to use government power to force everyone to adopt a particular moral position regardless of how badly it tramples on the dignity and rights of anyone, and that is the real issue that should be discussed.

So the question of whether government should allow gay marriages or not is not the proper question. If the problem concerns how to make government neutral regarding gay rights and unions, then the only way to do that is to get government out of the issue. Thus, the fundamental question is: what the hell are we doing having our government involved and deciding this issue and perpetuating the injustice?

Government, Neutrality, and Tolerance

Where is this country headed? Do you see any danger in ever closer ties between church and state? Have those barriers between church and state been broken to some extent? Locally, the Baptists hold religion classes at Valley School (Awana) and store their equipment at the school. I wonder if that gives a stamp of credibility and validates a certain religious point of view.

Government must remain neutral and not actively for or against any group. There are no constitutional barriers nor should any law ban religion in the public arena; this principle means that government officials can not attempt to ban unofficial expressions of religious belief or practice in public schools. Government policies and actions are also may not attempt to establish some religious practice or entangle itself in religion.

Government policy can only have a secular purpose that is neutral to religious or non-religious belief. That is, the principle of neutrality in the public square means government official may not actively attempt to separate religion from government by prohibition of religious activity in the public square. The Constitution does not require the separation of religion and government; it prohibits the establishment of religion or its free exercise thereof by government.

The principle is that government must remain neutral, not that it must erect a barrier against religion since that would be to discriminate against religion. To remain neutral government must neither advance nor inhibit religion. This neutrality principle requires neutrality both among religions, and between religion and non-religion.

Concerning the use of school buildings, there is nothing wrong with allowing public facilities to be used by groups whether religious or non-religious as long as all groups are treated equally without regard to the content of their beliefs or practices; a policy cannot discriminate against a group on the basis of the content of the groups beliefs or practices. If Valley school officials have a policy that allows community groups to use school facilities and there is no compulsory attendance imposed on students by school officials, the use of a public school building by the Baptists or any other group is proper; the principle of neutrality requires that we be tolerant of all groups.

On the other hand, if a school official or coach organizes the giving of a prayer at an student assembly or in the team locker room to the assembled team, the students are effectively under compulsion, the intent of the activity is religious, and the school leaders are entangling the government in religious practice. Government must not advance certain beliefs by its word or deed; the establishment of some beliefs necessarily includes an intolerance of other beliefs or practices.

The principle of tolerance is more than one of limitation on government actions; it is a broad, moral principle. It means we must try to understand that tolerance does not mean to discriminate by word or deed, that is, by actively prohibiting or denigrating those beliefs which we ourselves do not hold. For example, for liberals to speak of “hate radio” or to denigrate Tea Partiers suggests an intolerance that is not part of Classical Liberalism but arises out of political passion. The principle of government neutrality is part of the more general principle of tolerance and acceptance of diversity. Where there is no direct, tangible consequence of harm to others, we must leave others alone.