Author Archives: wayneasmith

Michigan “Extreme Risk Protection Order” Bills

After my last posting I took the occasion to review the subject, consisting of House Bill No. 4283 and Senate Bill No. 156 introduced in the Michigan Legislature.  They are “carbon copies” of each other.

Since the last post didn’t explicitly indicate that I favor these type of bills if properly structured, I decided that I ought to post comments I submitted to my State Representative and State Senator.  These demonstrate both my support of appropriate ERPO statutes, and also deficiencies in those bills.  Therefore, below is the text of those comments.

This is provided in regard to [House Bill No. 4283] [Senate Bill No. 156].

It is my opinion that the utility of an Extreme Risk Protection Order (“ERPO”) is a beneficial exercise of authority in appropriate situations and ought to be authorized by appropriate statute provided that the authorizing ERPO statute conforms to procedural due process requirements. Regrettably, it is my opinion that this bill does not, and therefore urge that the committee and chamber make radical amendments thereto.

For assistance in demonstrating some of the deficiencies in the aforesaid bill I have recently made an analysis of similar bills now pending in the U.S. Senate, this being accessible at:

Do the current proposed Congressional “Red Flag Laws” themselves exhibit Red Flags?

A PDF version of the post, containing in the body thereof the PDF tables linked therein, can be provided on request.

Specifically, I inter alia note problems with the following sections of the bill:

  • 3(e) (a qualified objection, as to its breadth)
  • 5(2)(b), (c) and (d)
  • 5(3), as to the “significant risk”, rather than an “extreme risk”, standard
  • 7(1), as to the minimal “reasonable cause” and “significant risk” standards. [In this connection I would note that the bill does not even require the unacceptable “preponderance of evidence” standard for the adversarial hearing order imposed by S.506 of Senator Feinstein.]
  • 7(1)(a), as it is not clear from the “testimony” reference that appearance by and cross-examination of the complainant is required, risking the same possibility of “show trials” envisioned by Senator Feinstein
  • 7(2), as a “clear and convincing” standard only is appropriate, though it, unlike S.7 of Senator Rubio and S.506 of Senator Feinstein, does require a showing of “immediate and irreparable injury”
  • 7(4), as to the limitation to 1 motion is inadequate, as potential abuse from multiple motions could be otherwise addressed
  • 17

Other sections of the bill also pose difficulties but, since they are not replicated in the U.S. Senate Bills, are not addressed in the post and would have to be discussed later.

I trust the foregoing is satisfactory to indicate the necessity of opposition to the aforesaid bill as presently drafted.

WAYNE A. SMITH
Sanilac County, Michigan USA
04 June 2019

Do the current proposed Congressional “Red Flag Laws” themselves exhibit Red Flags?

On January 3, 2019, Senator Marco Rubio of Florida introduced in the United States Senate his Extreme Risk Protection Order and Violence Prevention Act of 2019 (“S.7″). On February 14, 2019, Senator Dianne Feinstein of California introduced in the United States Senate her Extreme Risk Protection Order Act of 2019 (“S.506”).

On March 26, 2019, the United States Senate Judiciary Committee conducted a hearing on Red Flag Laws: Examining Guidelines for State Action (“Hearing”). Five (5) witnesses appeared at the Hearing, all of whom submitted written testimony prior thereto as well as testified at it. One of those witnesses was Professor David B. Kopel (“Kopel”) whose written testimony set forth certain criteria for assessing the conformity of such statutes to procedural due process requirements.

This post will endeavor to analyze whether S.7 and S.506 conform to Kopel’s criteria. While some may disagree that these are the proper criteria to apply, this post operates upon the assumption that these ought to be operative in determining the acceptability of, or deficiencies in, either S.7 or S.506.

The initial observation is that both S.7 and S.506 are properly limited to the function of providing possible financial grants to the States for implementing such statutory regimes. For these regimes are solely within the Police Powers of the States and thus beyond the enumerated powers of the Federal government. Nevertheless, since both S.7 and S.506 prescribe certain guidelines for determining standing and procedures, those guidelines will be expected to exert a certain coercive effect upon the States to adopt a statutory regime parallel to them; for even if more strict standards could be employed by the States, or some of them, it will be expected that the general propensity (if not universal principle) to exert minimal effort to attain an objective will discourage the States, or some of them, to be more ambitious in providing further standing limitations or procedural protections.

Let us first review Kopels’ criteria, by category and standard, of preferred requirements. Afterward I will offer my own modest reaction to any toward which I might find problematic. These criteria, due to page width and consequent formatting problems, are set forth in my PV-ERPO_Tlb-1.pdf PDF file.

The only requirements that I might find problematic are, first, providing appointed counsel for the Respondent, and, two, excessive discouragement of No-Knock Raids.

Addressing the latter first, while these entries are certainly subject to abuse, they are occasionally required. If specific restrictions are described for their employment, then these can be prudent.

A confiscation regime is a civil proceeding. Accordingly, the requirement of provision of appointed counsel could be questionable. Nevertheless, since these proceedings could be deemed quasi-criminal, such a requirement could be appropriate.

Other than these, I find Kopel’s requirements reasonable and prudent indeed.

Let us now address our attention to S.7 and S.506 to determine how their standards conform to Kopel’s requirements. While some of those requirements may not be appropriate to either bill, as its purpose is to provide financial grants and only prescribe minimum standards therefor, I will include all of them in the below table, and either fail to note an “X” in either the “Yes” or “No” column if inapplicable, infer a negative answer by its silence, or include an * when the answer is qualified.

Now let us see how well these bills measure up. This comparison, due to page width and consequent formatting problems, are set forth in my PV-ERPO_Tlb-2.pdf PDF file.

As is clear from this PDF file, both S.7 and S.506 are deficient in providing protections deemed by Kopel to be required; while the marks in the “No” column for S.506 are profuse, S.7 also exhibits numerous failing grades. This writer likewise concurs that insufficient protections are afforded to the potential respondents in these proceedings.

S.7 makes some attempts to afford protection to potential respondents, albeit not adequate in this writer’s opinion. Its profuse provisions, the verbosity being far in excess of the sketchiness of S.506, may detract from, rather than enhance, those protections.

S.506, however, makes no attempt to provide more than a facade of procedural due process. It provides only a bare skeleton, delegating to the States — a facile gesture to Federalism as §4 describes it as the “National Extreme Risk Protection Order Law” (emphasis supplied) — the task of defining the procedural requirements, none of which have to be more rigorous than the bare skeleton of S.506.

Nevertheless, an attempt will be made now to compare certain of the respective provisions in, and the anomalies of, these bills. These will be addressed, as above, in a chronological order, and thus not a ranking of the importance of these deficiencies:

1. Commencement
S.506 provides no definition of or limitation upon the persons who could file a petition, but wholly defers to State action. Theoretically, then, if each State acted likewise, any of some-325,000,000 persons could file a petition against anyone else, regardless of their facile lack of knowledge.

S.7 attempts, by its addition of 34 USC 3041(3), to limit those qualified to initiate a proceeding. Still, the breadth introduced by (3)(B), (3)(C)(ii), (3)(E), and (3)(F) allows a wide range of persons who could act from ulterior motives as well as, in some of the cases, have minimal current contact with a potential respondent. Curiously, the proposed addition of 34 USC 3042(b)(5) allows a State to limit qualified petitioners to only law enforcement officers without imposing it as a minimum requirement; by this it almost appears as an afterthought or as a cautious suggestion to the States.

2. Risk of Injury
Neither S.7 nor S.506 impose a high standard of prospective adverse consequences if a confiscation order is not entered. S.7 only requires a showing of significant danger, while S.506 even eliminates the adjective and is satisfied with just a showing of danger. Neither then is consistent with their titles of addressing extreme risk. Further, the criterion of just danger seems overly-broad, would “cast too wide a net”, and often can merely be in the “eye of the beholder”.

3. Burden of Proof
This it would seem is the most-important deficiency in the bills.

While S.7 fortunately does require proof at the adversarial hearing by clear and convincing evidence, it permits the entry of an ex parte temporary confiscation order upon only a finding of probable cause; as this does not satisfy even the preponderance of evidence, much less the clear and convincing, standard, it clearly seems inadequate. This writer considers Kopel’s argument — if an unopposed application cannot at least satisfy a clear and convincing standard then there would not seem much merit to it — persuasive.

S.506 fails even more than S.7 in this regard. For an ex parte temporary confiscation order it only requires a finding of reasonable cause. And for the adversarial hearing it allows entry of a confiscation order by only a preponderance of evidence. Along with its other provisions, S.506 seems to consider requiring confiscation to be the default posture.

4. Ex Parte Temporary Confiscation Order Evidence
If the standard for the burden of proof justifying entry of such an order were high enough, then neither bill would be fatally deficient in this regard. It is of course common practice for Temporary Restraining Orders to be determined and entered based upon affidavit only.

S.7 does require the petition to be accompanied by a sworn affidavit “stating the specific facts that give rise to reasonable fear of significant dangerous acts” and requires for the entry of a temporary order “detailed allegations based on personal knowledge that the respondent poses a significant danger”. It also requires the court to “conduct a hearing, either in person or by telephone”. If it also imposed a higher standard of proof, this procedure would seem sufficient.

S.506, though, in addition to the same inadequate standard of proof, fails to provide for like submission of necessary evidence. It permits the entry of an order if “the application alleges that the respondent poses a danger of causing harm”, with the application being “on a form designed by the court … that … describes the facts and circumstances justifying … an extreme risk protection order … and … is signed by the applicant, under oath.” Those with familiarity with court forms providing for check boxes allows them to apprehend that merely minimal and cursory allegations may well suffice.

5. Surrender of Firearms
S.7 appears to provide for sufficient procedural protection upon this aspect. While not explicit, the various sections providing for surrender indicate that voluntary compliance will be allowed. No necessary confrontation between law enforcement and respondents is envisioned.

S.506 again is less accommodating. As it defines an extreme risk protection order as either “a written order or warrant”, it suggest that No-Knock Raids may be a standard feature of its regime.

6. Storage of Firearms
Both S.7 and S.506 provide adequate provisions upon this aspect. However, S.7 is superior as, in addition to storage by law enforcement and Federal Firearm Licensees, it allows storage by responsible third persons, presumably acceptable to the respondent. Further, S.7 provides an express prohibition upon any action (or inferentially inaction) by a custodian that would deleteriously affect or impair the rights of the owner in the firearms.

7. Notice to Respondent
While both S.7 and S.506 refer to providing notice to respondents, neither prescribes that this will be promptly effectuated, much less within any defined period after entry of a temporary order or the issuance of a hearing notice. This obviously allows for potential abuse and, especially in the case of an ex parte temporary confiscation order, possible dangerous situations.

8. Conduct of Adversarial Hearings
Here also, as with the Burden of Proof aspect, there is an inexcusable failure to conform to procedural due process requirements.

S.7 provides that a court “may conduct the hearing required under clause (i) [the adversarial, not the ex parte, hearing] by telephone …” The respondent then is apparently deprived of the right of cross-examination, and possibly even of sworn testimony being required of the petitioner. This is wholly unacceptable.

S.506, if possible, is even more egregious. It provides no standards for the conduct of the hearing — not even telephonic “testimony”. Apparently, the only evidence it would require of the petitioner is the sworn application. S.506, it would seem, now introduces the novelty of “show trials” into American jurisprudence.

9. Malicious Prosecution Sanctions
S.7 at least endeavors to discourage abuse of its procedures. For it requires the States to enact a statute that any making of false statements under oath in these proceedings would constitute a Felony. While it would presumably apply also to respondents, any petitioner would likewise be subject thereto.

This should discourage any clearly-unjustified petition. However, since some prosecutors conceivably could be loath to prosecute these felonies, provision should have been made also for a civil remedy, as it would be under the control of the wronged respondent. No such provision exists.

S.506, as expected, makes no provision for either.

Other deficiencies exist in both statutes. Among these are some questionable categories of evidence treated as admissible, particularly those recited in S.7. However, this post is verbose enough as it is. Suffice it to say that the foregoing should demonstrate both bills require radical amendments in order to conform to well-established principles of American jurisprudence.

WAYNE A. SMITH
Sanilac County, Michigan USA
06 April 2019

UPDATE

The author belatedly became aware that also on February 14, 2019, Representative Salud Carbajal of California introduced in the United States House of Representatives his Extreme Risk Protection Order Act of 2019 (“H.R.1236”).

The author has now compared S.506 and H.R.1236 and they are identical.  Therefore, H.R.1236 displays all the deficiencies of S.506 discussed above.

Nevertheless, there is a further deficiency in both bills not previously appreciated.  Section 7 of both Bills recite:

SEC. 7. FULL FAITH AND CREDIT.
Any extreme risk protection order issued under a State or Tribal law enacted in accordance with this Act 14 shall be accorded the same full faith and credit by the court of another State or Indian Tribe (the enforcing State or Indian Tribe) and enforced by the court and law enforcement personnel of the other State or Tribal government as if it were the order of the enforcing State or Tribe.

However, Section 4 of both Bills, in pertinent part, recite:

SEC. 4. NATIONAL EXTREME RISK PROTECTION ORDER LAW.

(b) ADDITIONAL AUTHORITIES.—Legislation described in this section may—
(1) provide procedures for the termination of an extreme risk protection order;
(2) provide procedures for the renewal of an extreme risk protection order;
(3) establish burdens of proof for issuance of orders described in paragraphs (3) and (4) of subsection (a) that are higher than the burdens of proof required under those paragraphs; and
(4) limit the individuals who may submit an application described in subsection (a)(1), provided that, at a minimum, law enforcement officers are authorized to do so.

Therefore, Section 7 is manifestly inconsistent with Section 4.  Suppose State A enters an Extreme Risk Protection Order (“ERPO”).  The ERPO is then sought to be enforced in State B

However, State B, pursuant to Section 4(b)(1), (3), and (4) has enacted similar legislation but with standards more rigorous than those of State A; those higher standards might conceivably have resulted in denial of an ERPO if sought in State B.  Nevertheless, Section 7 would purportedly require enforcement of the State A ERPO even though unjustified by the laws, and against the public policy, of State B.

Hence, thereby, would the Police Powers of State B be supplanted and controlled by the laws of State A.  Federalism is not intended to allow, nor does it permit, the lowest common denominator to dictate the laws of another State.

For this reason also, these Bills are unacceptable.

WAYNE A. SMITH
Sanilac County, Michigan USA
03 September 2019

 

Another Example of the Prudence of Minimal Governmental Intervention

The outrageous tragedy at the Tree of Life Congregation synagogue in Pittsburgh on October 27, provides another example of the vital importance of governments, particularly at the national or international level, maintaining a “skinny agenda”.

It appears that his hysteria on the Immigration issue was the ultimate motivation of the unspeakable villain, Robert Bowers, in his evil attack at the synagogue.  Forming a conclusion that the Hebrew Immigrant Aid Society was engaged in activities on the opposite side of the divide on the issue, he lashed out at innocents who he identified with it.  (This in no way implies any justification for his heinous actions but is only intended to provide the context for below perspective — as his psychopathic behavior was not inspired only by personal animus but by positions on public policy.)

The question of Immigration policy has of course been one of the most hotly-disputed current issues. It has inflamed people and occasioned excessive incendiary rhetoric on both sides of it. The polarization on the question has resulted in a constantly-spiraling descent in inflammatory rhetoric by both sides.  (At the risk of inspiring ire by paraphrasing POTUS’ inarticulate comments on the 2017 Charlottesville Virginia rancor, there are, in addition to good people, also bad people, on both sides of an issue.)  Certain people are deranged by this rancor.

On any issue there are discrete groups of people with contrary opinions.  On both sides one will find tiers of these groups, consisting of:

  • good people espousing rational arguments,
  • good people espousing irrational arguments,
  • bad people, and
  • evil people.

If an issue is sufficiently detached from immediate interest and impact on most people, the persons involved in expressing and effectuating an opinion on these issues will generally be only those upper tiers.  However, as the impact from it becomes more direct and significant, as well as the rhetoric surrounding it becoming more incendiary, then the lower tiers will begin emerging from the woodwork.  Then the threat of intense conflict and violence accelerates.

Wisdom and prescience are always in short supply.  The inability to accurately assess and evaluate an issue curses the vast majority of the decisions of everyone.  Therefore, maintaining flexibility and humility in formulating, expressing, and effectuating one’s opinions is of paramount importance; for the most confident anyone should be is that the contrary opinion of another may be the correct one.

Unfortunately, in the context of government, this is usually an impossible challenge.  Both historically and by theory the vast majority of decisions are decided by the will of a simple majority.  This necessarily then excludes a substantial portion of the people within its jurisdiction, and imposes a policy contrary to their opinion.  This policy will necessarily, proceeding from the decision by only a portion of imperfect persons, fail in attaining its intended objectives.

The more a government attempts to intervene in the regular activities of its citizens, the more intense will be the reaction of those who disagree with and oppose the policy.  Rancor will then result, and the tiers of bad people and evil people will swarm into the controversy.  Thus, the skinnier the agenda, the less likelihood of intervention in common activities and the inspiring of hostility by those affected.

Admittedly, Immigration policy might be a poor example upon which to base this characterization.  This policy is not only one that can only be determined and administered by a national government but is a basic function thereof — as well as one which was required to be performed not only by the current administration but by all previous ones.  Yet, if government had not intervened on many other issues that are justly outside of its jurisdiction — thereby introducing an environment of hostility and conflict — the impact and effect from the controversy on Immigration policy might have been minimal.  For the less a government causes irritation among its citizens, the less sensitive will they be to policies with which they disagree, and less susceptible to agitation by malefactors.

Thus, government structure, when conforming to this “skinny protocol”, can be envisioned as a pyramid, with the national government at the top pursuing the narrowest agenda, and downwards gradually expanding into broader agendas at lower levels, with the broadest being at the local level.  With local units that are, by chance or choice, more homogenous in their citizen composition, then even broad agendas will be unlikely to inspire hostility and conflict.

WAYNE A. SMITH
Sanilac County, Michigan USA
30 October 2018

NATURAL RIGHTS, NATURAL LAW & NATURAL JUSTICE — A Theoretical Construct

[The following is the first draft of Appendix C to the Second Edition of my Interstice Amid the Fabric of Life / Volume 1 : The State of Primordial Mankind, [paperback and Nook® ePub or Kindle® ePub] essay. As I will for awhile be in the process of finalizing the second edition, I provide this as preliminary notice of this addition thereto.]

These three principles are basic premises, and essential to the perspective, of this essay. Accordingly, inclusion in this edition of this discussion was deemed essential.

However, as they are the premises and perspective, it was considered that insertion of them in the text — the suggested chronological narrative of the development of civil society and its support institutions — would cause disruption in the “narrative flow”. Therefore, even though this development could only have transpired within the context of the operation of these principles, this construct is assigned to an appendix instead.


Origin and Character

When the first inhabitant appeared he was unrestricted — other than by his personal mental and physical limitations, as well as by his locality’s geographical features — in his liberty of choice.1 He was endowed with the right to select the course of his life, those means and devices to utilize in order to preserve it, the area of habitation for it, his food for survival during it, and the labor to be performed to secure those goals. These then were his Natural Rights.

Exercise of these Natural Rights though was not random. As Liberty is an active state, it entails conscious, intentional behavior. However, as all energy is finite, and particularly that available to any individual, in a natural state there must be a direction and vector for this behavior; otherwise the energy that would be utilized to enable performance will be dissipated and no longer available to that individual.2 This dissipation of energy then would restrict the capacity of the source individual in the exercise of his Natural Rights.

But such a consequence would constitute a deprivation of these Natural Rights. And the endowment of these on all persons is an axiom. Thus, since such a state is inconceivable as it would destroy the system, there must exist certain principles for the guidance and regulation in the exercise of these Natural Rights. In these principles then is the basis and substance of Natural Law.

Natural Law then consists of original, inviolable, universal principles governing and directing human conduct.3 Any violations, much less repudiation, of Natural Law necessarily leads to social decay and destruction. For as they are integral to the system, the system cannot survive without observance of them.4

Not only the inaugural inhabitant but all successive inhabitants were likewise unrestricted, endowed with these Natural Rights and subject to this Natural Law — of the same degree and equivalence, as if they had been the inaugural inhabitant. For it was the system which invested them and subjected them, and not their predecessors. Therefore it was beyond the power of any predecessor inhabitant, either individually or collectively, to alter either.

Only when contact occurred between these inhabitants did the necessity arise for mutual restriction of the scope of their liberty. And even then the degree of this restriction was only in proportion to the duration of the contact, whether temporary or permanent.

Only in community did each of the members of it voluntarily abridge their Natural Rights — and then only some of them and only to the extent necessary to remain in community. By mutual concurrence upon appropriate and necessary restrictions in response to exigencies encountered in community, gradually considering alternate solutions to each unique circumstance, uniform standards of fairness and equity were identified.5 This then was Natural Justice.

As civil society enlarged, further adjustments to practices, in order to preserve peace and order, were required. These however, since Natural Rights, Natural Law and Natural Justice existed before any inhabitant, much less community, emerged, did not and could not redefine, much less abrogate, them.

Attributes

Natural Rights
These original rights are inherent in and implicit to nature. While these rights can be codified, as they are integral to the system of life, they then need not be made explicit, and any absence of codification cannot be construed to abrogate or restrict them in any degree. None are displaced by any delegation of authority to anyone else unless possibly by explicit and unambiguous surrender.6

These original rights consist of those which are primary and secondary. Primary original rights cannot be divested, though secondary original rights, for predominant reasons and with unambiguous consent, can be potentially and partially divested. Those primary original rights, ones which cannot be divested, consist of the following:
–  life
–  self-defense
–  a domicile and shelter within its curtilage
–  food
–  performance of productive labor
Those secondary original rights, ones which can be potentially and partially divested, consist of the following:
–  movement
–  clothing
–  procreation

Natural Law
Natural Rights and Natural Law, being integral to the system, originate concurrently. However, as Natural Rights can be exercised in isolation, Natural Law, or at least a segment of it, initially remains inchoate. Yet, even if partially inchoate, Natural Law always remains present and active.

For, as already observed, mankind in its natural state were endowed with certain essential rights. When exercised in isolation, and thereby under the control of a sole individual, order is present. However, when exercised in sufficient proximity to another individual as to limit the other person’s liberty, then disorder is introduced.

This is the consequence of Natural Rights being of equivalent characteristics and with equivalent orbit in their effects when exercised. Accordingly, when an individual no longer exercises these rights in isolation, the orbit of their effect will overlap the orbit of another. But since no two properties can occupy the same space, collision between these sets of rights — even if not necessarily conflict between the individuals — is inevitable.

Accordingly, a mechanism must exist to enable order.7 Otherwise chaos would have ultimately ensued incident to this clash of orbits of Natural Rights, with all inhabitants subject to endemic war and insecurity. But entropy is not the natural state of a system, but rather is only its end, deteriorated state. Consequently, it would be impossible for disorder to be the natural state of mankind; ergo, it must be concluded that conditions promoting and constituting order were originally present. These conditions were the principles of Natural Law ensuring survival of mankind.

What is the nature of Natural Law? In analyzing it let us look at the prime Natural Right, viz, Liberty. Liberty endows each person with the right of choice. It is therefore individually-oriented, with the choices reflecting the person’s unique psychological composition. As these psychological compositions are unique, the choices of any set of various persons will then proceed in disparate directions8; ultimately they will converge on each other. These multiple and conflicting vectors though are contrary to order, the innate quality of the natural state.

Natural Rights thus require direction. Natural Law directs the proper exercise of these Natural Rights. Natural Law then is mandatory in character.

Now, what are the principles of Natural Law? Being integral to the system, these principles are not merely inviolable but fully and perfectly integrated. But Mankind’s comprehension is congenitally limited and imperfect — demonstrable not merely empirically but as Mankind is but an addition to and component of the system and therefore subordinate to it. Therefore, these principles are essentially incognizable and imperceptible.

Yet, the core principle is manifest. The function of Natural Law to institute and maintain order. Thus, the core principle is harmony. From this core are radiated the corollary principles.

Unlike Natural Law, the scope and elements of Natural Rights are known. Each person then knows he is endowed with them. Therefore, he knows that all other persons are likewise endowed with them.

In a state of harmony there is understanding of and appreciation for the conditions and circumstances of the social environment, including the knowledge of this universality of Natural Rights. They thereby are then mandated to observe respect for the Natural Rights of each other inhabitant. Respect for the Natural Rights of others then is a prime sequential mandate of Natural Law.

Nevertheless, a course of activities by one will necessarily intrude upon the course of activities by another.9 Thus, some exercises of Natural Rights by one person will necessarily infringe upon some exercise of Natural Rights by another.

This infringement, though, is in conflict with the mandated respect for the Natural Rights of others. How then to resolve this conflict? One can only do so by structuring the activities in which they engage so that these observe the Natural Rights of the other inhabitants. To do so, they are mandated to mutually cooperate with any inhabitant who is affected by any of their activities. Mutual cooperation then is another prime sequential mandate of Natural Law.

Further, if a given inhabitant is more adept and successful in accumulating resources, they are mandated to share those resources with those inhabitants who are less privileged — as the inequality between them will, to some degree, produce disharmony; the occasion and extent for this assistance, though, remains an election and exercise of choice by the more-privileged inhabitant, as he remains endowed with his Natural Right of Liberty. No inhabitant is compelled by any collective body of society to perform these acts of charity, but rather only compelled to so by Natural Law. Charity then is one more prime sequential mandate of Natural Law.

Other prime and corollary principles must exist but, not only are they beyond the ken of this writer, they are by definition not fully cognizable. Rather, only the failure to observe these principles is always cognizable; for any neglect in adhering to these principles will result in disharmony in the community — and this will be the evidence and the proof that the community is instead engaged in violation of Natural Law.

Thus, many of these principles will be discoverable only by observation of the effects in pursuing contrary principles, and not by means of a priori knowledge. These then are revealed empirically, during the process of resolution of a conflict between the apparent Natural Rights of disputant inhabitants, in determining the equitable and harmonious solution. In doing so the community then effectuates Natural Justice.

Natural Justice
Natural Justice is a standard that is constant. For the cornerstone of its precepts and its application is a respect for Natural Rights and an observance of Natural Law.10 Yet, while it does not arise out of but precedes civil society, it is a standard that remains inchoate without civil society.

Justice is the moral consequence of an unjustified act or failure to act. While it can occur in isolation — such as, for example, a person neglecting to perform some necessary labor, and rather remaining lounging somewhere, as a consequence of which a rotten tree limb falls on him, injuring or killing him — it almost invariably occurs relationally, in determining which of two acts (or failures to act) was morally justifiable and then sanctioning the person who performed unjustifiably.

Thus, justice almost invariably depends on the existence of interactions between people. And, consequently, civil society is a prerequisite for the materialization of an understanding of what justice consists. Natural Justice is the version of justice which optimally preserves Natural Rights and employs the principles of Natural Law. Just as civil society is essential for the emergence of Natural Justice, so Natural Justice is essential for the preservation of civil society. If so, then, the revealing of Natural justice is also essential.

Just as mankind is endowed with superior analytic intellectual capabilities — and the ability to make critical discernment — it is endowed with a sense of the contours of Natural Justice. A component of this sense of Natural Justice, and parallel to our superior critical capabilities, is the capacity to discern between actions and policies that are either just or unjust.

If we are able to discern actions that are just and unjust, then we likewise are endowed with the capacity to choose between them. For an element of discernment capacity is the employment, or non-employment, of that capacity — ergo, the capability of choice.

Integral to, and a component of, this choice and free will capacity, is the ability to choose evil acts. Therefore, while all mankind may be naturally endowed with a sense of righteousness, they are also subject to committing acts of unrighteousness. Thus both righteousness and unrighteousness dwell within each individual simultaneously and concurrently. Consequently, in these interactions between people there always will be some acts that are just and some that are unjust.

Moreover, there may be some corresponding actions by multiple people that are both just, but of a varying degree of justness. In these situations in particular the discernment capability is most crucial.

For it is in those complex and challenging contexts that the character and mandates of Natural Justice emerge. For Natural Justice is disclosed and defined as situations which require its explication arise.

As civil society develops and becomes more complex, the quality and extent of interactions between its members will expand and evolve. This though does not suggest that the inherent nature of Natural Justice evolves, but rather that its contours become more delineated, as well as more comprehensive. For the essential and common interactions between people have been and remain constant and omnipresent, and the lessons of Natural Justice learned from them are extrapolated to these emerging contexts in order to reveal and maintain its symmetrical contours.

In this Natural Justice effectuates Natural Law and preserves the harmony of civil society. Nevertheless, civil society will experience conundrums in its development where the unabbreviated exercise of Natural Rights interjects certain tensions in civil society. For this it will conclude that certain human-inspired rules are required. Hence, Positive Law is introduced.11

The Role of and Limitations upon
Positive Law

Introduction and Role of Positive Law
In the extended family and neighborhood stages, elementary application of Natural Justice was easily administered, since: first, the disputes were, in this sparsely-settled environment, relatively-infrequent; second, the disputants were more likely to be familiar with each other, and thus more inclined to assist in amicable resolution; third, the circumstances of the disputes were relatively-uncomplicated; and, fourth, the adjudicator could have the advantage of familiarity with the parties and circumstances.

Eventually, though, as the community emerged with its greater expanse and concentration, the volume and complexity of interactions proliferated, resulting in more disputes, the greater likelihood of minimal familiarity between the disputants and adjudicator, and increased factors for consideration in crafting a solution. In addition, the proliferation of interactions occasioned a greater intertwining of them, thereby, both in the dispute and its resolution, incidentally impacting other members of the community — injecting further factors for consideration.

Thus, the promulgation of subordinate rules to account for and prioritize these myriad factors was deemed to be of utility. Thus was introduced Positive Law.

Limitations upon Positive Law

Positive Law though is preceded by Natural Rights, Natural Law and Natural Justice. It is also an invention of human ingenuity rather than an inherent quality. It thus must be limited in its authority. Those limitations then should now be addressed.

Subordination to Natural Law
The nature and foundation of Natural Law is a foundation, a structure, albeit an intangible structure. An action either conforms to and matches the structure or it is incompatible with it.

Righteous actions and unrighteous actions thus can exist in the state of nature. If a person by his actions conforms to Natural Law, even if in ignorant of its requirements and mandates, then he may be deemed to act rightly.12

A known code of conduct, against which to measure an action, then is not required for it to be classifiable as righteous or unrighteous. Its success or failure to conform to the structure and standard of Natural Law then may be unknown — but for the stability or instability flowing from it, by which fruit it then will be known.

In the state of nature, then, an action either preserves harmony or promotes disharmony. It is the impact, or lack of impact, upon the social order then which qualifies it as righteous or unrighteous. As there is no code of conduct, there is no commendation for or penalty against the actor.

Without Natural Justice or Positive Law, then, an action will not be classified as wrong. However, since Natural Law is omnipresent, a wrong action, even if not explicitly prohibited, may still yield adverse consequences.13

Natural Justice, in determining the character of various actions, then (to analogize from quantum mechanics) collapses the question, by determining which action (or set of actions) is righteous. Yet, in a more-complex society where actions have proliferated (and necessarily then where wrong actions have also proliferated), advance guidance and classification was deemed prudent.14 Thus, Positive Law identified, and imposed penalties upon, unrighteous actions. Its function was to endeavor to codify the process and results which would have been employed and attained by Natural Justice.

While Positive Law then endeavored to perform the function of Natural Justice in a more complex and dispersed society, we should also consider its interaction with Natural Law. Natural Law provides mankind a direction toward which it must conform; and to conform, there are actions which it is directed to perform. Positive Law is not authorized — as it is inferior, being later in origin and of human invention — to conflict with or counter Natural Law. Therefore, Positive Law then is prohibitory in character.

It formally articulates the elements of unrighteous actions which Natural Justice revealed were implicitly prohibited by Natural Law. In conjunction with identifying those elements, it also imposes penalties upon the person performing these unrighteous actions. In this its prohibitory tenor is demonstrated and proven.

Positive Law then, to the extent it performs its assigned role, encompasses those actions which Natural Law implicitly prohibited. In this it parallels Natural Law, but as the analogue thereto.

But what if it does not? What if instead of promulgating the implicit prohibitions of Natural Law it conflicts with it? It would then yield an unjust society; for justice consists in what Natural Law decrees to be righteous. How then to minimize conflict between Positive Law and Natural Law?

Positive Law that mandates certain actions by individuals will obviously conflict with liberty, for it constricts the scope of choice which would otherwise be within the discretion of the individual. Positive Law that prohibits certain actions by individuals will likewise constrict liberty but, if in accordance with the strictures of Natural Law, would be a permissible restriction. Positive Law which expands prohibitions beyond those implicitly enjoined by Natural Law will, as indicated, produce injustice in the community.

Justifying an expansive application of Positive Law then is problematic. Rather, a narrow scope to Positive Law then would appear prudent — if not required. Nevertheless, certain conflicts will be expected to arise that would seem to require the attention and guidance by Positive Law; yet, the promulgators of it should be cautious in the imposition of it.

Perhaps, any Positive Law proposed for promulgation also should be deemed to be of temporary duration, to avoid both misconception of the prudence of it, and also to avoid binding descendants of the current generation to standards for which it is inapplicable in a new context. (The conundrum posed by conflicting considerations pertinent to this issue will be addressed in a succeeding sub-part.)

Finally, we began with the acknowledgment that Positive Law is of course subordinate to Natural Law. Another palliative might be a duty upon Positive Law promulgators to delineate any potential conflicts between them, enable these conflicts to be apparent to observation by the members of the polity through explicit notice thereof, and a duty to repeal any Positive Law proven by experience or manifest opposition to be in conflict with Natural Law (as well as to establish the mechanism therefor).

Restriction by Limited Government Powers
The pervasive cause of excessive, and potentially unrighteous, Positive Law is attributable to a misconception of the power of government. A crucial, if not primary, corrective to the danger of such Positive Law consists of a constant recognition of and adherence to the proper function of government. Thus, a brief summary of its role would seem to be proper.

It is the duty of civil society to both secure the Natural Rights with which its members were endowed and, in conformity with Natural Justice, resolve any conflicts arising from mutual exercise of them. As it expands, though, those conflicts become more numerous and complex, and eventually, due to the inability of its members to divert sufficient time and energy from their private obligations for the considered resolution of them, government is formed by the members of civil society. Since civil society predates government, its only authority consists of the powers delegated to it by civil society. This delegation consists of only those specifically-enumerated powers granted to it, as a recipient cannot receive, nor claim to have received, more than was given.

Thus, those powers not expressly granted to government are necessarily retained by civil society. For they cannot vanish but must repose somewhere; and as there was no active dispersion of them, civil society is the only possible repository. But these retained powers of civil society are only those granted to it by its members, so that all rights not affected by or subject to those delegated powers are likewise necessarily retained by the individuals composing civil society.15

Natural Rights, and the powers associated therewith, are bestowed on each individual at birth and as a birthright. They can only be vacated by the knowing, voluntary surrender by the individual. The surrender by any individual, or group of individuals, cannot vacate these rights of another.

Thus the powers associated with these rights are not delegated to civil society without the unanimous consent of all citizens of the polity; the withholding by even a single citizen of his consent vitiates the consent given by any (and all) other citizens. For Positive Law is obliged to retain the respect of the citizens and their voluntary compliance with it16; consequently it must eschew any unequal treatment as this would have the general tendency to diminish respect for its provisions.17 Therefore it must be uniform; excluding even one citizen from any particular prohibition requires excluding all citizens from the prohibition.

This framework then requires that the provisions of Positive Law have as limited an ambit as possible and that its effects within this ambit be as limited as possible; in the event of any legitimate doubt as to this question, then the promulgators must refrain from expanding it. Consistent therewith, Positive Law should never suffer any extension by implication; it should rather be construed as narrowly as possible.

Even with these restrictions upon it, there remains yet one more threat from it to consider. This now will be considered in the succeeding sub-part.

Restriction by Duration
We have in the preceding sub-part visited the formative stage of social order in order to define the inherent limits upon Positive Law. Still, as there remains an innate deficiency of Positive Law to consider, let us trod it again to reveal this aspect.

When civil society emerges and then government is formed, all individuals remain endowed with, and without any implied divestment of, their Natural Rights. Only explicit and voluntary surrender of them would allow divestment. But can a person, either individually or in concert, surrender their Natural Rights?

Natural Rights, being an integral component of the natural order, are inherited from Nature. If any person, much less all of the members of a polity, surrendered them it would disrupt the very foundation of the order. This then would inevitably lead to its collapse and chaos.

Still more central to the issue though is the attribute of the prime Natural Right, Liberty. Liberty is exercised affirmatively. Moreover, Natural Law obligations are mandatory in character; to adhere to them requires active engagement with the remainder of mankind, as well as nature.

A surrender of Natural Rights though would narrow the scope of actions which an individual could initiate — and thereby limit his powers. Since as to those surrendered rights and powers he could no longer be active, his respective potential now would necessarily be passive. This however is inconsistent with the character of Natural Rights and Natural Law. Thus, any purported surrender of Natural Rights must be deemed void.

Nevertheless, some limited reciprocal divestment of Natural Rights might be permissible. Once population concentration within a community attains a certain threshold a collision between the exercise of certain rights will necessarily transpire. The respective segment of the particular right being exercised by the affected members might then, voluntarily and with consent, be divested for transfer to the immediate government of these members so that it then could exercise them. This then would would avoid this segment of the right being deemed surrendered, as it would instead be affirmatively exercised by a different instrumentality.

However any such limited divestment would not survive the generation which transferred them — since these rights, including the divested segment, are the natural birthright of all people. As liberty is a birthright, divestment of the liberty naturally conferred upon posterity is impossible. Accordingly, any limited divestment not merely could not survive the extant generation but would have to be consented to by each member of the successor generation — as they cannot in advance be deprived of their birthrights.

Nevertheless even a purported explicit and voluntary divestment of any Natural Rights by an extant generation should be deemed void. An individual might divest himself of a material resource, and thus adversely impact his posterity by diminishing their inheritance. But Natural Rights are not posterity’s inheritance from their antecedents but from Nature.

Thus, any apparent divestment is subject to strict scrutiny as both to the volition of the polity who allegedly exercised it and as to its scope. For even though no individual can engage in a de jure divestment of the powers later naturally bestowed upon posterity, divestment of their own powers might have a de facto adverse effect upon these descendants.

Accretion is an inherent force of existence; dominant structures, until their demise, tend toward accumulation.18 Within an institutional structure, there is a gravitation toward power accretion. If there are a sufficient number of competing institutions, then this dynamic can be counteracted. However, if one institution attains a dominant status, then this dynamic will remain operative.

Accordingly, with this inertial force in institutional practice, disgorgement from it of purportedly-divested powers could be problematic. Thus, not only should surrender never be implied, it would be beyond the power of the polity to engage in any surrender that could divest posterity of a Natural Right. As liberty is the quintessential power bestowed thereby, divestment of posterity’s liberty is impossible.

Strict Construction
All Positive Law then should be cautiously promulgated and, if promulgated, strictly construed. The legislative function should only be employed as necessary and subject to approval by a predominant constituency, both of the legislature and the polity; it should be infrequently and narrowly exercised.

But if exercised, then it should be construed only as much as necessary to attain its initial objective and satisfy its expressed conditions. Rather, Natural Law should be unimpeded in performing its function of ameliorating disharmony in civil society, the use of Positive Law being the exception.


1 As elsewhere contrasted in this essay, liberty is the right to perform an act, while freedom is the right to not perform an act; Liberty then is active, and Freedom then is passive. In the natural state original man was not constrained in his actions by the choices of other inhabitants; only with expansion into the unitary family, extended family and community was there sufficient habitation concentration to result in inhibition and limitation of his choices. Liberty then was the natural state and freedom was only a bulwark erected later, to preserve a certain scope for his independence in choice. Thus, liberty is the prime right.
2 Admittedly this unused or misused energy will not be destroyed, but it will instead migrate to another person.
3 As they channel this conduct in particular directions, they are also restrictive in that they channel conduct from certain directions. However, as Liberty remains the prime right and it is affirmative in character, emphasis should remain on the mandatory nature, rather than prohibitory results in the application, of Natural Law.
4 In the penultimate sentence it is demonstrated that Natural Law is essential to the social order. In this sentence it is demonstrated that Natural Law is essential to the natural order: the world existed before human life; the world in that stage of existence did not expire or devolve into destruction, but rather thrived; a natural order then must have sustained the world; the natural order then must have been sustained by Natural Law; and thus Natural Law predated the social order.
5 These standards were not developed, but rather only identified. For they are not the invention of human intellect but formed by and preexisting in nature, the only function of human intellect being to discover them.
6 While potential surrender is posited here, the theoretical possibility thereof is more complex. This question will be explored later in this Appendix.
7 While Natural Rights are the birthright of every person, they do possess a latent potential toward disorder; this is not their inherent quality but only a product of misuse as the system itself tends toward entropy. The inherent quality of Natural Law is order and, when not obstructed by human intervention, thus operates in tandem with Natural Rights to maintain the integrity of these rights. Therefore the relationship between them is symbiotic, each enhancing and effectuating the other.
8 As each person is imperfect, as well as complex, his various choices will frequently themselves be of disparate quality and effect. This inconsistency will itself produce a certain degree of disorder; but it would be of relative insignificance when the person is operating in isolation. It is when the orbit of the effects of an individual’s actions intersect the orbit of another — and particularly when the orbits of multiple persons intersect — that a propensity to systemic disorder is present. (Despite the deprecation in the first two sentences of this footnote of the significance of disparate individual choices, yet, when isolation ceases, they would have the potential to exacerbate systemic disorder.)
9 Even independent of the influence of randomness, some of the vectors proceeding from a certain point will necessarily intersect some of the vectors proceeding from another point; it is impossible for all vectors from multiple points to be parallel to each other. Therefore, intrusion is an inevitable condition.
10 The term “precepts” is used here in a limited sense, as Natural Justice is applied contextually and thus is inherently relational. Consequently, a set of elaborated, prescribed rules would be an aberration as the contexts are theoretically infinite. Rather, “precepts” contemplates a certain framework for the recognition and application of Natural Justice.
11 The term “Positive Law” is appropriated from, and employed in the same sense as used by, St. Thomas Aquinas in his Summa Theologiae. While St. Thomas’ hierarchy of laws included numerous additional layers, only Positive Law and Natural Law are utilized herein.
12 Acting rightly may or may not yield material benefits to the actor. A direct, personal ramification is not the standard by which to determine righteousness or unrighteousness.
13 It has already been posited that Natural Law is mandatory in character; it directs all people to perform righteously; it only sanctions righteous conduct. A tacit corollary, though, is that it refuses to sanction unrighteous conduct. Therefore, there is an implicit prohibition against unrighteous conduct — even though its explicit principles remain mandatory.
14 This was deemed prudent for, as explained in the text of the essay, the members of the polity — as a result of the deluge upon the community of a profuse volume and novelty of interactions — were suffering increased alienation from the traditional methods of dispute resolution and courses of interaction; more formal tribunals were established, and the persons with whom they interacted were often no longer immediate and direct but rather were often now physically separated.
15 It is to be remembered that a right is the power to initiate or to refrain from action of some type; liberty is the power to initiate, and freedom is the power to refrain. Thus, implicit in and a component of any right is a power. Therefore, even when reference may only be made to a right, it also acknowledges the corollary power.
16 Liberty is the prime Natural Right. Compulsion is inherently anathema to it. Accordingly, for a just society, adherence to Positive Law (excluding consideration of any inveterate malefactors who, by their own actions, have excluded themselves from society) must be voluntary.
17 Different treatment of different classes of citizens could still be consistent with this principle, depending upon the structure of the government. If it is composed of multiple levels with more-extensive powers being exercised by those levels in more-direct proximity to its citizens — such as in the neighborhoods discussed in the text, where there would be greater homogeneity — then acknowledging unique classes within those discrete communities, and exercising different authority over them would not conflict with this injunction against unequal treatment — as the citizens combinations into those discrete communities would be voluntary.
18 If an area has numerous equivalent objects, they will tend to accumulate unattached-substances equally. However, if one of these objects attains an appreciably-greater size, then it will tend to accumulate a disproportionately larger share of these substances. By this,is meant the term “dominant”.

WAYNE A. SMITH
Forester Twp, Michigan USA
08 September 2018

Freedom or Liberty?

Freedom and Liberty are frequently used as interchangeable terms. In this those who do so err.

It is true that both constitute Rights. But these rights are each of a different character, with different ramifications.

Freedom is a passive state, one in which the person has the right not to be circumscribed by external duties, at least within described spheres of action. Those duties to which the individual is not subject can be either mandatory duties, viz, you shall do, or prohibitory duties, viz, you shall not do. The degree of freedom depends upon the quantity and scope of those spheres.

Liberty is an active state, one in which the person has the right to engage in certain activities, at least within described spheres of action. Any duties to which the individual is subject are ones which are only internally imposed, by the individual himself or herself. The degree of liberty depends upon the quantity and scope of those spheres.

Freedom

Freedom and Liberty can exist within the same system and be concurrently available to its member individuals. Because of their different characters, though, they are employed in different contexts and for different objectives.

Freedom is an essential right. It consists of the right to chose what not to do. For certain activities can be detrimental to the individual, either by their immediate material impact or persisting moral impact.¹

However, in comparing it with Liberty, as we shall see, it is more important for the emphasis to be upon Liberty than it is upon Freedom.

Liberty

This is demonstrable since Liberty is not only the right to choose what to do, it also consists, as with Freedom, of the right to chose what not to do. Like as with Freedom, it consists of the opportunity to determine the range of activities in which to not engage — since being compelled to engage in certain activities will obstruct the opportunity to engage in different activities of one’s choice — but also the range in which to engage.

But in what range of activities should one engage? For it is not Liberty to engage in all activities within one’s capacity.

On a reflexive level, some activities appeal to the individual and some don’t; some appeal to certain impulses, some to others. To engage in those which are anomalous to the person and to which he would have a propensity to offer resistance would be to abandon one’s identity and, perhaps, one’s own self. Thus, if one is induced by external influences, rather than one’s own character, to engage in such an activity, the result would be the loss of the person’s liberty.

However, there remains an aspect of Liberty more profoundly significant. It is in the symbiotic relationship of it with Freedom.

For we have already recognized that some activities can have a detrimental effect. These effects can be immediate or persistent. In those which are persistent does danger most lurk.

For engaging in some activities can constrain us from embarking toward other theaters of participation. If then a certain activity or activities are so preoccupying that they captivate a person, one then suffers a loss of their Liberty.

All people are endowed with a certain potential for attainment of productive objectives. The criterion then is whether a certain activity constrains or expands the exercise of the potential for successful attainment of them

While some activities liberate us by activating us toward engagement in further ones, what we choose out of liberty might instead enslave us. The question then is recognizing whether doing something particular harms or inhibits an individual, since if the answer is in the affirmative it is not the exercise of Liberty to do it.

Therefore, True Liberty is refraining from those activities, and rejecting those objectives that can restrain or inhibit us. Thus, a rejection of certain activities or objectives, and a refusal to engage or embrace them, can be Liberty in action.


¹ While the spurned activity is an election by an autonomous consciousness, the impact to be avoided may be one perceived as detrimental not to this particular individual (or at least not solely) but instead to other persons. However, if the danger is the latter, the detrimental impact would concomitantly impinge upon the range of activities otherwise available to these other persons. In this it would potentially impact both their Freedom and their Liberty. Consequently, it would seem that, in order to rigorously distinguish between these two rights, it is suggested that restricting application of Freedom to its impact upon the particular individual is more prudent.

² While the endeavor is usually of an active nature, it can occasionally be of an inactive nature.  For in appropriate situations observation or simply rest may in the aggregate yield expanded constructive attainments.

WAYNE A. SMITH
Forester Twp, Michigan USA
20 November 2017

Discrimination — ANOTHER Misused Word

This will be just a brief comment, parallel to my criticism in other posts of certain “popular” words (such as “common sense” and “hate”).

When I was young, “discrimination” had at least one positive meaning, that when used in the sense of a person with discriminating taste. In this sense it indicated an ability to distinguish being various competing choices and to select the alternative with the superior attributes. This favorable sense of the word seems now to have been wholly abandoned; now it is almost exclusively used to refer to malevolent behavior.

Now it certainly is proper to use this word in a pejorative sense in certain situations, as when it references illegal and, perhaps, immoral, discrimination; in those classes it would be most improper not to use it. But it appears it now usually is used in a much broader sense, to castigate actions of someone who makes any distinction between various persons or classes of persons.

Yet we, in minor and major manners, beneficially or injuriously, discriminate daily. We do this in selection of food, roads or areas to travel or not, items to purchase or not and a myriad of other choices. We do this also in imposing restrictions on particular persons or classes of persons, be they convicted felons, minors at certain ages of 16, 18 or 21, nonresidents for voting and a plethora of other examples which it would be too exhausting to catalogue. Still, these pervasive instances of appropriate and necessary discrimination are ignored by certain people who prefer use of a broad brush in application of this term to selected situations which offend them.

It is my assessment that there is a current prevalent propensity for a substantial proportion of the populace to make superficial and precipitate assessments — to ignore, or even fail to perceive, nuances. This is a most dangerous proclivity, for it constitutes an abandonment of the discipline, and perhaps even capacity, to employ discernment in evaluation and decision.

I acknowledge it may be facile to compare the frequency of absence of discernment and the prevalence of use of the term discrimination. Yet might there be a connection?

Thought frequently (or should) involves the development of mental systemization, to a certain degree at least, in observing and assessing various objects or actions. Methodology economizes analysis. The rub is when the methodology is defective. One more fatal is when methodology is absent.

Precipitate categorization is an absence of methodology. But cannot this become a methodology itself? — a systematized rejection of discernment. For the converse of studied analysis is the failure to engage in it.

Broad use of the term discrimination to critique and admonish any distinction by someone between persons or actions is but one instance of this failure. It is a rejection of the methodology of discernment which must be reversed. If we continue to fail in this regard I can only regrettably project an intensifying polarization with catastrophic results.

WAYNE A. SMITH
Forester Twp, Michigan USA
16 October 2017

The State of Primordial Mankind

[This is to be considered a “work in progress”. As indicated by the designation of chapters, it will be supplemented and possibly be the basis of a more-extended work. However, as its development has been in progress for awhile, it was deemed preferable to publish the initial portion, with which the writer is presently sufficiently satisfied, and then to supplement it as he becomes satisfied with the later chapters.]
[Subsequent to my posting of the above explanation, the following text has been revised and incorporated into, as well as expanded by, my Interstice Amid the Fabric of Life / Volume 1 : The State of Primordial Mankind, published in both paperback and Nook® ePub or Kindle® ePub formats. Accordingly, no further additions will be made herein to the following.]

 

INTRODUCTION

At its origin Civil Society was circumscribed and defined, but these attributes have long since dissipated.

As Civil Society developed it became less circumscribed and more complex, albeit with definitions within the complexity. Eventually though — as with all complex systems operating within every sphere of existence and experience — it was doomed to suffer deterioration. This essay is an endeavor to trace this development.

While it is possible with justification to assess that Civil Society is now spiraling into chaos, by necessity no record exists of it at the outset; therefore much of this survey must be a matter of speculation. Yet not infrequently it is possible to arrive at sound conclusions by relying upon and utilizing rational hypotheses emanating from a background of knowledge, sufficient in breadth and depth, of behavior and propensities despite the absence of verifiable data with which to pursue a deductive methodology.

The following then is consequently believed to constitute a fair, defensible outline of these processes. Civil Society emerged, evolved and metamorphosed. During this process Government emerged and interposed between the factions of Civil Society to ameliorate the consequences of friction, and itself evolved and metamorphosed. And while some benefits were yielded during these processes, neither metamorphosis now constitutes a specter to behold with anything but trepidation.

Perhaps this review will assist in identifying those attributes that should be reinvigorated or, if necessary, restored and those features which should be jettisoned.

 

CHAPTER 1

THE INCEPTION OF CIVIL SOCIETY

 

Initial Habitation

Every geographical region on Earth is composed of numerous localities. The original locality is theoretically occupied first by a single individual. However, leaving aside the question of the origin of the occupation by the earliest individual, the reality of his presence would have been extinguished but for the production of progeny through the presence also of a mate; for without the production of progeny, or the presence of other persons upon whom he could have had an impact of some nature, his status would be as if he had never existed. Therefore, each inhabitable locality is necessarily populated initially by a single family.

However, unless the family produces, and becomes the core of, an extended family, it will suffer extinction; therefore, expansion of the core family is requisite. The expansion of the family requires introduction of external members by one of two methods: one, a solitary individual or individuals who voluntarily or involuntarily depart from another locality and encounter a core family; or, two, the migration of another unitary family from its own locality and its immigration into the habitat of and its fusion with the core family. (These scenarios ignore the possibility of a hostile, forcible invasion by a predominantly-superior extended family or group of extended families, since the resulting displacement would require tracing the invaders’ posterity rather than that of those who were invaded.)

 

Extended Family Development

The differences in the occasion for development of the extended family betokens potential differences in whether its culture remains static or experiences mutation. In general, though, it would seem the tendency should be similar.

The solitary individual or individuals will be expected to be subject to psychological insecurity, at least to a certain degree. Even if he has certain aggressive tendencies, regardless of whether this condition resulted in his expulsion from his previous locale or provided the motivation for his voluntary departure due to vexation with a contentious environment, he nevertheless is in a state of isolation; thus, he will necessarily be susceptible to real or perceived threats. An individual or individual without these tendencies will even more be in such a state and even more be susceptible. Moreover, by virtue of being solitary, he will be in a numerically-inferior position.

Further, by virtue of the same solitary status, he is unsupported. Consequently, the capacity to secure his necessary resources and perform the essential support functions is less than that of a unitary family. Thus, he will be expected to be subject also to material insecurity.

Consequently, the normal tendency will be for him to be susceptible to and subscribe to the culture, mores and support of the inhabiting family. For by doing so he will escape those insecurities.

While not as consequential, it would seem an immigrating unitary family will tend to be subject to the same influences. Their wandering and consequent lack of a home locale will engender a similar sense of psychological insecurity, though offset somewhat by the recognition of being supported by the other family members; contrariwise, if each member of the immigrating unitary family exhibited this sense, then it could reinforce that of each other and thereby magnify the group insecurity. Confrontation by a residential family could accentuate such a sense, as the latter might be more apprehensive of the immigration of a unitary family than by an individual, express a greater degree of hostility (or, at least, a less degree of receptiveness), and thereby induce a reciprocal anxiety and trepidation.

By virtue of being a unitary family, it would have a presumptive capacity equivalent to that of the residential family to exploit the resources of the locality. However, due to its lack of equivalent familiarity with the nature or location of those resources, the residential family would still prevail in this regard. The level of confidence then would reside with the latter rather than the strangers.

Further, as the residential family might have already experienced the immigration of an individual or individuals and the absorption of it or them therein (though, by definition, this would be the residential family’s first encounter with a unitary family), the residential family might well be more numerical than the migrating family and thereby impose a defensive posture upon the latter. Therefore, similar to the immigrating individual, the new unitary family would be inclined to be submissive toward the residential family, and thereby more inclined to adopt its culture and mores.

There would be instances in which the culture and mores of the immigrating unitary family would predominate. One prominent circumstance might be if the members of the immigrating unitary family had inordinate strength and skill capabilities; this might compensate for the potential numerical superiority of the residential family. It might also have latent aggressive tendencies, which while negative for an individual’s success, could be positive for the larger family assemblage, and could allow it to prevail over the residential family. And the latter, by being sedentary, might have developed greater passive tendencies.

Accordingly, the immigrating family might have the capacity to impose its culture and mores on the residential family. But this would be as a result of force rather than suasion; and such a result would produce an intense environment that could well lead to the destruction of the new unit and its ultimate replacement in the locale by a more durable unit. Therefore, in most situations of continuity in the inhabitation of a particular locale, the general propensity would be for the residential family to enlarge, retain its original culture and mores, and, by protraction, reinforce and perpetuate them.

 

Geographical Expansion

Initially, the flora and fauna in the locality should be sufficient to support the residential family, and, in fact, may flourish and increase. As the family expands, it necessarily initiates the depletion of both flora and fauna resources in the primary locality, though for awhile it may remain in equilibrium with the extended family. Eventually, though, the degree of depletion will be insufficient to support all members of the extended family. Consequently, its geographical range, through the expansion of the periphery of the extended family, then will radiate into a contiguous locality.

The rapidity of this expansion is a function of the wealth of resources in the appended localities, the velocity thereof being in inverse proportion to the volume of those resources. In the event of substantial resources, there is a propensity toward greater extended family density due to the availability thereof. In the event of inadequate resources, there is a propensity toward dispersion into further additional localities.

These expansions then are the result of two (2) factors: one, the physical need for sustenance and materials for shelter from the elements; and, two, an intellectual disposition to investigate and explore. All species have an inclination to utilize the unique capacities with which they are endowed, as these are features with which they are innately familiar, have experienced success in employing, and therefore are motivated to exercise. As mankind is endowed with greater mental capacities than other species, there is an enhanced propensity to utilize this capacity. Thus, curiosity alone would motivate their investigation and exploration of further localities and of what they might consist. This conclusion that primary mankind is endowed with innate curiosity is demonstrable, with his exploration of and expansion into these contiguous localities being just one indicator thereof.

Moreover, the extended family has become accustomed to, and developed habitual practices of, investigation, even if albeit of a rudimentary rather than systematic character. Thereby is its disposition to investigate and explore reinforced; for the influence of an inherent quality can be supplemented by a parallel cultural trait, and thereby enhanced. These dispositions will soon become most material and crucial.

For this expansion by the extended family ultimately results in it advancing into contact with other unitary families or extended families. Whether the latter is a unitary family or extended family will depend upon the longevity of the unit, with both its volume and the resilience of its culture being in direct proportion to its longevity.

In the event of an extended family encountering a unitary family (and hence a unit of relatively-short longevity), there will be a tendency for the unitary family to be assimilated by the extended family, for the same reasons an individual is incorporated into a unitary family. In the event of an extended family encountering another extended family, no such dynamic is likely to operate, either initially or even after an extended duration; for by virtue of their extended family status they each will have acquired longevity and hence display resilience.

These extended families, rather than being repelled by the strange and unknown, are disposed to tentatively interact and familiarize themselves with each other; this process results in each becoming aware of differing, or the possibility of the reinforcement of their equivalent, capabilities. Either would benefit both, since differing capabilities will expand the scope of their commodities whereas equivalent capabilities will increase the volume of output. In the event of such complementariness, recognizing then their mutual self-interest through combination, these families potentially become a symbiotic community.

 

Emergence of Neighborhoods

The extended families begin cooperation by virtue of recognizing, and upon the basis of, mutual self-interest. Otherwise they may remain, except for those areas of cooperation, relatively-isolated. However, if they have or begin to develop sufficient self-identifying characteristics, they might become a neighborhood; this would not cause or betoken the elimination of all cultural or mores differences, but rather only an identity upon those cultural or mores characteristics that would be present in those instances of regular interaction.

Upon first contact it would be expected that the extended families each would establish or maintain secure perimeters for their separate territories: if the contact was by virtue of each expanding their peripheries into new localities, then the effect would be for each to arrest those perimeters at contact; whereas if the contact was by virtue of a migrating extended family encountering a residential extended family, then the former would sequester its settlement, around which it would establish its perimeter. Preliminary contact would only be through envoys, after which more general intercourse might become regular.

Inquiry by the envoys enables a preliminary assaying of similarities or complementation of cultural and mores. However, since the envoy is necessarily limited in the scope of his knowledge and the time which can be expended in observation, general intercourse is requisite for proper appreciation of the possibility of compatibility. The inherent trait of intellectual curiosity will be expected to result in such general investigation, as the members of each extended family will be aware of the presence of the other unit and will not be restrained in pursuing their own efforts simply because of the inquiries of the envoys. However, if the envoys, or one of them, are firmly convinced of patent incompatibility, then this has the capability to obstruct and even bar any general intercourse.

A determination of such incompatibility then can be expected to generate an attitude of hostility between the extended families, each (or at least one) fearing for its safety. Such an attitude likely would have the general tendency to produce conflict and the destruction or assimilation of one of those families. The prevailing extended family would generally be the most aggressive one thereof.

However, if the extended families, through these regular interactions, displayed common or complementary characteristics, then there would be a propensity for them to together form a discrete neighborhood.

 

Chapter 2

Elaboration of Neighborhood Structures

Introduction of a family into a locality, and then its growth into an extended family, has already been discussed. We concluded with recognizing the potential formation of a neighborhood from these extended families. Let us now begin to explore the nature and development of such an incipient neighborhood, its encounter with another neighborhood, and the interactions — some constructive and some destructive — between them.

Isolation Stage

Each neighborhood is initially compact and discrete. However, each will regularly experience population accretion, whether internally or from migration or both.

The usual impact from internal accretion will be to maintain the cultural homogeneity of each extended family therein, as the characteristics of each will tend to be adopted by its new members. This ought not to affect the cohesion of the neighborhood since any potential conflict due to differences between the extended families were already resolved at the time and by virtue of the formation of the neighborhood — and thus the addition of new members to one of them would not insert dissonance.

Nevertheless, the propensity to maintain cultural homogeneity will usually apply also to migration accretion as the normal tendency will be for the migrants to adopt and embrace the characteristics of the original population rather than for the latter to adopt those of the former. This is projected to proceed from two causes: one, the inertia of the original population, resulting from its longer tenure, and its inherent property of resistance to change and adaptation; and, two, the greater numerical size of the original population and the inclination of the migrants to adapt to avoid conflict.

However, there is a different dynamic in operation in the case of migration accretion than in internal accretion, or at least in the case of migrating extended families. The resident extended families already occupy the physical terrain of the neighborhood. Therefore, the migrating extended family will be required to occupy territory along and outside the current periphery, thereby also expanding the neighborhood’s periphery. By necessity this new territory would be adjacent only to one or a limited number of the resident extended families and isolated from the balance.

As noted, the migrating extended family, for many reasons, is in a less-advantageous and less-secure condition. Therefore it will normally select territory adjacent to the extended family whose culture and mores it deems most compatible. This then will potentially cause a latent disequilibrium in the median culture of the neighborhood. And in the formative years of the neighborhood, when it is composed but of a few extended families, it would seemingly have a disproportionate impact and could then lead to dissonance. Yet, since by definition there are but few extended families, the likelihood of irreconcilable discord is reduced as the heads of the extended families then have the greater opportunity for constant communication and thus the greater capacity to directly resolve any possible strife.

In either event, there will be a constant expansion of the number of members of the neighborhood and consequently of the territory occupied by it. Thus the periphery of the neighborhood will be in constant flux and constantly expanding.

This dynamic will occur in all neighborhoods. Ultimately, then, the peripheries of a neighborhood will impinge upon those of another.

Cluster Stage

At this early stage of inhabitation there will be few non-natural obstructions to a given neighborhood in its quest for additional resources. Therefore, the density within each neighborhood will be low. And, as this is but the early stage of inhabitation, the density in the locale in which a given neighborhood is located also will be low. Thus, the inertial force of the neighborhood is toward expansion. Contact then with other neighborhoods is consequently inevitable.

These neighborhoods to which a neighborhood eventually would become adjacent might be ones which display minimally-varying, or might instead display radically-differing, culture and mores. It is indisputable, though, that they will vary and be different.

However, because of the low density in the locale and within each neighborhood, they need not impinge upon each other nor initiate intercourse — even though there accordingly would be minimal obstruction to infiltration into these adjacent neighborhoods. Therefore, there will be minimal perception of challenges or threats to a neighborhood by one in proximity to it even if their respective culture and mores are radically different.

Still, because these neighborhoods would be contiguous, various interaction between them, by virtue of, and upon the basis of, mutual self-interest would be present. This would occur despite the existence of those differing culture and mores that are observable in cases of regular interaction; other differences would abide but would not be revealed in the course of common interaction, and thus would be isolated from corruption and rather preserved. Rather, curiosity being an inherent trait, the interaction would be enhanced because of these differences, as the members would each be stimulated to explore these differences. The existence and maintenance of these differences then would not only not inhibit but would intensify these interactions.

The existence and maintenance of these differences would yield a further benefit. Recognizing their distinctness would imply the value thereof. This should then result in an enhanced self-esteem of the respective members. Such then would lead to greater psychological self-confidence. And such self-confidence would enable greater interaction with other families and neighborhoods, including those, who by definition, would display differing characteristics. All of these factors would reinforce and perpetuate the distinctive culture and mores of each.

As the neighborhoods increase in population density, there would be proliferation of the variety of skills that could be employed in each neighborhood. Further population density would result in specialization within each of those skills. However, in the primitive stage of development, the absence of technological sophistication — technology being used here in its broadest sense, including learning how to start fire with sparks or friction, sharpening stone to form an ax head, identification of edible flora, and the like — would impose a limit on the extent of specialization. Rather, the advance in specialization would be gradual, with each development reaching a plateau at which it would repose for an extended period until a new technological introduction would allow it to advance to a new prolonged plateau.

Thus, during this primordial state, there would eventually be intense, or even fierce, competition between the contiguous neighborhoods due to these conflicting and limited skills. As only limited production from each’s efforts was possible in this primeval state, the resources available would be limited and the relationships between the neighborhoods would be inimical. Disputes would be constant and numerous, and mechanisms to resolve them or propitiate the participants necessary.

Yet the neighborhoods would still be of a limited geographical breadth as well as formed of a limited number of extended families. The most influential extended family in each, and the head thereof, would be known to the other, or at least known by the head of the leading family of each. Therefore, contact, communication and discussion between them would be without complication. Since these competitions and disputes would be adverse to their interests, these extended family heads would form an informal council, to meet sporadically or regularly (depending upon the size and extent of their neighborhoods), to resolve these disputes and eventually set policies to minimize or avoid them in the future.

If this council was successful in these efforts, then a Community of these neighborhoods might be formed. Such a community would not necessarily result in a blending of the culture and mores of the neighborhoods. Rather, since they would be liberated, to a greater or lesser extent, from disputes and animosity between them, they would be free from external aggravation and free to focus internally.

A peaceful relationship between the neighborhoods in the community would tend to result in an enlargement thereof as resources on contests between them would be redirected toward more constructive use, and thus a more attractive locality within which to reside; regardless, the peaceful environment would encourage, or at least eliminate an obstruction, to the greater integration of the community. Thus, an evolution of the council into a formal governmental structure, consisting of separate dispute resolution and policy making bodies, might transpire; such an evolution would be expected to normally occur since any body once formed tends to be possessed of an expectation that it has functions to perform and an obligation to deliberate upon the institution of additional mechanisms to perform those functions.

Eventually, perhaps as a consequence of the elimination of strife as a distraction, technological sophistication would proceed to a “takeoff point” where periodic prolonged plateaus would no longer be necessary or occur. The types and quantities of improvements would proliferate on a geometric basis. Further, as a result thereof, the resources available to the community, and each of the neighborhoods thereof, would likewise proportionately magnify.

As a consequence the conflict between the neighborhoods would diminish, as each (or the majority) of the families would have virtually sole recourse to their own specialized technology, and derivatively greater household resources. Conflicts likely would persist for the most affluent extended families, with each head thereof seeking prestige from his material acquisitions, but these would seem to be beyond the purview of the conflict resolution or policy making mechanisms, would be of little moment to the vast majority of families, and would be resolved again on a bilateral basis. Thus, many of the mechanisms for resolving conflict might be capable of being abandoned and the governmental structure shrunk.

We have in brief considered the development of a neighborhood, its encounter with another neighborhood, and some of the impacts upon and consequences to each as a consequence. Now it is appropriate to explore further neighborhood interaction and possibly consider a different focus.

 

Chapter 3

A Macrocosm Perspective:

Cooperation and Conflict between Neighborhoods

Treatment has been given to neighborhood formation and development, focusing on the microcosms of neighborhoods. These developments though did not occur within a vacuum, but rather as but one component of activity within the larger framework of an entire region. Thus, since those neighborhoods would be impacted by parallel activity within the region, it is necessary now to embrace a broader vista, from a macrocosm perspective.

Cooperation or Conflict are the polar dynamics for interaction between neighborhoods in contact.¹ The direction to be adopted by these neighborhoods will be a function of their respective cultures, resource environment, and neighborhood mores.

Cultures / Diversity or Homogeneity

The peripheries of contiguous neighborhoods will necessarily ultimately experience collision. And because of the likelihood of clash between the cultures of each, there will be a likelihood also of conflict. Nevertheless, after the initial collision, as a consequence of the separation in distance of each periphery from its core, there will be a propensity of these contiguous peripheries to homogenize. This will be the usual result regardless of whether there has been homogeneity between a periphery and its respective core. Thus, viewed solely from the perspective of the peripheries, there exists a dynamic toward reduction of cultural diversity.

Restricted Geographical Region

However, this dynamic would preponderate only in a region that is constrained and confined by peculiar geography. Because of those constraints, only a limited number of neighborhoods would be possible and their separate origin generally would have developed in relative close proximity to each other. As a consequence there would exist a tendency for parallel cultural development and a narrower diversity range.

In addition, as the region would be limited in size, it would also, except for extraordinary circumstances, be limited in resources also. Consequently, the earlier-noted potential for radical cultural adaptation due to enhanced, and aggressive, migration accretion would be minimized. Due to both of these factors there would remain a predilection to stability, both in cultures and cooperation.

Open Geographical Region

In a region of greater geographical expanse, there would be a greater likelihood of neighborhoods developing with sufficient separation between each other. In addition, because of this greater expanse, there would exist the potential for a constant increase in the number of independent neighborhoods being developed. Both factors would enhance the possibility of broader cultural diversity.

A possibility would exist for at least some of these neighborhoods being developed without great separation between them. Yet, as each neighborhood expanded, there would be a necessary greater demand upon the resources available to it. When the resources would become too scare for the population of the neighborhood, then there would occur emigration of some of the families from it to new areas. And, as the scarcity of resources was the catalyst, there would be a predilection for the emigrants to locate themselves at a sufficient distance from any other neighborhood by utilization of the unoccupied expanses, thus also being a propulsion toward exploiting and realization of this potential for a proportionately larger number of neighborhoods.

Admittedly, the potential for homogenization when neighborhood peripheries collide would still be present. But inherent in the larger volume of neighborhoods is also the necessary corollary of a larger volume of neighborhood cores. And as the cores are intrinsically separate from each other core, there would be minimal external forces toward adaptation. Therefore, since a constant increase in the number of neighborhoods would yield also a constant increase in the number of cores, there would result both a greater variety of different cultures, these being maintained within each additional core, and the maintenance of the diversity of these different characteristics.

Resource Environment

The effect of the scarcity or abundance of resources has been briefly mentioned. It should now be more fully considered to identify any possible aberrations from this effect.

If a particular neighborhood was rich in resources, it could experience a dramatic migrant accretion, thus reversing the inclination toward cultural inertia. This could proceed from the expectation of the enhanced aggressiveness of the migrants, due to their avidity for these resources, and the corresponding greater numerical volume thereof. Thus, the homogenizing influence from the original population — or, stated differently, the strength of the inertia effect — will be in inverse proportion to the volume of the migrant accretion or the enhanced radius of the neighborhood due to this accretion.

Nevertheless it would seem that such a scenario would only likely develop if the resources of the neighborhood were uniquely rich, relative to those of the contiguous localities. For in this primordial state where there is low density of inhabitation, any locality would tend to have sufficient resources for one or a few extended families. The incentive then for aggressive migration would be minimal.

In the unusual event of any undue scarcity, this would result in migration, with the migrating individual or family, who would be subject to the aforedescribed dynamics, being in a passive posture. Accordingly, the norm for the aggressiveness of these immigrants or emigrants would usually be inconsequential.

Avidity for the resources of another, then, would require either a more-advanced state of development or a patently-demonstrable substantial disparity in resource allocation. One or the other is a precondition for greed.

Absent one of those conditions, any desire by the migrating famil(ies) for the enhancement of their current resources would present two conflicting factors: their coveting of the resources of another; and the abhorrence of potential destruction, given their (by definition) inferior power, and hence aversion to conflict. This being so, it is to be expected that in the usual context the latter consideration would be of greater weight than the former, and that the migrating family(ies) will experience cultural assimilation.

From this we can conclude, then, that as long as the aggregate resources within and between localities remained of a sufficient volume to satisfy the necessities of the various neighborhoods, then the dynamics toward cultural diversity would continue to exert their influence. However, once these aggregate resources became sufficiently depleted or the population too large for them, then a clash of the cultures would unavoidably ensue. Such a clash would result in the destruction of some of these cultures or at least a radical reduction in their strength. Also, as history demonstrates, once cultures clash there is a lamentable tendency for each to adapt to, and often incorporate the worst characteristics of, the other. From both influences there would now be a potential for diversity to suffer.

There seem to be some conclusions that could be deduced from the foregoing. Since a restricted geographical expanse would seem, at least initially, to be an anomalous environment, there would be default tendencies toward:

  • conscious efforts toward segregation of the neighborhood from those in proximity
  • increased inhabitant density of the neighborhood as a consequence of the segregation policy
  • an above normative level of cultural disputes
  • a below normative level of economic disputes
  • a below normative level of technological development
  • an above normative variety of mores structures

The grounds for those conclusions are:

  • the disparity between the cultures of the respective neighborhoods, resulting from their independent development, would motivate each neighborhood to insulate itself as much as possible from the perceived possible corruption by the other neighborhood
  • as the neighborhood would endeavor to secure an enhanced insular status, it would as much as possible avoid expansion that would result in closer proximity, thereby necessitating increased inhabitant density
  • due to the disparity in cultures, there would be an increased tendency toward cultural conflict
  • both because of their early stages of development and the effort to avoid geographical proximity, there would be reduced appropriation of or at least immediate access to the localities within which are deposited the region’s material resources
  • as there would be less interaction between the neighborhoods, technological development would not have the benefit of efforts in concert but would be independent
  • due to the below normative level of interaction, there would be less occasion or reason for adaptation of a neighborhood’s mores structure

For awhile these tendencies, particularly because of the fourth (4th) and fifth (5th) influences, would be extended in time. The differences in mores structures and above normative level of cultural disputes would reinforce the disinclination for resource exploitation and reduced economic development. Eventually, however, this persistence would dissipate.

For expansion of the neighborhood peripheries would be inevitable, as would be the necessity of utilization of an increased volume of resources. Concomitant with these circumstances would be accelerated technological development.

Accordingly, there would be resonance of these conditions with the propensity of diversity to suffer as a consequence of physical clashes between the cultures. Yet, the potential for abbreviation of cultural diversity could also be instigated by other causes. One concluding instance of those causes should now be considered.

Neighborhood Mores

During the early stages of occupation the inhabitants of each neighborhood in a region are isolated from the other neighborhoods in the region. Even after augmentation of the inhabitants of the neighborhoods they nevertheless remain in relative isolation. Therefore, their behavior, and the mores that are the foundation of this behavior, of each set of inhabitants develop independently without restriction upon or impact by the behavior or mores of proximate neighborhoods.²

As the neighborhoods expand into contact with their proximate neighborhoods, then occasion arises for critiques of the behavior and mores of one by the other. These critiques are the product of the mores of the observer being offended by what is perceived to be the aberrant behavior of those being observed. Their expression of their resentment both promulgates and reinforces their own set of mores, and has the potential to impart a reforming influence by compelling the offender to analyze and reexamine the justifiability of their set of mores and, if necessary or appropriate, the refinement and embellishment thereof.

Nevertheless, since only an accumulation of these critiques will instigate such a possible reformation — due to the effect of psychological inertia to maintain tradition and accepted norms — occasional conflict results therefrom. If the conflicts become sufficiently frequent or contentious, then the neighborhoods are induced, as alluded to in the preceding chapter, to form a council composed of the heads of the largest families to resolve these conflicts. Thereafter, of which brief allusion has likewise been earlier made, further elaboration thereof would be expected to occur.

Those anticipated developments are then to be treated in the next chapter.


¹ While this contact is usually due to, and almost always requires, intimate physical proximity, there theoretically could be a significant geographical distance or obstacle between them if there nevertheless is sufficient functional interaction.

² Mores refers to a unified set of group values, manifested by their interactive, group behavior. In contrast, Culture refers to a compounded set of overt behaviors, combining a variety of solitary behaviors.

 

WAYNE A. SMITH
Forester Twp, Michigan USA
28 September 2017

Preservation or Removal of Confederate Memorials — or More?

The issue of Confederate Memorials appears to be a controversy that just will not go away. My perception of the danger in the issue is the potential indirect ramifications of the “methodology” of those proposing their removal.

In one sense, perhaps all statues should go. All three religions of the Children of Abraham eschew envisaging, be it vocally and/or visually, the Divine. Is it not the definition of hubris to apprehend that any mortal is more entitled thereto?

Yet certain mortals have registered a sufficient impact on the past, and possibly even continue to do so during the present and will so into the future. This impact might be for good, for ill, or for a combination thereof. In this event, recognition of this impact, if it is accompanied by genuine analysis and assessment, is salutary. And a visual image of those mortals can be beneficial as providing an occasion or catalyst to do so.

In warranting this determination, we should consider two premises which seem justified: one, there is in knowledge, as there are in all capabilities and capacities, inequalities, with certain persons necessarily having more knowledge than another in certain areas; and, two, (I am becoming satisfied) one of the qualities in the human psyche is an innate curiosity and propensity for investigation (albeit of differing sophistication and value). Accordingly, certain persons can be concluded to have an enhanced ability to recognize the virtue or value of certain persons and ideas in history. If they then have memorialized them in some tangible fashion, should we too casually disregard and discard their decision and expression? Further, hypothesizing the existence of these memorials, an observer (be it many, some or few) will at least occasionally have an inclination to investigate farther its subject to determine whether it represents good, ill, or a combination thereof.

Regrettably many now appear to be too addicted to impulsiveness in assessment, the expression of opinion on complex issues in 140 (or even 2000) characters, or, occasionally, the hysteria of the crowd. If some too frequently and unconsciously employ — or, worse, countenance an inclination by others toward — such an approach, will this “methodology” not, by persistent repetition and reinforcement, become the acceptable routine and common perception?

Instead we should be attuned to the nuances in the behavior or ideas of another. And the aforesaid context certainly is not conducive to appreciation of those nuances, as assessment requires intensive and objective examination.

Enter the controversy about statues of Robert E. Lee. ¹ (While some may question my following claims, I am sufficiently confident, based upon my studies (beginning in the 1950s) of the Civil War, its prelude and its aftermath, of the justification therefor.) While there is little doubt Lee was no Abolitionist, it is more than specious to claim he was an advocate of Slavery, much less (as one misguided journalist asserted) a “White Supremacist”. In addition to the potential anachronism in attributing the latter characterization to General Lee — as well as the amorphous nature and metamorphosis of its definition — there is a paramount difficulty in applying an accepted definition here since, in a paramount sense, the vast majority of Americans, both North and South, during the Antebellum period likely could be so characterized. (For example, could not the support of Abraham Lincoln for policies encouraging colonization by freed slaves be deemed a form of White Supremacy? And certainly the attitudes and policies of much of the Antebellum North, as described by de Tocqueville, were consistent with such an arguable designation.)

Rather, then-Colonel Lee’s anguished decision to resign from the U.S. Army, and throw in his lot with the Commonwealth of Virginia, were a product of his paramount loyalty to his native soil. For we must recall, in appreciating this dynamic, that despite occasional earlier egregious flaunting in observation of the U.S. Constitution, the Antebellum United States still generally recognized that default sovereignty resided in the States rather than in the limited general government, possessing only enumerated powers. Hence, loyalty to one’s State, as opposed to a distant government of less than seventy-five (75) years vintage, was not abnormal if not rather expected.

Thus, was there not an issue here that bears relevance to the current day? Is not the question of Federalism, and the proper allocation of powers and functions between the respective governments, still a salient issue? Ought not those interested in this question — and particularly those who deem excessive accretion of power by the general government — consider that, among other reasons and incentives of course, remembering and studying Lee could attune people to an extended and productive dialogue thereon? ²

Regrettably the addiction to impulsive and superficial assessment seems rampant and endemic. Rather than careful examination, there is frequent mischaracterization and misstatement. (But one of these, noted more than once, is that Lee was the “commander of the Confederate Army”, a claim that would have been news to, among others, P.G.T. Beauregard, J.E. Johnston and A.S. Johnston. By doing so not only is there an effort to more inextricably, and inaccurately, link Lee with the primary cause of the Confederacy’s existence, viz, slavery, but to conceal his confinement to the Virginia Theater and thereby the very factors of State loyalty and the Federalism issue.) By these corrupted narratives the authors, intentionally or innocently, tend to drown out legitimate conflicting considerations and arguments.

One might limit one’s objections to this treatment by an unjustified focus on the blemishes of a certain person of history — for all mortals have had, do and will always have blemishes — rather than considering also their virtues, or to the subordination of the ideas which they espoused. But, in addition to remembrance of those virtues and ideas by these memorials, there appears to be an additional reason justifying their preservation, though perhaps of a counterintuitive nature.

It has been commented that some, perhaps even many, of these Confederate memorials were raised for ulterior motives such as buttressing a White Supremacy environment or glorification of “The Lost Cause”. Thus, with discrediting of these motivations, then, it is argued, there is justification for removal of them. With the premise of the reasons for erection I could concur, at least to some of those memorials, but with the conclusion I cannot.

For some of the persons represented deserve to be remembered. More importantly perhaps, the existence of these memorials provides evidence of the sentiment behind their raising and consequently the state of mind of at least a significant amount of the populace at the time thereof — for they were raised in the context of their times and they provide evidence of this context. Therefore, preservation of them allows the occasion for conservation and studying of the public perception at the time, and thus enhances understanding. To the extent that it is believed, justifiably in many cases, that their negative impact be ameliorated, solutions exist, such as literature, placards or other devices to objectively describe and discuss the environment at the time, reasons and sponsors for the memorial, to minimize any honor to their subjects that might be undue.

[Critics have suggested a parallel between the unanimous or near-unanimous support for the absence or removal of statutes remembering persons identifiable with evil, such as Adolph Hitler, Josef Stalin and Saddam Hussein. While Evil may be an intangible difficult to describe (similar to the problem with defining and ascribing Hate in certain situations), there can be little dispute that it exists and can be justly attributed in certain situations and to certain persons; certainly those individuals qualify.

Other situations and persons are more questionable. How would one distinguish? Perhaps it would be on the basis whether a monument was raised in an actual or tacit public support environment or instead, in a dictatorial-command environment. Yet, even in the latter environment, perhaps preservation in some instances could be justified since they still would evidence the state of mind of these individuals who commanded their raising. And similar devices, such as above suggested, could ameliorate and counter any perceived honor being afforded them.]

I believe the above suggests a variety of reasons that justify opposition, at least in selected situations, to a possible juggernaut for removal of these memorials. But the primary reason for opposition is the objective of obstructing and arresting the mentality of the juggernaut itself. For I perceive this mentality, as opposed to its immediate objectives, to constitute an existential danger.

Many perceive, in an unreflecting way, change to be a virtue, a progress away from vice. I do not.

While the social implications of the Second Law of Thermodynamics are not irrevocable, as conscious effort can temporarily reverse decline, the tendency, especially in concentrated polities, is toward disorder and ultimately chaos. Only conscious effort, in carefully examining what has proven to be valuable and worthwhile and what can be projected to be dangerous in its replacement, can reverse it.

Regrettably, what we seem to have presently, at least as demanded by the most vocal and most publicly reported to the exclusion of contrary voices, is the opposite of careful examination and consideration. And history has frequently demonstrated that hysteria can develop a momentum of its own, destroying all in its path. Current technology unfortunately simply accentuates this potential.

Certainly not all who hold a position contrary to mine are unreflective or have positions without some merit. But a mob mentality can override and crush even those who seek to direct and control it. And here I perceive that there is a demonstrable herd mentality that, feeding upon the current horrendous polarization, can lead to a destructive stampede, trampling ideas and institutions which deserve preservation.


¹ The focus of these comments are limited to Robert E. Lee. At the other extreme is, say, Nathan Bedford Forrest, for statues of whom I would find opposition to removal highly-difficult to justify. (While a superior military tactician, I am unaware of any other qualities about him to admire.) As to other political or military leaders in the Confederacy, I would find it necessary to analyze them on a case-by-case basis as to whether they had any “socially redeeming qualities”.

² Moreover, the virtues of Lee’s private character justify study and, in many cases, emulation. I have however focused here on the public facets and perception.

 

WAYNE A. SMITH
Forester Twp, Michigan USA
21 Aug 2017

Limitations of Science

[The below consists of a comment by the writer on The Volokh Conspiracy blog on a posting about today’s “March for Science”.]

While I have no essential difficulty with the concept of “evidence-based policy” — ignoring for the moment the intractable problem of capacity limits on apprehension of evidence, the accurate measurement thereof, and the interpretation of this data — it seems to me the real questions consist of:

One, what policies ought to be addressed, and,

Two, if it is decided that a particular policy ought to be addressed, how is it to be implemented; a subsidiary question to the latter is who is to implement it.

A wide swath of issues and problems are a constant feature of existence. However, does this mean that a uniform policy ought to be formulated to address any specific one? Ought not some be deferred or avoided simply because they are beyond the capacity of mortal minds, or as they involve such conflicting values or considerations that any policy is unfeasible?

Even if there is sufficient concord that a specific problem ought to be addressed by a particular community, there remains the question of which facet of the community ought to address it. Climate Change might be a good example. While I fully concur that excessive human activity necessarily has a deleterious effect, might not the best solution be individual, rather than concerted, behavior to restrict one’s unnecessary activities? A perception that the existence of a problem automatically necessitates the formulation of a policy to solve it is the threshold for oppressive centripetal interference in all areas of life.

Finally, there always remains the issue of the hubris of certain science advocates. It appears to me that many may be excellent technicians but are unaware of the very nature of science, perceiving it as some vehicle for identifying Reality or even Truth. (While announced in a different context, with a different meaning and for a different purpose, Pilates’ famous question of “What is Truth?” is a thought of continuing relevance.) Even Reality is a chimera subject to constant metamorphosis.

It seems that many of these proponents have forgotten that the scientific process is to constantly search for and identify new data and to formulate an hypothesis that comprehensively and accurately explains this data. It is a process, and for a purpose, that is much more humble and modest than to Discover Reality — unless one adopts a definition of Reality that is itself modest.

WAYNE A. SMITH
Forester Twp, Michigan USA
22 April 2017

Social Order — The Counter-Majoritarian Influence

Assailing government as abusive and hostile to the civil society for which it is responsible is not infrequently countered by an assertion that the government is us. This assertion is understood to suggest that the critic ought not to figuratively (or literally) topple government by reviling its essence and deeming it a counterpoint to civil society, but rather satisfying himself with only calibrating its contemporary machinery; for it seems the premise is  that the government is not the enemy, and no presumption should exist that its restrictions or imperatives should be viewed with suspicion or skepticism. With this assertion I am unable to concur.

At least three (3) reasons seem to suggest this conception is without rational support. These can be categorized as follows:

I.  “Government as Us” — The Threshold for Tyranny

First, the oppression of the body polity is a necessary consequence of such a conception. Preliminary to the discussion of the basis for this danger, an explication of the evolution and nature of the body polity ought first be examined. However, as the writer is in the process of gradually developing this thesis, the reader’s indulgence, in permitting later reference thereto as an introduction to the following, is requested. Presently, the writer will address only the state of

Civil Society and Government in Unpeaceful Coexistence

In any community there exist two (2) levels: civil society; and the government which is a creature of it.  Civil society, though, encompasses every facet and component of the activities of the lives of the persons of which it consists — civil society then being vast,  touching all elements of those lives and activities within the geographical boundaries constituting its periphery, and being inseparable from those component lives. These activities, while not technically infinite, are innumerable, consisting of every minor and major solitary action of each person as well as each minor and major interaction they might have with a constantly-varying ensemble on a daily, weekly and annual basis.

Thus, if government is us, viz, civil society, then it would follow that it should be parallel- engaged in every detail of the solitary thoughts and activities of each, and the interaction between every, member of the polity; for, if civil society is not independent and the primary forum for interaction, but rather subordinate or even tangential to a paramount influence upon the polity from government, then must it not mean government is integral and inextricable? But is not this then the very definition of Tyranny?

Such a scenario of course introduces an additional tension. The greater the scope or volume of social interaction that is impacted or regulated by government, the greater the stake in the government of the various power centers; for, in any civil society no matter how primitive or complex, there is a necessary differential in power between self-identifying sets of its members (or, at least, until the theoretical arrival of the state of entropy at the “end of history”) — as constant exact equality of power is impossible to either attain or maintain. And the greater the stake, the greater the propensity of the stakeholder to insert itself into governmental determinations and outcomes — as the greater the level of its power, the more the interest of the stakeholder is impacted by governmental operations. And the more frequent and the more intense the insertion of the stakeholder into governmental determinations and outcomes, the greater the likelihood of corruption of government thereby.

This corruption occurs in two (2) forms and senses: one, the common sense of moral contamination through favors of some sort from a power center; but also, two, the disruption of and diversion from what would have been the prescribed functioning, as measured either by process or outcome, of the governmental personnel or agency. In either sense, though, there will have been a deviation of the focus of its functions and operations toward a subset or subsets of the civil society. Thereby, will the other sets thereof be neglected and, by definition, consequently oppressed.

II.  The Breadth of Civil Society Inherently Inhibits and Restricts Governmental Competence

Second, if we do not view government as essentially isolated from, but rather coexistent with and integrated into the social structure, then it would follow — as above discussed — that it would be expected, if not explicitly sanctioned, to express judgment or opinion, either imperative or precatory, on all aspects of these interactions. But in that event its magistracy would have to be both as numerous and intensely knowledgeable as the number of members of the society. But this, by definition, is impossible.

If the magistracy was of this numerical extent, then it would consist of all members of the polity, and the civil society would be wholly subsumed within and virtually abolished by the government. But government is a creature of civil society and instituted to perform functions of which civil society is incapable of efficiently or expeditiously performing on its own. It then would not only have exceeded its mandate but destroyed the very reason and justification for its existence.

It then must be concluded that preservation of the rationale for government’s existence necessitates some restriction upon and confinement in the growth of its magistracy. In that event, though, this limit on the number of magistrates will likewise limit both its capacity and expertise in the regulation of the full scope of activities of the members of its polity. Instead, its capacity and expertise will be properly confined only to influence or regulate those activities of members that affect, or the impact upon them by, persons with whom they are not in direct contact1 — the original rationale for the creation of a government.

Thus, both by physical principles and to adhere to the purpose for its creation, the competence of government is innately limited and incapable of being treated as other than a subset of “us”.

III.  The Consensus vs Competition Principles

Third, and most significant, a civil society does (or at least should) operate on the consensus principle. Government however operates upon the majority principle. By nature, they then are wholly inconsistent with and hostile to each other. This alone renders one the opponent, rather than the associate or counterpart, of the other.

Mankind first congregated in civil society from, and to enhance and serve, mutual self-interest. Such an objective by definition requires and involves complementary interaction between those in direct contact with each other; if not then their respective actions would be in conflict and therefore not to their mutual self-interest. With complementary interaction, the actions of each benefit both. To determine how these actions will generate mutual benefit, each must express to the other which result is in their primary interest — or, rather, which of their primary interests will not conflict with a primary interest of the other. Thus, this necessitates consensus by both on which of those interests are least in conflict and the particular action that will attain realization of the respective harmonious interests.

If consensus failed, or perhaps even antagonism developed between these participants, then mutual self-interest would dissolve. As this was the reason for the formation of civil society, then as a result it would itself commence disintegration. Ergo, consensus is the operative principle of civil society.

Ideally, government would operate likewise. However, except for the occasional imposition of super-majorities, history and experience demonstrate that legislative and judicial decision-making operate upon the majority principle.2 For how else could it? While unanimity might be ideal, except in a exceedingly-small body of members — an option possible only for a equivalently-small body politic (though this factor might well be deemed to constitute evidence of the superior benefits of a smaller, rather than a larger, community) — requiring unanimity would paralyze the operations of such a council, as it would provide each member a veto on any action by the balance of the members.

Thus, to avoid this prospect and to enable the law-making or law-adjudicating body to perform whatever functions are legitimately within its purview — the performance of this function being the reason for its creation and, thus, also the very justification for its continued existence — they traditionally and generally operate upon a majority rule principle. Such a principle, though, necessarily excludes, at least in part, the interests or preferences of a portion, and sometimes a substantial portion, of its body politic.

For expedience, as well as the means to implement policies that benefit the interests and preferences of the larger portion of its body politic, such a principle is generally the better operative principle. Nevertheless, it further belies the claim that Government is Us.


1 These persons may be either internal to – as a result of, in a geographically-extensive community, being substantially removed from the respective members – or external from, the body politic.

2 Philosophically, it is possible to categorize only the executive functions as the government, whereas the legislative functions are the expression of the sovereign body politic and the judicial functions the exercise of immutable logic operating on eternal truths and positive law. Employing such a categorization should enable more comprehensive and incisive analysis of the within issues. However, a full exploration would unduly expand this discussion and is best deferred for separate consideration.

 

WAYNE A. SMITH
Forester Twp, Michigan USA
15 April 2017

The Entropy of Waterscapes

Some prefer a pristine, unimpeded view of a waterscape. Others prefer a more natural vista, with intervening flora merging, intermingling with and enhancing the liquid expanse; this latter ensemble would be heartened through the spontaneous birth and growth of trees and shrubs composing this augmentation. However, they risk assault by critical comments upon why they would allow this disarray to occur.

One might respond that they prefer the variety and the severing of the monotony of an unobstructed view. Possibly, though, it can be more than this.

Perhaps, instead, it might be one manifestation of a visceral revulsion toward entropy. Employing myself as an example, and reflecting now, it appears I may always have maintained such an implicit mental framework: for I have long favored and gravitated toward the maintenance of diverse and distinct cultures. And an unobstructed waterscape might be styled as bland, and thus might be a reinforcing factor; for an inclination opposed to a too banal and undifferentiated vista of existence might be distressed when confronted with such a scene.

Such a critical aversion to an unobstructed and unbridled view of a waterscape can be viewed as simply the most immediate manifestation of such a perspective. For limitless, unconfined water is the very definition of entropy. Throughout the Scriptures, the sea constituted the very definition of chaos, and the clearest, most proximate example thereof.

Such a characterization is apt regardless of whether the surface might be violent or calm. For, if the former, though dramatic, yet is the exemplification of disorder, while, if the latter, wholly lacking in any discrete structure. Thus, only the introduction of terrestrial elements into the setting is capable of providing the variety necessary to counteract this inherent entropy.

 WAYNE A. SMITH
Forester Twp, Michigan USA
03 Apr 2017

Hate — Of what does it consist?

It seems there is a present proclivity to characterize many prevalent attitudes as some aspect of Phobia, just two being Islamophobia and Homophobia. Phobia of course is defined as “an extreme or irrational fear or aversion”, but it seems, in these contexts, the meaning intended by the speaker has, frequently if not generally, metamorphosized into a category of Hate.

Phobia of course is not an attribute that is to be embraced or celebrated. (Neither though is the tendency to employ it — similar to the inclination to apply the innately-innocent phrases of “common sense” and “right (or wrong) side of history” as pejoratives — in an effort to castigate or marginalize the objects thereof.) Still, an exhibition of Hate is an attribute or attitude far more malignant and intolerable.

Of what, though, does Hate consist? And how does one identify it and isolate it from attitudes that are permissible? For it without doubt would be pernicious to label the articulation of an opinion formulated within the context of a belief system that distinguishes certain behavior or attributes as good versus bad (or evil) or commendatory versus intolerable — or even as acceptable versus unacceptable — as an expression of Hate. How then do we segregate attitudes that are beyond the pale from beliefs and principles that, though rejected or refuted by certain people, are intellectually tenable?

Perhaps the initial avenue of analysis would be to focus upon certain criteria that are capable of categorization. Pursuing such an approach, we than can assert that certain expressions clearly are indisputably indicative of an attitude of Hate. These include:

  • explicitly characterizing an opinion as hatred toward an identified group of shared characteristics,
  • acts of violence, against designated individuals or groups,
  • offensive expressions with the actual intent to humiliate or injure an identified individual or group,
  • consistently intemperate, vituperative characterizations of an identified group of shared characteristics when unaccompanied by coherent reasons that are sufficiently developed and corroborated,
  • visceral reaction initiated by patent characteristics or without articulable reasons, and
  • refusal to moderate an expressed hostile attitude toward an identified group of shared characteristics despite the proffered opportunity to evaluate context or appreciate nuances after presentation of and utilizing conflicting data or argument, when provided a sufficient opportunity to evaluate the presented data or argument.

 

Other actions would seem to be excludable from opprobrium, such as:

  • expression of acknowledged hostility toward persons, identified or unidentified, exhibiting and manifesting generally-acknowledged malum in se conduct or opinion, and
  • expressions that might have a tendency to offend but which are directed toward particular behavior or characteristics rather than a person performing or displaying them,
  • expression of an articulated opinion, consisting of coherent reasons sufficiently developed and supported,
  • explicitly describing an opinion as hatred toward a particular concept or principle, and
  • revulsion toward conduct that violates historically-established norms of civilized behavior.

 

And yet other actions may be more problematic of categorization, such as:

  • assertion of a general opinion or concept encompassing an identifiable class of persons which characterizes them as morally or socially deficient, and
  • an unequivocal intemperate, vituperative antagonism directed toward identified individuals,
  • expressions that might have a tendency to offend but which are directed toward particular behavior or characteristics rather than a person performing or displaying them when combined with aggravating or egregious factors,
  • antagonism based upon opposition to a practice or behavior rather than an expression of advocacy for a differing practice or behavior.

It would seem the third (3rd) category is the one upon which we should focus, in analyzing the salient factors that might better allow us to identify what is Hate and what is not. For, if we can determine what factors there differentiate it from the first (1st) category, then this ought to enable us to better isolate the controlling factors.

Our first observation, it would seem, ought to be that hate is not per se sanctionable. For Scripture itself recognizes that it is, on occasion at least, justified, e.g. Ps. 97:10; Ps. 139:21-22. The Hate with which we are concerned is that which is censurable and sanctionable.

Unfettered antagonism toward specific individuals often can be justified and properly escape censure. For Evil does exist and certain individuals can congenitally project (or possibly even be possessed by) it. Yet, as Edward Wallis Hoch wrote:

“There is so much good in the worst of us,
And so much bad in the best of us,
That it hardly behooves any of us
To talk about the rest of us.”
(Still, a caveat remains due, as certain persons can by their overt actions project themselves into the public consciousness, or inflict tangible ill towards others — and thus justify a reciprocal expression of censure.)

What then is censurable and sanctionable is an antagonism that is intentionally blind to any redeeming virtues and qualities of a particular person.

Unfettered antagonism towards an identifiable class of persons, however, usually escapes justification by the foregoing rationale. For, unless the class is exceptionally narrow, there are few vices and negative qualities uniform to each member of it; equivalently, even if there were some reprehensible characteristics exhibited by a certain portion of the class, it would be probable that a possible equivalent portion would exhibit laudatory characteristics. Again, then, the dereliction would consist in the intentional ignoring and disregarding of palpable exculpatory circumstances and conditions that would, as a matter of usual linear analysis, necessitate, or at least suggest, a reevaluation of one s assessment of the affected persons.

One primary indicator then of censurable Hate is the conscious and intentional obliviousness to factors that are inconsistent with and rather would negate the rationalization supporting the antagonism. Further, in assessing whether the conscious and intentional element is present, we might tender as an axiom that absolute certitude is equivalent to intent.

Now, however, we should progress to the question whether fervent advocacy of an opinion or position is equivalent to this censurable absolute certitude. To answer this we have to examine the opinion or position in depth.

But this examination needs be made not on the merits but on whether the argument in support of it is an elaborated argument. And we are compelled to conclude that an argument qualifies as such when it exhibits deductive reasoning, utilizing premises that are objectively coherent and consistent, founded upon sufficient evidentiary justification; and sufficient evidentiary justification can be deemed to be present when it is acknowledged to be not a fringe assessment but rather within the range of common recognition. Concurrence in the merits is irrelevant since many disputed premises and much contradictory evidence are common; what is relevant is whether the person espouses an opinion that in good conscience can be confidently maintained — regardless of whether it is “generally-accepted” (since, both, this is a quantitative rather than qualitative measure, and as measure of the quantity can generally be subject to dispute).

Even then it is possible that an elaborated argument might wander into the territory of censurable absolute certitude in the event of persistence in an expressed opinion after the presentation of controlling conflicting data or argument. Nevertheless, since what is “controlling” frequently can be open to dispute and as all are afflicted with an inherent bias against conflicting opinions, the presumption should remain in favor of evaluating an elaborated argument as being made in good faith.

We might conclude then that the primary criterion is how obdurate is the expressed opinion as opposed to one which at least tentatively reserves judgment.

If so, then perhaps the observer who assumes the right to characterize a particular action or opinion as hateful is likewise obliged to reserve judgment until there has been an opportunity to explore the rationale thereof.

WAYNE A. SMITH
Forester Twp, Michigan USA
14 Sep 2016

A Well-Armed and Well-Regulated Militia as a Mechanism for Gauging the Presence of Tyranny

Certain semiautomatic rifles, particularly the AR-15 and similar configurations, have been characterized by some as “weapons of war”. Since there are significant differences between the AR-15 and M16, particularly in the modes and rate of fire, it is well-known the characterization is inaccurate.

However, given the similarity in general design, including its ability to accept a high-capacity magazine, let us for the moment accept the designation as a “weapon of war”.  Does this then disqualify it for civilian ownership?

Preceding posts have sufficiently demonstrated, it is believed, that a large block of civilians in this country are compelled, in certain exigent circumstances, to provide military-type services to the country or their State in their capacity as members of the unorganized militia — or at least be available and prepared to do so.  By definition, then, would they not be engaged in war-type activities?  And, if so, should they not then be experienced in and have available a “weapon of war”?  How then can they be proscribed from ownership of and familiarity with such a weapon?

Moreover, the statutory prescription of potential militia service is parallel to the prefatory clause of the Second Amendment.  While historically and contemporaneously there have been continued conflicting interpretations of the purpose and scope of the amendment, there can be no dispute it includes two (2) clauses and that at a minimum the right to keep and bear arms was to enable the people to perform militia service.  Now, by both historical and legal definition, the performance of militia service was engagement, as the circumstances might require, in paramilitary and military service.  How then is the keeping and bearing of a “weapon of war” incompatible with this capacity?  Rather, does not this capacity instead require it?

One might also analyze the question from the perspective of the purpose of a militia.  It is beyond cavil that a militia was considered more harmonious with liberty, in contrast with the greater threat to liberty that was posed by a standing army.  While not as universally accepted, there was also an understanding that a militia could potentially act as a bulwark against a standing army controlled by persons with objectives in conflict with those of the larger — or, at least, a sufficiently substantial — body of the people.

Certain critics have cast scorn on the continued viability of this function, given the geometrically-superior firepower of the country’s military forces. How can, they say, a militia equipped with AR-15s and sidearms realistically oppose a standing army with, inter alia, M16s, tanks, fighter aircraft and bombers?  This however overlooks a singularly perceptive observation (or, at least, its corollary) from our Declaration of Independence.  It is tendered that this provides the mechanism which preserves and proves the viability of such a resistance — albeit one that hopefully will never be required.

Mr. Jefferson noted that “[p]rudence … dictate[d] that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.”  Thus, even if evils are being perpetrated, they are likely to be borne by the greater body of the populace if they are not excessive and egregious.  Any rebellion by an insignificant body of the populace then allows, if not compels, a conclusion that the causes of the outrage are sufferable.

What then is the conclusion that is allowed, if not compelled, when a significant body of the populace engages in some form of insurrection?  It is tendered that it should be deemed then that these evils have now become magnified into ones which are excessive and egregious.  And it seems Mr. Jefferson concurs, as he further states that in such an instance of “… a long train of abuses and usurpations … evinc[ing] a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”

Let us then suppose that just Five percent (5%) of the population between 15 and 54 years of age deemed themselves outraged by a “long train of abuses and usurpations”.  Nay, instead of more than 8,500,000 citizens, let us suppose that but One percent (1%) resolved to resist what they deemed despotism.  What is conceived to be the likely reaction of the U.S. military forces to a civilian force of more than 1,700,000 citizens?  Would they likely view with equanimity the slaughtering of such a large body of their fellow citizens, deeming it to be consistent with morals and the law?  Wouldn’t they instead be likely to conclude that the perceived grievances of their fellow citizens had become, consistent with Mr. Jefferson’s formula, “insufferable” and due to excessive and egregious “abuses and usurpations”?

It is tendered that out of natural and innate morality — much less and regardless of any concern for their potential jeopardy as a consequence of possible commission of War Crimes and Crimes against Humanity — these military forces would conclude that the actions inspiring such resistance, as well as any orders to overcome such resistance, were patently illegal, and therefore would themselves resist.

It would be impossible of course to reduce to mathematical certainty what proportion of the citizenry would be required for an observer to conclude that resistance was legal rather than illegal.  Suffice it to say that there would be sufficient parameters, when viewed in the context also of any surrounding relevant circumstances, to allow a resistance by a substantial body of the citizenry to be cause for concluding the resistance was justified.  And upon a determination of such justification would instead eliminate the despotism that caused the resistance.

Consequently, a citizenry keeping and bearing arms sufficient to cause a suspension of exertion of force against them, in order to allow an assessment whether their actions were rather justified, demonstrates that the existence and interposition of a militia remains a viable mechanism for resistance to potential despotism.  And the keeping and bearing of arms compatible and consistent with their function as a militia continues to be an essential right.

WAYNE A. SMITH
Forester Twp, Michigan USA
04 July 2016

Duty of Every Citizen as Militia Member to Defend State as Nullification of Restrictions upon Means of Defense


As suggested by my three (3) postings this past February 26, I commenced work upon and intended to post the below shortly thereafter; however, other circumstances and obligations interfered with my completion hereof. Those three (3) postings provide context and reference for this posting and, in some respects, elaborate on this subject.)


The massacres over the past seven (7) months have, as is well-known, resulted in more calls for “gun control”. Unfortunately, these have to a great extent focused on the type of weapon used rather than the type of person who used the weapon or, perhaps more precisely, the deficiencies in the person who used the weapon.

In my opinion, the controversy and ill to be eradicated can be better addressed by attention to the well-regulation of persons who acquire what are deemed to be certain kinds of weapons that justify further regulation. This is further addressed at length in my ASSAULT WEAPONS BAN Memorandum, one of those postings published at this site on February 26. For prolonging exhausting and futile discussions about types of weapons, with certain exceptions of course, ignores and repudiates the reality of the right to keep, and justification for keeping, arms, the obligation to do so, and the necessary circumstances incident to the exercise of this right and obligation.

It is indisputable that there is a natural, and long-recognized common law, right to self-defense.  Nay, the writer tenders that there is not merely a right but further a duty of self-defense. The fact of birth of each living person is a given. If a person was born, then there is a reason for his or her life, be it, among possibly others, the choice of God, or the decision of his or her parents, or a role or purpose for him or her to perform, or an objective for him or her to realize or status to attain. In any event, the very fact of the person having life necessarily implies that it ought not be terminated but ought be allowed to endure, for fulfillment of whatever might have been its reason; for each person had no control over and was not the cause of his or her birth. If then he or she as it were was “impressed into duty”, he or she has no right to shirk this duty but rather a further duty to defend himself or herself from anyone who might endeavor to terminate their life and thereby prevent him or her from performing this duty or realizing their destiny.

The right to keep arms is but a corollary of that right and duty. While the circumstances under which one might have to defend oneself have not it seems been explicated, nevertheless the scope of this right of self-defense is intrinsically wide. For it must encompass at least each of the situations where a person is called upon to defend oneself against a:

  • savage animal,
  • solitary criminal aggressor,
  • band of criminal aggressors,
  • foreign or rogue domestic paramilitary force, or
  • foreign or rogue domestic military force.

All of these situations indicate that there can not be a severely-circumscribed scope of arms to which one is entitled. For an individual weapon that might be sufficient to protect oneself from a small savage animal would not be sufficient to protect oneself from a military force. Consequently, the conclusion must be that a person is entitled by right to keep arms that are sufficient to protect oneself against each of those exigencies.  [The writer of course recognizes that there are certain legal limitations to a broad rule — limitations though which are not incident to or inherent in the natural right of self-defense — as historical usage has, first, extended the entitlement to weapon types which an individual would commonly keep and personally bear, and, two, carved out weapon types that are specialized or might be usually stored in a facility such as an armory. Still, the burden should be upon the one arguing for a restriction that the type is one that should fall into the latter, rather than the former, category.]

Buttressing this line of reasoning is the insufficiently-examined significance and description of what a militia consists. The coupling of the militia phrase in the Second Amendment is frequently used as an argument that the right in the succeeding phrase should be limited.  However, this ignores what was the understanding of the composition of the militia at the time of its adoption. In addition, even the present meaning of the term “unorganized militia” — assuming that the term’s existence is even recognized, much less the significance thereof appreciated — encompasses a broader range of persons than is frequently acknowledged.  (For the succeeding citations the reader is referred to the writer’s Statutory Definitions of U.S. Militia posting this past February 26.) As a perusal of 10 USC 311 indicates, all able-bodied citizens of the United States, between the ages of 17 and 44, inclusive, are automatic and mandatory members of the militia. It would seem that the States have authority to expand the composition thereof since, for example, Michigan has expanded, by 16 years, the age group of persons who compose its unorganized militia, they likewise being under compulsion to be members of the State militia. MCL 32.509.

And what duties and in which circumstances may the unorganized militia be called upon to perform? Among them are to:

  • “… suppress Insurrections and repel invasions” US Const, art I, § 8, cl 15.
  • serve in the defense force “… in case of riot, tumult, breach of the peace, resistance of process, or for service in aid of civil authority, whether state or federal, or in time of actual or imminent public danger, disaster, crisis, catastrophe or other public emergency within this state.” MCL 32.555.

At a minimum certain of these duties, and the circumstances in which they would be performed, clearly are paramilitary or military in character. And is not some of the material with which they must be equipped well known?

If these persons are then part of a contingent military force and thus would be bearing arms in this service, is it not then incumbent upon them to have available and be trained in the use of the weapons which they might be required to employ in a hostile action? And it would seen that such a possible scenario is not simply academic, since, for example, both the U.S. Constitution and the statutes of Michigan allow the President and the Governor, respectively, to call forth the unorganized militia in exigent circumstances. US Const, art I, § 8, cl 15; MCL 32.555. If a person then is a potential military conscript, is not familiarity and training in the use of the arms necessary for them to competently perform their function essential?

Now it is perceived that an argument might be presented that the arms need not be kept by these members of the unorganized militia, but could be stored in some type of armory facility. However, in addition to this being inconsistent with the terminology of the Second Amendment, viz, a right not only to bear but also to keep, there could be a gross impracticability in the administration thereof. For in the event of some type of untoward and unanticipated emergency, might not the members of the unorganized militia require immediate resort to those arms? In addition, having the arms constantly available allows these members to frequently practice and train and perfect themselves in the use of the weapon, something that would not be as conveniently, if at all, possible if they were not always readily available.

In sum, undue restrictions upon the types of weapons available to the populace would not only be inconsistent with but would conflict with and vitiate both the rights granted to them and the duties imposed upon them. For these reasons, any effort to restrict or prohibit certain types of weapons appropriate to these potential functions would negate and interdict this right and this duty.

The writer shortly will further address a related issue in a succeeding posting.

WAYNE A. SMITH
Forester Twp, Michigan USA
03 July 2016

“Safe Communities, Safe Schools Act of 2013” Bill Commentary

[This is being provided both as an independent commentary and as further background to a later post to be published, the below though not being issues to be directly addressed therein.  This constitutes the body of an additional letter, this being disseminated during April, 2013, by the writer to Michigan’s two U.S. Senators.]

I provide this in my capacity as one of your constituents for consideration in your deliberation on the “Safe Communities, Safe Schools Act of 2013” Bill.

While I may have overlooked some material improprieties in Title II or Title III of the bill, it would appear to me that, other than the reference in Sections 203 and 205 to “ammunition”, that these provisions are within the jurisdiction of Congress, do not offend any rights secured to the States or the people, and appear to be reasonable policy.  I however exclude from this sanction the above reference to “ammunition” since it is not mentioned in the preceding sections and therefore is beyond the scope thereof.

I do though have significant problems with Title I of the bill. In fact my difficulties with it are so many — a conclusion that surprised me as I thought many of the opponents of broader background checks were being too extreme — that I am uncertain that I can set forth these objections in as complete or organized a fashion as I would prefer.  Initially I would note that the prohibition set forth in Section 122(a), especially when taken in conjunction with the definition of transfer set forth on pages 13 and 14 of the bill, is far too broad.  In addition to it being so intrusive, as affecting almost every conceivable action constituting a “transfer”, and therefore being in violation of Amendment X of the Constitution, its prohibition on transfer, except by means of the conduit through a federally-licensed person, is a deprivation of a property right that renders it in conflict with Amendment V of the Constitution.

The very narrow and minimal exceptions set forth on pages 11 through 13 of the bill prove the excessive inclusiveness of this prohibition.  Reviewing and reflecting upon them it is an easy matter to conceive of a whole panoply of normal and innocent activities involving a firearm that would be criminalized by such a prohibition.  For example, a person who visited another friend (in a rural area where there was no ordinance prohibition on firearm discharge) and who, while engaged in target practice on his friend’s property, handed his firearm to the friend standing next to him, so as to allow him to practice with it, would apparently be guilty of a felony.  Can it be imagined that it was anticipated that the federal government was permitted to regulate such an extensive range of otherwise permissible and innocent private activities?

The obnoxiousness of the proposed regime, it seems to me, is further proved by Section 123 of the bill. Now a person who has his firearm stolen and fails to at all realize he has to report the theft to the U.S. Attorney General, or is too busy for, say, a day-and-a-half to so report it to the federal government, is also guilt of a felony?  Is it really conceived the U.S. Congress has the constitutional authority to prescribe such conduct ordinarily within local purview only?

I could focus on other provisions and set forth the basis for why these are defects, but I trust the foregoing adequately indicates the core deficiency of Title I as currently drafted.

I understand that Senators Manchin and Toomey are engaged in endeavoring to fashion a compromise substitute for Title I.  I believe the effort is directed at regulating only arms-length transactions, such as gun show sales and online transactions and to not include temporary transfers or those between people who the owner knows or with whom he has the opportunity to familiarize himself. This seems consistent with the catalytic purpose of the bill, viz, preventing firearms from coming into the possession of prohibited persons; for under the latter circumstances the owner knows or would have the opportunity to know whether the recipient appears to be a prohibited person. And if the owner nevertheless delivers it to a prohibited person can be penalized under existing law or perhaps Title II (or a variation of Title II).

Thus I would urge support for such a substitute for Title I.  Failing an adequate substitute, then I would urge a Nay vote on the current version of Title I.

WAYNE A. SMITH

STATUTORY DEFINITIONS OF U.S. MILITIA

[This is being provided both as an independent memorandum and as an introduction to a later post to be published.]

UNITED STATES

10 USC 311 Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are-

(1)  the organized militia, which consists of the National Guard and the Naval Militia; and

(2)  the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

(Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85?861, §1(7), Sept. 2, 1958, 72 Stat. 1439 ; Pub. L. 103?160, div. A, title V, §524(a), Nov. 30, 1993, 107 Stat. 1656 .)

MICHIGAN

MCL 32.509 State military establishment; composition; organized and unorganized militia.

The organized militia of this state taken collectively shall be known as the state military establishment and constitutes the armed forces of this state. The organized militia consists of the army national guard, the air national guard, and the defense force when actually in existence as provided in this act. The unorganized militia consists of all other able-bodied citizens of this state and all other able-bodied citizens who are residents of this state who have or shall have declared their intention to become citizens of the United States, who shall be age 17 or over and not more than age 60, and shall be subject to state military duty as provided in this act.

History: 1967, Act 150, Imd. Eff. June 30, 1967

MCL 32.555 Unorganized militia; power of the governor.

The governor may order into the defense force any members of the unorganized militia in case of riot, tumult, breach of the peace, resistance of process, or for service in aid of civil authority, whether state or federal, or in time of actual or imminent public danger, disaster, crisis, catastrophe or other public emergency within this state.

History: 1967, Act 150, Imd. Eff. June 30, 1967 ;– Am. 2013, Act 99, Imd. Eff. July 2, 2013

 

ASSAULT WEAPONS BAN Memorandum

 

[This is being provided both as an independent commentary and as an introduction to a later post to be published.  This was drafted originally as an enclosure to a letter disseminated during February, 2013, by the writer to Michigan’s two U.S. Senators.]

This is provided as a brief commentary in connection with the consideration of the “Assault Weapons Ban of 2013” Bill, introduced in the United States Senate, and any similar bills that might be or have been introduced in either house.

Certain enhancements of the current regime may be appropriate, but I would tender that a ban of either so-called “assault weapons” or so-called “high capacity magazines” — being terms of art and having no meaning independent of arbitrary statutory definition — would be patently unconstitutional.  In addressing the question one should first give attention of course to Amendment II of the Constitution of the United States of America, viz,

Amendment II

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. [Emphasis supplied]

By the use of the terms Militia and Arms, it is clear that certain weapons arguably of a military character are not prohibited to the people but rather protected from infringement.  Thus, the use of the term “weapons of war” as characterizing implements that can be restricted is plainly a canard.

Now, by the terms of the amendment, the right is not unrestricted, for there are also present, one, the terms keep and bear.  The latter term protects only those arms that could be borne by an individual and whose primary capacity and use is to incapacitate or disable a single individual with each discharge, and the former term further identifies arms as those that both can be and historically are of a type that would have been kept by the people in their individual capacities, viz, arms that by the nature of the function they were designed to perform would not have been stored, in preparation for use, in a community armory.

However, more signal as a criterion is, two, the adjective well regulated.  The right to bear military (or quasi-military) arms is within the context of their disciplined use.  The concept of discipline reminds me of the analogous context of the CPL structure in Michigan.  Any person can, unless within certain defined categories, purchase and maintain a handgun.  However, they are not permitted to carry it concealed without certain training by an authorized person or persons.  By this they are both enhanced in the practical use of the weapon and also subjected to the observance of the instructor, as well as the other participants, in the process.

Thus, might not a tiered system of training, relative to the type of weapon to be used or the context of its use, thereby resulting in a better regulated citizenry, pass constitutional muster?  It would seem it might if the various additional levels of training required were not so arbitrary and capricious as apparently designed simply to be obstacles to the right to bear. In addition to imposition of a greater sense of responsibility upon the person, the additional training required should provide significant opportunities for observation by the other trainees as well as the instructor of any possible psychological or personality aberrations exhibited by any of the participants; if unacceptable or abnormal attributes were observed, then the observer could report this behavior, a determination that the offending person failed in his training might perhaps be issued, and the right to bear such a weapon possibly obstructed.  This it would seem would offer the most efficacious and practicable solution to problems ineffectually attempted to be addressed by misguided “gun control” restrictions.

Would institution of such a regime be consistent with the powers of Congress?  In addressing this question it would now seem appropriate to give attention to the following provision of the Constitution of the United States of America:

Section 8 – Powers of Congress

The Congress shall have Power

[Clause 16]

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; [Emphasis supplied]

The Congress then has the explicit power to prescribe the training discipline to which the citizen-soldier is subject.  This would include it would seem the reasonable level of knowledge, skill and mental acclimation to use an “assault weapon” equipped with a “high capacity magazine”, or other implements of war that can be kept and borne, as a condition to the purchase and keeping of it.  And depending upon the implement there could be gradually expanding levels of training for each, as appropriate.

To my mind, such a regime would provide the necessary amelioration to certain problems conceived to exist in the abuse of these types of weapons, while avoiding the constitutional defects incident to an effort to ban them.

While other proposals in the aforesaid Bill might be consistent with the Constitution, and also be amenable to a sufficiently broad range of the populace, and thus appropriate, I have focused here simply on the provisions endeavoring to ban “assault weapons” and “high capacity magazines”.  For the above reasons I consider these provisions constitutionally defective, in addition to being misguided as the objectives thereof ought to be attained by alternative and more acceptable mechanics.

WAYNE A. SMITH

GRIEF & HOPE

Life is a process of constant motion. The motion, however, can be of a linear, circular or retrograde character. Only linear motion results, of course, in consistent incremental output, viz, an ascending, stable edifice. This output, though, can be interrupted by the loss of someone or something close to or intimate with the person.

Then the party can be afflicted with grief as well as be confronted with the conundrum of a possible replacement of the person or thing lost. It is a conundrum since a successor that is sought too soon or too late can be equally adverse.

For, if too soon, then it would suggest that the successor is fully interchangeable with that which was lost and thus there was nothing unique or special in nor depth to the relationship that lapsed. But, if too late, then it would suggest that nothing of which did transpire in the relationship was so important or worthwhile that an effort to replicate it would justify the effort. Either construction would intimate that the experiences and time involved could be construed as having been, at least relatively, squandered.

But, on analysis, one can distinguish and reveal these termini with greater clarity. Let us look first at the state of the expired relationship.

The initial reaction to the absence, depending upon the nature of the relationship, can be a profound sense of loss, a pervasive loneliness. Thus, there can be resistance to a hasty replacement due to a recognition of the depth and importance of the vanished relationship, the joy which was experienced, and the reluctance to dilute the effects, and even more painfully the possibility of shrouding the remembrance, of those experiences. While sadly those memories, and even the ability to easily visualize the late presence of what was lost, will begin to fade, there nevertheless will exist an aversion to accelerating the process through obscuring them by a substitute presence.

In those instances, the grief consists of the lack of opportunity now to display joy toward or demonstrate affection for the thing or being that has been lost. While the sentiments that are the subject of this initial phase are unilateral in nature, they have a natural, though converse, relationship to the importance of the role relationship between the two. However, if the person were to succumb too readily to this grief, by seeking an opportunity to display affection, then it would compromise, or be inconsistent with the depth of, the relationship between the survivor and that which was lost; accordingly, there is an inherent resistance to seek a substitute opportunity to display affection.

Such an opportunity, for the present now gone, is by its nature active. Consequently, it consists of, through such demonstration of joy and affection, making the being — or in the case of an activity, the observers thereof or participants therein — delighted and gratified. In this the opportunity then was a selfless outwards expression of one’s emotions and therefore an unselfish action.

Thus, a certain period of time is required to become reconciled to this state of absence. Eventually one is confronted with another, new choice — whether to persist in avoiding resumption of what was lost. Therefore, now let us look at the state of the  absent experiences.

In due time, then, the usual inclination would be to decline prolonging further the replacement of what was lost; what was the pervasive loneliness is eventually overridden by something stronger — the need to experience again the same state of bliss. For the person would recognize his need to experience again what he knew, both for the pleasure and felicity it engendered and for a quasi-resurrection of the importance and significance to him of what or who he knew before, albeit in a transformed shape. If one does not select a replacement then it denigrates the importance of what was contributed to him by what was lost.

But the choice also constitutes a recognition of the reciprocal nature of the relationship, one through which what was lost delivered happiness or returned the affection to him; thus, to this extent, the need to find a replacement could be characterized as a selfish action. Still, such a characterization might be too harsh. For while the nature of the person’s participation in this phase is more passive, the relationship was not of unilateral benefit only.

For, even if passive, a benefit is only yielded if the object of affection demonstrates the effect of the observer’s actions or behavior. Nevertheless, the demonstration can be isolated or reciprocal, with both modes being components of the larger set of implicit reciprocity. [In this regard, the demonstration, ideally perhaps, is most salutary when it bears an isolated aspect, when the person is an observer only rather than contemporaneously engaged or a direct recipient. For the person either might prefer not to be seeking some acknowledgment for his efforts or simply might feel uncomfortable with a display of affection. In the latter event, the sincerity of the compassionate actions still can be genuine, even if perhaps the person prefers an emotional detachment.]

What might be concluded from such a process of wrestling with grief? One conclusion that might be strongly suggested is that the fear of supplanting memories is overcome by the later perceived need to renew the context of those memories in order to avoid the forgetting of them.

Since these scenarios of loss and grief are inherent in and to life, they, and the employment of the remedies for curing them, will be a regular feature of existence. And as it would seem it must be concluded grief constitutes one of those factors negative and contrary to a constructive life, then minimizing this influence (which detracts from and attacks such a life) is necessary for nurturing this form of life. How then would one marginalize grief?

In answering this it would seem we have to identify what quality or state constitutes a polarity and an antidote to it. If the course of one’s life has consisted of an abundance of phenomena, then it would seem there should be less cause for grief. For perhaps the more active one’s life has been, the corollary will be an expectation of continued and constant growth. And the progeny of an expectation of something is the hope of its transpiring. Another conclusion then that might be strongly suggested is that Hope is the primary motivating factor for a constructive life. Thus, the better question perhaps is how then would one nurture and elevate hope?

One method, perhaps, is to maintain an dynamic life since one, in addition to enhancing one’s expectations, then would have reduced time to grieve, thereby providing greater latitude for the admittance of hope. Still perhaps if there was more satisfaction or contentment previously, then there is more likely to be more grief occasioned by its loss. Thus paradoxes exist: while grief might be enhanced if one’s life has not been active and filled, since one then would perceive it to be at least partially squandered, still a life filled with a large volume of events likely could make the loss thereof be perceived as greater and more intense — and thus yielding greater grief.

How then does one ameliorate this problem by vitiating this paradox? Perhaps by access to and entry into a community, as regular interaction will magnify opportunity for an experiential abundance. It would seem then that bliss may well consist of engagement in community. Such a proposition would then yield that displaying love is a human need. Because of the environment, it manifests itself in mutual engagement, thereby engendering in the other a sense of worth and value. It consequently is an active element. However, too large a community would interfere with any single relationship within it being developed to its optimum extent. Thus, while more than one person is necessary — a community by definition consisting of more than the singular — too large a volume would detract from its beneficial quality. Hence the serenity and tranquility that proceeds from Hope is cultivated in a restricted framework of intimate, austere connections.

WAYNE A. SMITH
Forester Twp, Michigan USA
30 Dec 2015

The Efficacy of Small Actions

I am presently satisfied that the maximum effect and benefit a person produces from one’s activities is by their small actions affecting people most intimately and frequently encountered by them. In demonstrating this one might embark upon an analysis employing the below hypotheses as one possible method for confirmation of this conclusion.

One could imagine a set of many concentric circles surrounding oneself, with the person located at a point along the inner circle. To transport oneself to a new point, one would have the potential options of either moving laterally along the arc or perpendicularly to an outer circle. In deciding which direction to move one normally would base the decision upon which movement would be most likely to yield a discrete result; for otherwise one would have to be willing to surrender to the sterile proposition that random motion is constructive.

Now it is true that the farther one advances outward from their “home turf” the greater the length of the circle and the greater the volume of nodes along it.  But the energy and time required for motion along this vector away from the center necessarily reduces the energy and constrains the time the person can expend upon lateral motion. This conclusion is compelled by the acknowledgments that: first, energy and time are each finite; and, second, the constriction of the energy and time available for lateral motion thus must necessarily result from the energy and time expended on movement along the outward vector.

Yet no discernible and productive result is accomplished by traveling along the outward vector other than movement of oneself to a longer circle with more nodes; one still must then initiate further action along the circle’s arc in order to influence those nodes. But even more consequential it would seem is the infrequency of those outward movements.

For one must of course overcome inertia in order to initiate movement along an outward vector. And to have access to a qualitatively-larger volume of nodes requires proportionately-greater outward movement along the vector; each additional perpendicular increment yields more nodes but requires at least proportionate additional energy and time. Thus, kinetics mechanics and experience both teach that we will likely avoid this effort in favor of circulating only short distances from the center; for, one, the same (or less) quantum of energy and time can be expended on lateral motion, and, two, the decreased resistance to this motion due to familiarity with the “home circle” will minimize those expenditures.

Thus, by concentrating upon these lateral movements we will focus upon, and optimize the volume of, our conscious and deliberate actions initiated for the purpose of attaining a particular objective. And by definition those actions will be most accurately observed by and have an impact upon those nodes in closest proximity with oneself.

It then is inescapable that: the frequency of contact has to be with those in the most direct relationship with any of us; and the aggregate of our actions have to most influence those in direct relationship rather than the larger potential circle of people farther away from us.

WAYNE A. SMITH
Forester Twp, Michigan USA
02 Nov 2015

 

Religious Liberty vs Civil Rights

The confrontation between proponents of and conflict between putative religious liberty and asserted civil rights has of course been the subject of much recent commentary. It would appear to me though that many of the commentators overlook at least one crucial element in their analysis.

To me one obvious element, which has already been the subject of comment by some, is whether the action by a person asserting the right to religious liberty consists of a form of creative expression rather than the provision of a fungible product. If the former, then an external compulsion to perform constitutes more of an, if not an egregious, interference with their personal liberty; this conclusion proceeds from the recognition that the coerced performer is engaged in customized activity that succeeds and is pursuant to, and arguably restricted by, the demand of the requester. In the latter situation, however, the provider has performed the activity preceding the request for supply thereof, and thus any compulsion to supply it cannot, by definition, restrict or affect activity already performed.

I though have chosen to utilize instead the criteria of whether the performance constituted some form of personal service, the law having long recognized that personal service contracts occupy a unique niche and are subject to different rules of contract. In either event what would be entailed is a person performing an activity that was special, rather than general, and thus possibly deemed constituting or implying a conscious and intentional ratification of the object and product of the activity. Other than for practical reasons, no person in a free society can be compelled to perform any action of any type; they might possibly be properly prohibited from performing certain types of actions. But the power to mandate actions of particular types, much less being compelled to engage in approbation of the principles of another, is the indicia of a tyranny.

However it now occurs to me there is another element that might even better clarify as well as be dispositive of the issue. And this would be whether the person is differentiating based upon the attributes of another or instead the activity or behavior in which they are engaged. This could be deemed parallel to the well-recognized sociological dichotomy of Status and Role.

Most service providers who object to certain activity do not resist based upon only the attributes of the requester; in such a context, since the status of the requester is only a passive element, it is only the provider’s behavior which is in question in this situation — and this therefore does not impinge on the provider’s liberty. But in the context of the activity or behavior in which they are engaged, since it is the requester’s behavior to which the provider is responding, compelling their support of it amounts in effect to participation and ratification — and this therefore does impinge on the actor’s liberty.

Is this a distinction without meaning? I tender the answer is No, it is a significant distinction. The wrong that is the gravamen of the conflict is excessive integration between the sphere of action of one person and the sphere of action of another. If the participants mutually choose to allow these spheres to intersect, then there can be no offense. But the body politic should be encumbered with the obligation to maintain separation between these spheres as much as practicable. Conflicts though are engendered and become onerous when the polity seeks to excessively enunciate and impose certain standards and modes of action that it deems principled and moral. Might not then the proper foundation of the body politic be amorality, doing neither bad nor good but only approving and enforcing policies that are quantitatively, rather than qualitatively, beneficial.

WAYNE A. SMITH
Forester Twp, Michigan USA
04 Oct 2015

 

Recollection & Contemplation

An occasion arose last Sunday morning to recall a person whom I occasionally encountered about some either 35 or 40 years ago. The differing range in time was due to my admitted inability to then recall in which of two different contexts I encountered him.

I then reflected that many of a younger generation might well attribute this to the deficiencies of an aging mind. For while it seems indisputable that with the progression of time there is an inevitable deterioration in civilization, society, morals and percipience, it also has a tendency to impose negative physiological effects.

Yet are there not other explanations also? One is the consequence of the aggregation of an ever-increasing volume of recollections accumulated over the longer length of time. If one had the Divine Mind, this would be an immaterial factor. But mortal minds are finite. Therefore this accumulation of recollections results in a compression of them. And this compression inhibits the ability to distinguish between the time framework of individual events.

The second explanation is both the ability and inclination of the mind to synthesize data and ideas as it accumulates both over time. With lower volumes of information either data or ideas will render recognition of any interconnection or apposition more difficult, yielding a hypothesis that either remain isolated and random. However as the mind accumulates both, then more common threads, points or vectors, both parallel or divergent, will present themselves — affording the opportunity to recognize patterns and draw conclusions. And since the mind is finite and inhibited from concurrent linear thought and lateral thought, the mature mind’s predilection is to elect rumination on the patterns and conclusions rather than the particulars of which they are the product.

Ergo, the mature mind does not necessarily suffer from deficiencies due to deterioration but rather exhibits a proclivity that is attributable to the process of its development.

WAYNE A. SMITH
Forester Twp, Michigan USA
21 Aug 2015

Eternity

 

To some, at least, eternity seems a fearful prospect, a terror of another kind:

A future without completion, conclusion or end. Constant missions — even if new and different, substituting and replacing concluded errands — and, thus, challenges.

Now certainly God has informed us that, for some at least, they will be afforded the opportunity to “enter God’s rest”. And if the body will be changed, so still will the mind — as even the mortal mind is bade to experience renewal of itself — and this could enable a comfortable adjustment to and grateful acceptance of this unexperienced prospect. Yet, by definition, we cannot now transmute our perception into such a state or presently comprehend such an altered consciousness. Consequently, while perhaps it is truly a rest, we still have no way now of so assuring ourselves — and therefore remain in tension.

But are there are other prospects that are equally fearful?

We here treasure and embrace our intimate temporal pursuits and associates (or at least some). Frequently, if not usually, we take for granted those which are closest and most constant because their presence seems so natural and elemental.  Only with the prospect of the absence or loss of them do we then appreciate their impermanence, and suffer trepidation and anxiety; we implore that the presence of the pursuit and the creature be extended indefinitely, to provide us the opportunity to better and more fully enjoy them. One wishes then he had had more occasion, perhaps indefinitely, to enjoy the object of this pleasure; and this sentiment can assert itself despite, or perhaps because of, one not neglecting the opportunities he had had to extract a meaningful degree of this pleasure — as the greater the uninterrupted involvement, the greater the perception of this presence as inextricable from one’s own existence.  The absence then would intolerably agitate and unsettle, causing one to wonder how they could possibly now adjust and strive onward.

This propensity is generated or enhanced by our inability, or reduced ability, to attune to anything but the present. We by definition can interact only with the present since the past (as far as meaningful to us) no longer exists and the future is unknown. Our senses and sensibilities then can only observe, examine, understand and appreciate that with which we can connect, either tactilely or visually. Since only the present state is “real” to us, then a lofty obstacle, perhaps insuperable, is imposed to truly appreciate a departure from the status quo.

Yet, would not this, the inclination or propensity to avoid mental acknowledgment of the possibility of an interruption of the status quo, be tantamount to eternally experiencing it?  Would one truly conceive that one’s delights should be extended but not perpetual, that there should be some ultimate terminus to them? It does not seem that the mind would conceive of such a scenario nor that it could discern any good reason for such a perspective.  While it may be unnatural (if not impossible) to contemplate perpetuity, is it not likewise unnatural to contemplate transience and mortality?

Perhaps, then, eternity is not such a fearful prospect after all.

WAYNE A. SMITH
Forester Twp, Michigan USA
14 Aug 2015

“Right (or Wrong) Side” of History? — Part I

Two of the most overused, misused and abused phrases currently in vogue are “common sense” and the “wrong (or right) side of history”. Both phrases, while possibly innately innocuous, are now used in contexts that render them malignant.

While Common Sense is now usually being used to imply a solution or answer that ought to be obviously correct, still one person’s Common Sense is another person’s sophistry. Worse though is the aspersion that a person who does not perceive the obvious truth of a solution must be stupid, immoral or corrupt, or a combination of these faults. Consequently, while proposing solutions dictated by Common Sense is ostensibly for the purpose of optimizing the volume of support, it tends to incite conflict rather than collaboration.  Thus it is most clearly not common sense to employ a rationale of Common Sense in an effort to persuade adoption of one’s position.

While perhaps not as irritating, the “wrong (or right) side of history” phrase possesses the potential of — and can be anticipated to almost always inflict — the vastly-greater pernicious effect. For, first, it implies an innate certainty: a present development or condition (either conceptual or tangible) linked in a direct relationship to an overt inevitability. Moreover, second, it is subject to a fatal defect and error: it assumes the progress (a word itself perceived to be endowed with a subjective sense that is questionable) of history is consistent, continuous and positive — despite the evidence that the vector of much, if not most, change is in a negative direction. If historical change results in deterioration, do we really want to be on the side of corruption?

The proper mechanics for analysis is not a prognostication of the misty course of future events, isolated from their meritorious significance. Rather it should consist of an analysis of the virtue and value of an outcome, and whether it then is a sufficient improvement justifying a conscious and persistent effort to attain it, not simply a condition projected to occur in the absence of any effort to obstruct it or substitute another outcome for it. Might it not then be a reasonable proposition that: If an outcome does not require a conscious, intentional and exacting design, implemented by substantial effort, to attain it, then it generally should be avoided and prevented? For, if a condition develops in the natural course without deliberate guidance — a state that might be properly designated as accidental, not purposeful — can it not generally be concluded that it proceeds from sloth, obtuseness, cupidity, corruption, or another like baser human instinct?

I would respectfully tender that numerous examples, parallel metaphors and extrapolations abound to support this harsh assessment of our fecklessness in prescience of history’s direction, and the superiority of using righteousness instead as the guide. I will however reserve addressing these for Part II of this essay.

WAYNE A. SMITH
Forester Twp, Michigan USA
11 May 2015

Voter “Suppression” Revisited

[This is in supplementation of my previous post regarding this issue.]

One primary motivating factor behind expanding the electorate — or the ease of exercising the franchise — is the apprehension that “Democracy” is somehow the highest form of government. This type of conception seems unfortunately too much akin to the usual superficial analysis by present society of most questions and subjects.

As we know, classical political theory, first discussed by Aristotle, conceived of three (3) types of government forms — government by the one, by the few and by the many — none of which were considered intrinsically superior to the other; rather they were respectively considered better than the others for a particular community depending upon the type and development thereof.

These classical types were denominated as: Monarchy (or Kingship); Aristocracy; and Democracy. It was conceived however that the proper functioning of these forms could deteriorate and become corrupt. The corrupt forms thereof, respectively were denominated as: Tyranny; Oligarchy; and Ochlocracy (or Mob Rule). Polybius later conceived of these forms as a cycle, with one leading to the other, viz, Kingship -> Tyranny -> Aristocracy -> Oligarchy -> Democracy -> Mob Rule -> Kingship, and ad infinitum.

We no longer of course talk in these terms. We talk in the terms of Bad Government, on one side, and Democracy, on the other. This is unfortunate, for two reasons.

First, a lack of precision yields superficial, and therefore inaccurate, analysis. Vague definitions result in vague thinking. Yet present practice is to subsume too much under the rubric of “Democracy”. It hence has little meaning and less utility as a tool to measure competing policies. If we then want to avoid muddled thinking, we must avoid this muddled definition of Democracy and instead revert to a narrower and delimited sense that is more in keeping with its original meaning. This will yield benefits not only in this specific context but, by training a more rigorous habit of mind and thinking, by replication of this type of analysis in related contexts.

But even more importantly, by failing to recognize the boundaries of legitimate democracy, we stray into a rampant wilderness that our forbears rejected. Studied observation over millennia resulted in a normative conclusion that Democracy is capable of degeneration into a mutated monstrosity. Vigilance in scrutiny, to enable discovery of any aberration from its accepted limits, was as important here as it was for detection of corruption in any of the other forms of government.

Such a perspective then would sanction any form that would partake of the characteristics of or otherwise resemble classical direct democracy. Critical elements of this of course would be presentation of arguments and evidence directly to the citizens of the community and personal approval or rejection by them of the proposed legislation or policy; similar systems are known by us in the original New England Town Meetings setting. Mechanics that would tend to stray beyond such norms would be suspected of likely tending toward or at least laying a foundation for what they characterized as Mob Rule.

Presently though we do not seem to be concerned about such propensities. We seem to think that expansion of what we deem Democracy by ever greater indirect participation tends toward a favorable outcome. [However, this, among other things, confuses the franchise  — and its exercise in elections  — with Democracy; it is not the sine qua non of Democracy much less the definition of it but just a device for the selection of magistrates for a variety of forms of government, since both Kings and Aristocrats occasionally were chosen by election (in one form or another)].

Further, if we are prepared to accede in the “wisdom of the ages”, then we have to be concerned about and seek to avoid departures that might tend toward what could be characterized as extreme democracy. For if we accept these premises of classical theory, then it would seem only those elements that have historical frequency predominance would be deemed appropriate components of Democracy — since they would have developed during the Early and Middle stages of each community and therefore not in the fringe stage most contiguous to Mob Rule; all communities that had the experience of Democracy would have passed through an Early and Middle Stage but not necessarily a Late Stage, and thus measurement of frequency would yield identification of elements more common to the former — and therefore before deterioration and corruption.

I would tender that devices which make it too easy for too many people to indiscriminately elect various partisans are subject to such a characterization. As such, then, they likely would be viewed by the ancients as indicia of entry into the Mob Rule phase and, hence, would be rejected. I then would suggest that we should very critically view:

  • early voting,
  • extended voting periods, and
  • expanded absentee voting,

presuming they are generally dangerous and destructive of the interest of the society. Such a conclusion would proceed from the recognition of these devices as novel, and therefore not inherent in core Democracy. (Again, we must remember that the weight of authority and wisdom rejected erection of any hierarchy of particular governmental forms, which would treat one as usually superior to another, but deemed each as possibly more appropriate for a particular time, conditions and circumstances. Thus, unless experience demonstrated that certain devices or modes were commonly practiced, they would be considered a corruption, being arbitrary and subjective.)

Unfortunately, our present age seems to be afflicted with unparalleled arrogance. Rather than accepting the societal application of the Second Law of Thermodynamics principle, it views change as “progress”, i.e. transformation that is good and positive, rather than of what it most often partakes, viz, deterioration into corruption. Thus study of the old is repudiated and “new ideas” are what are honored; somehow an absence of the “burden” of history is beneficial, enabling the constant pursuit and introduction of new forms.

This rejection of historical restrictions on election procedures in favor of adoption of untried and untrue procedures is but one example. But it is the example, in the writer’s repudiation of the demagogic “voter suppression” diatribe and characterization, that is castigated here.

WAYNE A. SMITH
Forester Twp, Michigan USA
26 Oct 2014

The Life of Faith

Yes, a Life of Faith is a conundrum.

Both Scripture and logic  — as by definition the relationship of a mortal with the divine is necessarily one of qualitative inferiority — dictate the adoption of humility as a dominant character attribute.  We are enjoined to be humble; in addition, since Scripture characterizes Christ’s submission to crucifixion as the ultimate in humility  — and as we are charged to be Christ-like  — it is clear that humility must be our guiding principle.

Yet we know that God is omnipotent and omniscient.  If we strive to emulate, then we will be inclined to gradually impart an aura of boldness to our actions and efforts to glorify God; we also magnify our confidence by our greater proximity to God’s greatness and our joy in our hope of growth toward these elevated attributes. But, in this enlargement of our attitude, do we not also risk smiting our humility with a mortal blow?

In addition to the question of the mental perspective is that of the actions which flow from it.  As we not only are commanded to glorify God but thirst to do so, we necessarily don a mantle of animation while endeavoring to exploit every opportunity with which we may be presented; if we are called by God, then we yearn to optimize all the capabilities, and occasions for their employment, with which we are blessed. These trials, though, demand optimal focus and concentration; efforts to surmount our mortality are not casual nor perfunctory. However, in focusing and concentrating on the modest contributions we might make, do we not only risk but also experience distraction of our attention from listening to and reflecting on God?

Yes, it is all challenging and a conundrum.

WAYNE A. SMITH
Forester Twp, Michigan USA
01 Sep 2014