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Recently we received a letter from a professor in Germany…

Replying (in such a public manner) may take several posts, especially as regards such weighty matters as he addresses. So we will address him as Professor Line (not his real name), as that is the summation of his letter to us…you in the Twelve Tribes have crossed a line.

We sincerely appreciate the warmth of his opening sentence, which is quoted below.

Several excerpts from his well-written letter follow. As you will see, he clearly and cognitively embraces, as both necessary and superior, the philosophy of positive law. Definitions are listed below of this key term. He understands such law to be the product of continuous negotiation and debate among the forces, the power groups that exist in society. As such it has no other foundation than the current will of the people, however expressed, produced, or really, as history shows, coerced.

More politely, the consent of the people can also be engineered by those in positions of power and wealth. The twentieth century shows that anything can be marketed — even evil. And he correctly points out that the Twelve Tribes are a very small, powerless player on the national scene of Germany. So, what of us? So, what of others? Not insignificant questions. What of those outside the lines?

Also, please take note of his opening sentence in the concluding paragraph, “When there is no such thing as natural law.” It is keenly perceptive. What are men to do when the foundations of natural law are seemingly destroyed in society? King David asked the question many years ago in Psalm 11:3, “If the foundations are destroyed, what can the righteous do?” What indeed?

So, yes, such times have existed before ours. The most recent cast a shadow on the present, into which, it seems, some societies are willingly walking again. As a wise man once said, “There is nothing new under the sun.” From our good (and very modern) professor:

I’ve been following your argument for some time, and while I understand your grief over not getting your children back, I find your reasoning flawed. The last jurist who represented “natural law” died a century ago, because the idea of “natural law” is a cultural construct, and has been deemed historically interesting but obsolete…

“In Germany, as in dozens of other countries, a consensus has formed that while disciplining children is all right, discipline by hitting children, especially with implements, is not. This has evolved in the same way as the idea that flogging is not an acceptable way to treat criminals, soldiers, sailors, wives etc…

“What many minorities have not realised is that they, too, are subjected to the cultural constructions of their host countries, and therefore to their respective laws…

“Please do take note that whenever your definition of human rights clashes with the definition enshrined in the laws of the land, the state has every right to defend itself.

“Let us summarise: Where there is no such thing as natural law, law-making has to be negotiated in a never-ending discourse. You are part of that discourse but a very small one that has little bargaining power, and even less power to win hegemony by blackmail and pressure tactics. Laws that have found entry into the legal code of a country are binding to all citizens, including those that want to live an isolated life governed by the rejection of the majority’s values. That is legitimate and will be tolerated as long as the minorities do not break the laws of the land. And that is exactly the line that you have crossed.” ~ Professor Line

As any reader can see, our good professor agrees with the dictionary definition of natural law quoted in the post he responded to, “Registered, Persecuted, and…

From the dictionary, we see the basic opposition of natural law to positive law:

It is the theory that some laws are basic and fundamental to human nature and are discoverable by human reason without reference to specific legislative enactments or judicial decisions. Natural law is opposed to positive law, which is human-made, conditioned by history, and subject to continuous change.*

And from Professor Radbruch we find the essential definition of positive law, and how it strips the people of any right to respond to anything within them that cries “Injustice!”

Limitless government needs positive law in order to exist, which is equated with power by the German legal scholar, Gustav Radbruch as:

A law is valid because it is a law, and it is a law if, in the general run of cases, it has the power to prevail. This view of a law and of its validity (we call it the positivistic theory) has rendered jurists (judges) and the people alike defenceless against arbitrary, cruel, or criminal laws, however extreme they might be. In the end, the positivistic theory equates law with power; there is law only where there is power. (Five Minutes of Legal Philosophy, published 1945)

A (not) Hypothetical Situation…

So what if dozens of countries, encompassing hundreds of millions of people, came, either quickly or methodically, to the conclusion that certain people’s very existence was a crime against humanity? Why should they not pass laws against them? While the world watched, basically uninterested, they did so. It was a continuous process on the most public of levels. From the university hall to the street corner, from the halls of government to the beer halls: the nation stood virtually as one man, far more so than over the issue of the discipline of children in today’s Germany.

One by one the most basic freedoms were stripped away from these hated groups: freedoms of speech and religion, the rights of travel, and owning wealth. These were certified enemies of the state! Why should they not finally deny these despised groups the very air in which to breath? What could possibly prevent them — some cultural construct like human rights, perhaps? Or some quaint belief that right and wrong are written instinctively on men’s souls? (natural law). Or some expectation that all men know: “THOU SHALT NOT MURDER”? None of this seemed to matter very much then.

Yes, we speak of a time when many acted as if “there was no such thing as natural law.” Is this good or bad, or neither?

Let us come to clear conclusions, if we can. These nations had come to widespread, common agreement; they had the power, the will, and as states they had every right to “defend themselves” against an “enemy.” They acted as it were in self-defense, or so they justified their actions. They may have even believed this.

Does this not fit every requirement of Germany’s modern philosophy of law? When each is checked off, cannot anything become law? There is no restraint on what can become law, is there?

So, is there a problem with this way of thinking?

Here is a map of the Axis powers (in black), more or less at their high-water mark, in World War II. It would be safe to say that they had reached consensus on a host of issues. There is a vast amount of documentation about those European countries, mainly, that agreed on the registration, persecution, and annihilation of the Jews and others.

This is called the Holocaust.

799px-Ww2_allied_axis_1942_june

It ended with the victory of the Allied powers. They put the vanquished on trial. But according to their own law, how could anyone be found guilty for obeying orders? That is just what the Nürnberg War Crimes Trial, did, too. They found people guilty for obeying orders, rejecting the contention of a number of the defendants that they were not legally responsible for their acts because they performed the acts under the orders of superior authority. According to the tribunal, “the true test … is not the existence of the order but whether moral choice (in executing it) was in fact possible.” (“War Crimes Trials,” Encarta Encyclopedia 2000)

But what did morality have to do with what they did? Instead, the defense the defendants offered at trial was rooted in the very idea of positive law! They were keeping and not breaking the law because they were enforcing the national will, defending the state, and doing what was “right.” Anything within their power to do was, by their definition, right. So they legislated, so they acted. (Remember, there is no difference under positive law: right = power; power = right.)

Is that not law? What does moral choice have to do with it? What choice against the state is possible? And being impossible, how can it be moral? The circle was closed in the defendant’s minds: the judges at Nürnberg were wrong. Were they?

Who dares to disobey the law? That is, who dares to uphold any other standard of right and wrong, no matter how long honored by the entire mass of humanity, once the government has spoken?

Who believes that God, not men, determines what is right and what is wrong, and writes that knowledge on men’s hearts?

But, He leaves it to men, especially in times of crisis, to obey or disobey that inner truth. That is what Professor Radbruch wrote of in his final paragraph of the “Fifth Minute.” More on this in a future post.

We call heroes those who did disobey evil laws, such as the members of the White Rose resistance movement in Nazi Germany. From a safe distance, we call scoundrels those who hunted them down and beheaded them. But let us reconsider the matter in this light: “Must the state and its laws be honored no matter how contrary to conscience and God’s Law they are?”

If so, then tear down the monuments to Sophie Scholls heroism! Rename the 190 schools named after the supposed heroine. Change “Sophie Scholl School” to “Jakob Schmid School” — the real hero of the people. Yes, his values are being taught there, not hers! She treasured the conscience, which she called the “yardstick inside ourselves”:

Sophie measured herself against high standards and believed others should do the same. “We all have this yardstick inside ourselves, but it just isn’t sought enough. Maybe because it is the most difficult yardstick,” she explained in a letter to her boyfriend, Fritz Hartnagel. {Quoted in Hitler Youth, by S.C. Bartoletti (Scholastic, Inc. 2005), p. 38}

But for Jakob, the state laid the yardstick over all society, clearly having the power to do so. Mr. Schmid merely honored the law, arresting Hans and Sophie as they distributed their hated leaflets. See his fierce determination:

jakob-schmid

Jakob Schmid, the janitor who arrested Hans and Sophie Scholl.

Renaming the schools after him would be a fine thing! He obeyed the law! They disobeyed the law for conscience sake. They were punished. Hurray! That’s certainly what they cried when the Scholls were executed — the gave the janitor a standing ovation!

The Munich students weren’t stirred to action, as Sophie had wished. Instead they expressed their loyalty to the Nazi government by staging a pro-Nazi demonstration in front of the university just two hours after the executions of Hans and Sophie Scholl and Christopher Probst.

“Three days later, at a special assembly, a Nazi student leader gave a speech, deriding the White Rose for their resistance activities. Hundreds of students cheered their approval of the speech. They also gave custodian Jakob Schmid a standing ovation.” {S. C. Bartoletti, Hitler Youth: Growing up in Hitler’s Shadow (Scholastic, Inc., 2005), p. 127}

Know this, punishing parents for disciplining their children in love is contrary to both what parents know in their conscience and what the Word of God teaches. Proverbs 13:24 — “Whoever spares the rod hates his son, but he who loves him is diligent to discipline him.” Such a law is the inconceivable “law against love” that the Apostle Paul could not imagine coming about in his day (Galatians 5:22-23).

So we have a name for the times “when there is no such thing as natural law.” It is the time when good is called evil and evil is called good. It is the time of Isaiah 5:20. It is a time of woe.

Woe unto them that call evil good, and good evil; that put darkness for light, and light for darkness; that put bitter for sweet, and sweet for bitter!