It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [12]
Second, Positivism’s emphasis on majoritarianism has proven itself to be a woefully inadequate substitute for a scheme of Natural Rights. Although the theory of Positivism allows for the promulgation of laws which favor the majority, it also facilitates the promulgation of laws which benefit a minority at the expense of the majority, as was the case for centuries with Feudalism. Thus, Positivism is contingent upon effectively functioning democratic processes; without them, Positivism collapses in on itself. Anyone discontented with lobbying practices in Washington can understand this flaw of Positivism.
Why should the transgression of the natural rights of a minority be any less abject than doing so to a majority? After all, Jews were an ethnic minority in Germany; does that make the Holocaust any more tolerable? Because the Natural Law applies equally to individuals and minorities as well as majorities, any transgression of it is just as damaging to the immutable order of the universe. If we steal one hundred dollars instead of one million dollars, it is still theft, and a violation of another individual’s property rights.
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As human history teaches us, many of the most egregious human rights violations have come at the hands of majorities in so-called advanced societies. Was it not a majority of white Americans which for two hundred years institutionalized slavery, the ultimate violation of Natural Rights? Even Abraham Lincoln, the so-called Great Emancipator, was not an abolitionist out of principle, but rather out of temporary military necessity to cripple the southern economy and win the Civil War. Was it not democratically elected officials who detained (Asian) Japanese American citizens during World War II, but not (Caucasian) German American citizens? Perhaps the most extreme example of the tyranny of the majority is abortion: Unborn fetuses obviously cannot partake in the political process, and therefore are, for the purposes of this discussion, a minority which has been “outvoted.” What could constitute more natural yearnings than to be born and to develop into a human being?! Nonetheless, abortion is a widely accepted practice even in those advanced societies with the greatest protections for fundamental rights.
The requirement that law is whatever can be enforced is also imprudent, and simply untrue. In his speech to the people of London, the character V in V for Vendetta eloquently addressed the issues of truth and enforceability in the law:
There are of course those who do not want us to speak. I suspect even now, orders are being shouted into telephones, and men with guns will soon be on their way. Why? Because while the truncheon may be used in lieu of conversation, words will always retain their power. Words offer the means to meaning, and for those who will listen, the enunciation of truth. And the truth is, there is something terribly wrong with this country, isn’t there? Cruelty and injustice, intolerance and oppression.9
V, like our Founders and Dr. Martin Luther King Jr., recognized that the truncheon was simply not an adequate substitute for the principles of “fairness, justice, and freedom”; the enforceability of unjust laws cannot change the truth that our Natural Rights are being transgressed.
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Conclusion
Although we have explored at length how man-made law must be subject to the Natural Law, perhaps the best indication of the falsehood of Positivism is that, deep down, we know that the transgression of our natural rights is wrong. We do not simply disagree with it, but feel a sense of visceral outrage that one human would try to treat us as inferior and subject to his will; it is antithetical to our selfhood. Thus it is in our human nature not just to yearn for freedom, but to recognize when those yearnings are unnaturally restricted.
Elsewhere, V referenced Thomas Jefferson when he stated that “people should not be afraid of their governments. Governments should be afraid of their people.” It should be clear that Positivism’s scheme of