The Anti-Democratic Absurdity Of The Claim That Morality Has No Place In The Law

I suspect that Lolade Siyonbola's assessment of Sarah Braasch is correct.  Her assessment as heard on the recording of her exchange with the cops Braasch called to arrest her for sleeping in her residence hall while black, that she's nuts.  But at least some of her nuttiness is endemic to large numbers of educated people.   I read the Daylight Atheism article that was mentioned in what I linked to, yesterday and it's wacky.   I would have liked to read the other things Braasch wrote but apparently The Humanist magazine and The Freedom From Religion Foundation were shocked to discover that they'd published and posted some pretty racist articles that they've had up for years and, once this incident became public, they took them down.   You wonder what it was that they found objectionable now that they didn't catch then.  Talk about the effects of shining daylight on things.

So what she wrote that I want to focus on here is only available to me in a quote in Heavy,com article I linked to and quoted.   In that article Braasch was quoted as claiming,  "I am not infrequently verbally vilified for asserting the claim that morality has no place in the law."

That is a claim which I've heard other people make, it is one of the stupider holdings of the quasi-anti-religious, atheist, secularism that was made the law of the land by Supreme Court rulings, though I don't believe it was ever explicitly enshrined in any Supreme Court ruling.  I know it was an idea that was central to the thinking of one of the most absurdly and contrafactually adulated figures in the past century,  Oliver Wendell Holmes jr. as he attempted to make the law more scientific, or at least to make the law into a pantomime of the methods of science for the purpose of achieving predictability.
 
Science, of course, has, by nothing more necessary than common consent, been exempted from any considerations of the morality of what scientists do to find things out.  That is why there have been serious arguments about whether or not the Nazi's science derived from using people as experimental animals and murdering them should really matter, whether those moral atrocities should impinge on the status of that intellectual product.   If you want to read more about that you might want to look into the number of Nazis who worked in biological and medical science (see the debates surrounding the anatomical atlases of the Nazi Pernkopf' which likely used people murdered by the Nazis as subjects)* those who were involved in providing their fellow Nazis with propaganda in support of genocide and murder but who had no problem remaining in science after the end of the Second World War.   Or listen to Tom Lehrer's famous song about Wernher von Braun and how the United States gave him an honored position in science and technology though he was very arguably a war criminal.

But, getting back to the atheist piety that "morality has no place in the law,"  like the non-scientific non-sequitur formula of their scientistic faith,  “What science cannot discover,  mankind cannot know.”  the atheists not only don't believe in this one themselves,  they can't escape holding that position on the basis of moral assertions.  The very declaration is a declaration of morality.   Read the Daylight Atheism article in opposition to hate-laws by Braasch, herself, it is redolent with moral claims as to what the law ought to be, how it should be.  Consider this passage, identifying the number of moral assertions contained in what she claims:

Hate crimes legislation is stupid. Seriously stupid. Abominably stupid. I hate hate crimes legislation. But, I love hate speech. Hate crimes legislation has a chilling effect on free speech and freedom of association. This is why hate crimes legislation is in direct contravention of the First Amendment of the US Constitution.

Let's start counting the unstated moral positions held in it, from end to start. 

1. It is a moral claim that the First Amendment should be followed in the law.  Not to mention that all of the individual parts of the First Amendment are, themselves, moral positions.  In order for it to be held that contravention of it is wrong and should not be allowed, you have to hold that moral stand.

2. It is a moral stand to claim that people have a right to free speech and freedom of association, it is a moral stand to claim that other people and the government have an obligation to permit the exercise of those rights.

3. It is a moral stand that the right to hate speech is superior to the rights of people to not be subjected to hate speech.  One which, considering the number of occasions that hate speech leads directly to hate in action is the moral claim that that right is more important than the rights of those who are the object of hate speech, up to and including the violation of the very same rights that Braasch champions for haters.  Not to mention, frequently, the right to hate speech is superior to the right of the intended victims to continue living.

4.  There is an overriding moral claim that what Braasch likes in regard to this is superior by some asserted virtue of  it being consistent,   It is an overriding claim that consistency has moral superiority - even though the consistency of the position is the product of willfully ignoring the results of hate speech in real life as opposed to legalistic, theoretical blather.

That could go on.  You could read every single claim made by Braasch in that article and see that, literally, just about every claim she makes as to what the law should do and be is based on positions of morality, though as so many such secular-amoralists do, they frame those as desiderata they can be reasonably sure their readers will agree with.

The idea that laws that govern real people, in real communities and societies, all of them possessing rights, moral obligations to respect rights, rights and, even more so, interests that will inevitably come into conflict, people who will try to enforce their self-interests even or, especially, at the cost of other people and groups of people, . . . can pretend to avoid making moral distinctions and moral positions is about as unrealistic a fantasy as has ever been promulgated among allegedly rational people.

One of the commonest habits that lead to the position of atheist-scientistic secularism is to ignore the complexity of real life in favor of opportunistically theoretical models of the kind so beloved of those who want to pretend that their preferred thinking has the status of scientific objectivity.   That so many do that now is one of the real and ridiculous achievements of pretending that human beings and societies are material automatons who can be governed by aping the abstract considerations of the regular operations of physical phenomena that constitute the legitimate subject of science.   But real life among real people is nothing like that.

I have come to think that Bertrand Russell, who gave that absurd claim of scientism and Oliver Wendell Holmes jr. were motivated in their thinking by their common habit of screwing around like tom cats.  I think that's one of the foremost motivations in the claims such as the one that the law should have nothing to do with morality.   I really can't understand how smart people like Russell or Holmes could hold such blatantly self-contradictory positions and get away with it among so many well educated people except that it is a pose to mask some rather base personal desires. 

Note:  I have before talked about the use of Oliver Wendell Holmes jr's legal writings by the Nazi criminal defendants at Nuremberg and the arguments that since the Nazis had made much if not all of their moral outrages legal so there was no legal basis for prosecuting them.   If Ms. Braasch's concept of expunging morality from the law became a reality, such legalistic arguments would lead to a world in which such as the architects of the Holocaust and the other genocides of the Nazis could not be held responsible because all they would need to do, in office, was to make what they wanted to do legal.  It could very easily happen here under the Trump-Republican-fascism that we have right now  

And the problem of it is far more extensive than that.  I would like someone who supports that atheist-secularist position to explain to us how a minority, such as the c. 35 % who support Trump could not be said to have a right to use their huge private arsenals to violently take over the government and turn it into a totalitarian fascist regime if morality had nothing to do with it. Democracy, even in its "liberal" form instead of its legitimate, form egalitarian democracy, is based absolutely in holdings of morality.  Without a basis of morality the very concept of law is a meaningless fiction masking the exercise of might makes right, government by the most ruthless and violent, a mafia state.  

* I have read arguments dismissing any moral consequences for those anatomical books based on the artistic merit of the paintings of the dissected bodies, that it would be some kind of violation of free expression to call their moral standing into question.  You have to ask why the  post-war editions that reportedly removed the Nazi symbols that the Nazi artists included as they signed their work was not also a similar violation of the artistic expression of the artists.  Clearly, artistic expression is a sometimes thing.  I think the idea that you can remove moral considerations from art is another of the clearly pudding-headed claims of such secularist amorality.