The Rule of Law in a Free Society

D.M. Hallowell, a close friend of this blog and normally one of the most insightful pundits in cyberspace, has now written several posts harshly criticizing the Fundementalist Church of Latter-Day Saints (FLDS). FLDS, of course, broke off from the main Mormon Church (The Church of Jesus Christ of Latter Day Saints) over the issue of polygamy.

When Texas raided the FDLS compound, taking every child from his and her parents, I criticizerd Texas. When the courts ruled that this was an abuse of power, I praised the courts. D.M.’s unhappy with this.

As he writes, “This is one of those can’t define it but know when I see it situations.” While guy instincts are wise in many areas of life, legal philosophy is not one of them. A free society requires laws that prevent specific actions, as all that is not forbidden is permitted. An illiberal society which is run by the emotional biases of those in power forbids all that is not permitted, and so injurs freedom.

D.M. then proceeds to give several reasons in support of total child removal. As I understand them, they are:

a) the FLDS supports an alternative lifestyle that is not normative

b) The Head of the FLDS is a convicted sex offender

c) The FLDS religiously instructs its followers to school their children within the FDLS community

d) FLDS views on marriage are anti-feminist

In response to the first two:

a) Normative sexual and family norms do not define lawful conduct. The laws define lawful conduct.

b) Obviously, this is serious (indeed, it is the only serious point in the list). As the status of criminals in the United States is properly handled through the courts, I take no view on this point other than what the courts say.

For the third point, the right to homeschool children is widely recognized (albeit with regulations) in every state in the country. Homeschooling is not just for those of the leisure class who believe their children are being held back by public schools, but also for those who disagree with the socialization in values supported by the State. It is for this reasoning that home schooling was so loudly agitated for by both the Left and the Right from the 1960s to the 1990s.

For the last point, D.M. appears to be referring to the FLDS that wives are “sealed” to their husbands and enter into heaven as part of a family. It is my understanding that this is also mainstream Mormon theology. A similar concepts (that men enter into heaven in their earthly bodies, but women enter into heaven in their perfected bodies) occurs in Islam. While I certainly urge all members of the FLDS to convert to the true practice of the true faith (the Latin rite of Catholicism, obviously), I also recognize their right to a theological perspective on sex and gender roles that is different from mine.

Indeed, I’m surprised that D.M. even brought up the last two points, as their implications are so chilling. Would D.M. alsos support raids of the Hutterite Colonies along the Jim River, because they practice sex-segregated meals, obedience of wives to husbands, and community-based schools? What about the Amish? Or does D.M. support police power only against polygamist religions, such as Islam?

I know that D.M. said he beliefs this without thought, relying on his feelings. But I emphasize that replacing the rule of law in a liberal society with the rule of prejudice is very dangerous. Indeed, the rule of prejudice will surely generate an illiberal society.

(In spite of this, I do not support the police taking the children of prejudicial illiberals away from their parents. Those families, like mine, have rights in a free society. Even if they oppose it.)

3 thoughts on “The Rule of Law in a Free Society”

  1. An excerpt from my response…

    If I am reading your latest post correctly, you are abandoning the know-it-when-you-see-it justification, as well as arguments that this was justified because FLDS home schools its children, has an anti-feminist theology of sex and gender, etc, and are instead asserting that the raid was justified by the charter of DFPS.

    This is a more technical claim, though its still questionable. Removing even a single child from a home is purposefully hard, and the system is biased in favor of natural parents. Texas claimed a lot in taking the children away: more than it was justified for doing so.

    Further, the reason for doing so was religious. As you appear to describe Texas’s reasoning, FDLS was a cult. An unpopular, small, and tight religious community with different norms that the rest of society.

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