Jurisprudence, penology, and pro-life

A very good comment was made on yesterday’s blog post about Mexico and a pro-life decision by their Supreme Court. It said in part:

My educational background is partly in criminology. I couldn’t help but notice your juxtaposition between the legal prohibition of abortion and the rampant gang activity in Mexico. As my tribe (Methodists) did in the early 20th century for pushing the abolition of alcohol, the result was a growing black market and unprecedented growth of organized crime. We see the same problem today with the so-called “war on drugs.” Banning abortion isn’t going to make it go away. All it did was drive it underground. There will be a highly lucrative market for back room abortions in that country. Baby will still die, but now, so will many more women. And organized crime will become more powerful, and the Mexican government les legitimate.

I thought we figured this out already; law is death (even when we think its life giving), love is life.

The problem with the comments above is that if the logic they espouse is driven out, it makes law impossible. First, let me tackle the opposing view to the one espoused above. Whatever their theological claims, many American Evangelicals are legalists when they step outside the church building on Sunday. Grace only applies for church matters, legalism rules otherwise. The insistence by many of those Evangelicals that we are a country of the “rule of law” and that this means that governors and the President should never grant amnesty to criminals, or that granting any type of amnesty will somehow undermine that “rule of law” shows that very legalism. The fact that the Founding Fathers built into the Constitution the possibility of amnesty by the President argues that our Founding Fathers never intended the rule of law to be a principle of penology, but rather a protection from capricious officials.

Think of how often even American Evangelicals, as Evangelicals, will oppose any rehabilitation of criminals who have served their sentence and you see not simply the rule of law–which says that once a person has “paid their debt to society” they can begin again–but rather an older darker desire for unceasing vengeance. This is the reason why America has both the largest total number of prisoners and the largest proportion of its population in prison than any other country on earth. Our popular approach to penology is the simple one that people must be punished. Thus penologists may argue for diversion programs or “civil” punishment, but our population demands jail, even for crimes that are handled in a non-jail fashion by other First World countries.

In passing, it is Article II, Section 2 of the Constitution which states that the President may, “grant reprieves and pardons for offenses against the United States.” It was under that article that President George Washington granted amnesty to those who participated in the Whisky Rebellion in 1795. It was under that article that President Andrew Johnson granted amnesty to most Southerners after the Civil War on 29 May 1865. It was under that article that Presidents Roosevelt and Truman granted amnesty to several thousand World War II draft dodgers during the year 1945. It was under that article that President Jimmy Carter granted amnesty to the draft-dodgers and those who fled to other countries on 21 January 1977.

But, the proposition presented in the comment quoted in the beginning above partakes of the other extreme of the equation. If carried to its logical conclusion, almost no law could be enforced since–by the commenter’s definition–any law is death and leads to the growth of criminal syndicates. I would point out that Saint Paul’s argument in the Epistle to the Romans is a bit more subtle than that. Remember that he said that the Law was good. His argument was about attaining salvation, not about governing a country. When he does address the governing of a country in Romans 13, he counsels obedience to the laws of the country and asserts that it is God who has given government not only the right to make laws but also to enforce the laws that we are asked to obey. Yes, of course there are times when we must disobey. Saint Paul died disobeying some of the laws, but the principle otherwise stands. The moral law expresses God’s character and is good because it teaches us what he is like and something of his character. The laws of countries should–in a much more general way–reflect God’s character in the principle espoused in Romans 13 that those who are good should not have to fear the law, only those who are evil.

In fact, modern libertarians do make a minimalist argument for government that does tend to argue that part of the reason why there should be minimal law is precisely the problem of enforcement. But, so do many other groups, and some make a similar argument in matters which would give the majority of both Christians and non-Christians pause to think. Often the argument is that provided that no one is being harmed, then the government need not involve itself. For instance there are even groups that argue that zoophilia should be legal. Yes, I know that this is an extreme group, but it lets me make a point. Every government on Earth has laws forbidding some behavior or other that would not otherwise damage either the person involved in the behavior, or anyone else. Every human group on Earth reaches a line which they will not cross nor allow anyone else to cross. That is, every government on Earth has laws that are not based on minimalism but are based on both their religious and cultural morays. And, I think that is a good thing.

===MORE TO COME===