American Law Is Becoming an Ass
Whatever objections may be leveled at Ayn Rand’s objectivist philosophy, she certainly knew what arbitrary law looked like. Her father’s business was seized during the Bolshevik Revolution, and she herself was purged from Petrograd State University because she was considered a member of the bourgeoisie.
When arbitrary law is established, the law becomes an ass. In other words, the law as created by legislatures and administered by the courts cannot be relied upon to reflect common sense or to be fair.
As Rand later wrote: “The threat of sudden destruction, of unpredictable retaliation for unnamed offenses, is a much more potent means of enslavement than explicit dictatorial laws. It demands more than mere obedience; it leaves men no policy save one: to please the authorities; to please -- blindly, uncritically, without standards or principles; to please -- in any issue, matter or circumstance, for fear of an unknowable, unprovable vengeance.”
America is gradually acceding to the arbitrary law Rand knew so well. Be it unwitting transgressions against the latest permutation of leftist ideology or ignorance of sheer bureaucratic complexity, any American peaceably sitting in the family living room can be accused of breaking the law. Under capricious law, the citizen cannot know when he or she will be charged with some offense against the powers that be. The result of chronic uncertainty is perpetual anxiety leading to ulcers of the spirit.
The result of the Bolshevism that Rand rejected was, Alexander Solzhenitsyn remarked, the knock in the middle of the night. One never knew when to expect “The sharp night-time ring or the rude knock at the door. The insolent entrance of the unwiped jackboots of the unsleeping State Security operatives.”
Why is Western law inviting collapse into Soviet style mere caprice?
Speaking generally, the justificatory bases for Western law can be divided into two categories; one basis being the Judeo-Christian law as summarized by the Ten Commandments and undergirded by the realities of natural law. The other, especially in the last century or so, is arbitrary law decided by a political party’s ideology.
American law has increasingly followed the Bolshevist model as the progressive Left has sought to enshrine its political ideology into law while eliminating through persecutory and arbitrary procedures certain classes of people who are the equivalent of the bourgeoisie represented by the kulaks.
As Lenin put it, certain classes of people are “insects” worthy of eradication. As Solzhenitsyn noted, categories of “insects” proliferated like vermin. Anyone opposing communist ideology was an insect:
“The people in the local zemstvo self-governing bodies in the provinces were, of course, insects. People in the cooperative movement were also insects, as were all owners of their own homes. There were not a few insects among the teachers in the gymnasiums. The church parish councils were made up almost exclusively of insects, and it was insects, of course, who sang in church choirs. All priests were insects -- and monks and nuns even more so.”
One “insect” among many in the teeming American Christian anthill is Jack Phillips, the baker whose case will be ruled on before the Supreme Court. An insect like him dared to act according to his conscience, angering a same-sex couple who believed that ant Phillips must be crushed underfoot and his business destroyed. Phillips was basically presented with a choice: Convert his thinking to conform with LGBT ideology or effectively perish as a functioning member of society.
Thought crimes such as Phillips was accused of create a category of capricious law that has been and are particularly useful for what is essentially retooled Bolshevism done American style. There is no end to legal arbitrariness if thoughts are crimes, for thought crimes make a mockery of the rule of law. Actual guilt or innocence are completely unmoored from the law, which traditionally is supposed to assign guilt to actual transgressions. Anyone can be charged as guilty if he or she will not speak the Newspeak, now characterized by gender-neutral terminology.
Now one can, by attributing a wrong thought or word, make a man out to be guilty, as Canadian Professor Jordan Peterson found out when he refused to use gender neutral pronouns on demand. The idea was that Peterson must employ the language utilized in transgender liturgy or be declared heretic and worthy of excommunication from academia.
For the left, thought crimes as evidenced by “wrong” speech are revelatory of wrongfully privileged class status; therefore, certain classes such as the conservatively or religiously inclined who speak about moral and observable verities must be suppressed, banned or even eliminated. Arbitrary law becomes a useful tool through revolutionaries accomplish the destruction of whole categories of enemies such as “privileged” white males like Peterson.
A few contemporary observers are able to sum up the essence, problems and consequences of arbitrary law. Dmitry Dubrovsky is one of them. In an essay published in Eurasianet, “The Bolsheviks and the Law: The Legacy of Arbitrary Justice,” he writes arbitrary law is the essence of revolutions, which are meant to overhaul existing orders:
“The Bolsheviks did not see the law as a means to adjudicate civil and business disputes, or to dispense justice blindly; they viewed it as a mechanism to implement their social and political agenda… The law, for the Bolsheviks, was the means toward that end, an instrument of persecution, not of dispensing justice… The law, along with the system’s functionaries, was expected to serve the interests of… the party running the state.
“[The law]… codified inequality, elevating a certain class, the proletariat, to preferred status. At the same time, it limited the rights of others, namely anyone deemed to be a member of the bourgeois class. It created conditions in which it will be impossible for the bourgeoisie to exist, or for a new bourgeoisie to arise.”
Scarcely any clearer description of the goals of the American left concerning the law could be found. What rational observer cannot observe the unyielding assault on the rule of law as the left inexorably and relentlessly seeks to eliminate any distinction between the law and the left’s will? Who cannot see that as the law is increasingly detached from its traditional Western moorings, it has increasingly become a mere manipulative tool to persecute and oppress political and religious opposition, all the while seeking to undermine every institution that still has even a tenuous alliance with the Judeo-Christian concept of law as having its genesis in a transcendent order?
“Even during the late Soviet period… Soviet law remained arbitrary, in that Kremlin leaders… continued to manipulate the law, using it as an instrument of repression. Political factors, not legal precedents, determined judicial decisions.”
Dubrovsky concludes that inequality was codified so a certain class might be elevated to preferred status.
Again, what objective observer cannot see that the left in America is attempting to duplicate the Bolshevist society described by Dubrovsky, seeking to establish a radically different class system -- one that is replacing the permeability of classes that has so long been the mark of American society and the basis of the American dream? Who cannot see that some categories of people are now more equal than others?
At the heart of the changes in the rule of law is the revolutionary desire to eradicate any opposing world view, particularly one that believes in actual concepts of guilt and innocence. As Solzhenitsyn notes, for the left “A convenient world outlook gives rise to a convenient juridical term: social prophylaxis in order an ideological world view is cleansed of opposition -- the intellectual rot of Christianity being among the intellectual diseases that need cleansing… In addition, how many kinds of cursed intellectuals there were -- restless students and a variety of eccentrics, truth-seekers, and holy fools… who are always a hindrance to a well-ordered, strict regime.”
Solzhenitsyn concluded that political guilt replaced actual guilt. One party rules today; and another rules tomorrow -- with a different set of rules. Power alone reigns, enabling repression of the most malevolent sort to flourish:
“The proofs of guilt were relative, approximate, and the interrogator could find them, even when there was no evidence and no witness, without leaving his office, basing his conclusions only on his own intellect… Thus it was that the conclusions of advanced Soviet jurisprudence, proceeding in a spiral, returned to barbaric or medieval standards. Like medieval torturers, our interrogators, prosecutors, and judges agreed to accept the confession of the accused as the chief proof of guilt.”
The confession as proof of guilt is one reason why we now witness a constant parade of confessions and retractions by leading figures left and right. Confession establishes guilt and retraction removes it. The whole process is circular and endless self-justification and self-exoneration. One is one’s own prosecutor and defender; judge and jury, sentencer and parole officer.
The result? The law becomes an ass.
The solution? Return to the rule of law based on Law that transcends the individual and is applicable to every man and woman; namely, the Judeo-Christian ethic based on the Ten Commandments and natural law.
Fay Voshell is a frequent contributor to American Thinker. Her thoughts have appeared in diverse online magazines, including RealClearReligion, LifeSiteNews, Russia Insider and National Review. She holds a M.Div. from Princeton Theological Seminary, which awarded her its prize for excellence in systematic theology. She may be reached at firstname.lastname@example.org