07 October 2009

Moore is less

As some may have noticed I have moved more to a bit of commentary here and there and less to blog posts, but as I had done before and put down over-long comments, I continue to do.  So to capture some of that blather, I will hand you what I put down at Hot Air which had an article about Michael Moore being interviewed by Sean Hannity and the question of forgiving of al Qaeda in respect to WWJD was brought up by Moore.  Most of the interview was spent on such things as Moore's recent movie and how those NINJAs that took loans were, to Moore, equivalent of rape victims... because they entered into contracts as adults and couldn't meet their obligations.

Little does anyone suspect that these two things, forgiveness of al Qaeda and loans from contracts, are intimately entwined.

I just have to go back a bit to show why.

What follows is as posted in the commentary, and as I am pretty busy I probably won't be able to respond there as being a little bit better doesn't mean I'm at all physically well.

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al Qaeda is not just a foe nor even normal enemy. Such is the view of Law of Nations as seen by de Vattel in Book III:

§ 67. It is to be distinguished from informal and unlawful war.

Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.

By engaging in Private War, illegitimate to all of mankind, al Qaeda breaks with civilization entirely. They have declared themselves beyond the bounds of all laws and set themselves up as the only ones fit to judge their actions. Each and every member does this and, in joining with al Qaeda, steps away from the protection of the civil law prefering, instead, God’s Law of Nature which red in tooth and claw.

Nor is this isolated to just this venue, as de Vattel worked with Blackstone who wrote commentaries on the Common Law of England. Before the Revolution this is how Private War in the realm of Piracy, which is no different from any other sort of illegitimate war, was seen:

LASTLY, the crime of piracy, or robbery and depredation upon the high seas, is an offense against the universal law of society; a pirate being, according to Sir Edward Coke,10 hostis humani generis [enemy to mankind]. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: so that every community has a right, by the rule of self-defense, to inflict that punishment upon him, which every individual would in a state of nature have been otherwise entitled to do, any invasion of his person or personal property.

BY the ancient common law, piracy, if committed by a subject, was held to be a species of treason, being contrary to his natural allegiance; and by an alien to be felony only: but now, since the statute of treasons, 25 Edw. III. c. 2. it is held to be only felony in a subject.11 Formerly it was only cognizable by the admiralty courts, which proceed by the rule of the civil law.12 But, it being inconsistent with the liberties of the nation, that any man’s life should be taken away, unless by the judgment of his peers, or the common law of the land, the statute 28 Hen. VIII. c. 15. established a new jurisdiction for this purpose; which proceeds according to the course of the common law, and of which we shall say more hereafter.

Thus Piracy is a two-fold act in the Common Law. First and foremost it is a violation of the Law of Nations, which is that area of law that we create in our associations with others. The Law of Nations is NOT part of the civil law as noted by Bracton centuries before Blackstone when he wrote his commentaries on the Laws of England. It is one of the strongest views of how we create society via those associations:

What the jus gentium is.

[017] 33The jus gentium is the law which men of all nations use, which falls short of
[018] natural law since that is common to all animate things born on the earth in the
[019] sea or in the air. From it comes the union of man and woman, entered into by the
[020] mutual consent of both, which is called marriage. Mere physical union is [in the
[021] realm] of fact and cannot properly be called jus since it is corporeal and may be
[022] seen;34 all jura are incorporeal and cannot be seen. From that same law there
[023] also35 comes the procreation and rearing of children. The jus gentium is common
[024] to men alone, as religion observed toward God, the duty of submission to parents
[025] and country, or the right to repel violence and injuria. For it is by virtue of this
[026] law that whatever a man does in defence of his own person he is held to do lawfully;
[027] since nature makes us all in a sense akin to one another it follows that for one to
[028] attack another is forbidden.36

In creating families the basis for all other forms of human community are formed: without that basic understanding of the necessity to give up a portion of our liberty to sustain our children, we cannot create civilization. The civil law comes long after that basic association, which makes the law of nations, jus gentium, primary law even when it is unwritten. The writing of de Vattel was to help codify that unwritten law, to have a basis of common understanding solidified so that we could understand this thing we create called ‘nations’. Bracton continues on, and really Mr. Moore, by asking the question, raises the exact law that crosses from al Qaeda to loan holders, but he does not realize it:

What manumission is.

[030] 37Manumissions also come from the jus gentium. Manumission is the giving of
[031] liberty, that is, the revelation of liberty, according to some, for liberty, which
[032] proceeds from the law of

[001] nature, cannot be taken away by the jus gentium but only obscured by it,38 for
[002] natural rights are immutable. But say that he who manumits does properly give
[003] liberty, though he does not give his own but another’s, for one may give what he
[004] does not have, as is apparent in the case of a creditor, who [may alienate a pledge
[005] though the thing is not his,39 and in that of one who] constitutes a usufruct in his
[006] property.40 For natural rights are said to be immutable because they cannot be
[007] abrogated or taken away completely, though they may be restricted or diminished
[008] in kind41 or in part. 42It was by virtue of this jus gentium that wars were introduced
[009] (that is, when declared43 by the prince for the defence of his country44 or to repel
[010] an attack) and nations separated, kingdoms established and rights of ownership
[011] distinguished. Individual ownership was not effected de novo by the jus gentium but
[012] existed of old, for in the Old Testament things were already mine and thine, theft
[013] was prohibited45 and it was decreed that one not retain his servant’s wages.46 By
[014] the jus gentium boundaries were set to holdings, buildings erected next to one
[015] another, from which cities, boroughs and vills were formed.47 And generally, the
[016] jus gentium is the source of all contracts48 and of many other things. What long
[017] custom is will be explained below.49

Civil contract law comes from that basic law that we create amongst ourselves, the private law of jus gentium. Beyond families, when we build and create and live near to others, we have an understanding of property as the creative act is the exercise of liberty on our own behalf. It is with liberty that we create, that we do associate and that we create the very laws we live by. Liberty goes beyond property and to the very heart of all our rights: without liberty we have no rights. We yield a portion of our natural liberty, which is our negative liberty, to our associated creation which is society, the state and the Nation. In resuming these rights, those in any organization or, indeed, alone, who practice Private War are no longer bound to our loving grace. It is not we who absent them from civil society, but their actions which do so. Those who remain in the civil realm, who have exercised liberty and then are unable to sustain their contracts are bound by the jus gentium for civil penalties if such have been established and private ones if they have not. Still, via Bracton, those private ones are established by area and venue in the Common Law, and not created out of thin air but by common agreement in the local society.

The second venue is the civil law, of course, as that is part of the fruits of jus gentium. Here differing Nations decide venues for prosecution differently. Up to the time of Henry VIII the violations were those of either War or Admiralty, depending on venue for land and sea. The sea based portion, as it deals with the problems of contracts, was moved to the civil law save for those portions dealing with National Letters of Marque and Reprisal so as to harm those who have reverted to Nature and recognize no civil discourse. We withhold love and forgiveness until those who have become such enemies to all that is civilized realize their error and submit themselves to the civil law. As we are not God, not Divine and cannot hold all forgiveness in our hearts and are only mortal, we recognize that the boundaries of our very mortality guide us in creating jus gentium. We add penalties to both the civil and military realms for those who break that basis of civilization. Final forgiveness is for that which has it within them to hand out and we would presume too much and forget that we are mortal if we are expected to hand out forgiveness without seeing repentance and submission to the civil law so as to win back to the jus gentium.

In God we trust.

All others pay cash.

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I'll say this much: Michael Moore doesn't realize the two topics are part of the same venue.

But then the modern Left has been trying to have us forget just how and why we do come together to each other.  And why the Law of Nations is not a description of 'international law'.

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