Video Transcript: Criminal Law

Let's consider a few more examples of the kind of law and practice that is  generated out of this corrected view of the state that depends on sphere  sovereignty, and its type law. Again, I'm going to contrast these examples, within the view that Jefferson expressed that rights are only subjective, they're only in  the person, and they're in each individual, but they are not norms for all  societies, and therefore cover communities as well. This has run into even more  severe difficulties, because many people have now contended that a person can have a right of subjective right? Only if they can understand it, and desire what it ensures. What's the point of saying somebody has a right? If a right is there a  subjective condition, and they don't understand the right and don't want what it  ensures to other people, then they don't really have the right. In other words,  they claim that rights develop along with the biological development of each  individual, the relatives to how well, the right is understood, and can be  appreciated. If that's true, though, infants, the severely retarded, the senile, and  anyone in a coma, has no rights. Because they are not understanding the right  or desiring what it ensures. And it's not too big a stretch to say if they have no  rights, whatever then it's okay to kill them. Or take a normal person who's  transported from some more primitive society into a modern state. It's going to  take that person a while to understand the notion of rights in the legal system  and appreciate what the rights guarantee him or her. Does that mean that until  and unless they understand all that, they don't have those rights. Those are  such hard consequences that I'm sure horrid, not hard, they are in such horrid,  awful consequences, that I'm sure that we don't want to be taking that position.  There's another issue that comes up concerning rights if they are only subjective conditions of individuals. How do we identify them? Jefferson says, All men are  created equal. That's clearly an idea. He got out the Bible that everyone is  created in the image of God, and therefore he should have equal legal standing. We know that he knew that because his first draft of the Declaration didn't say  that all men, it's self evident that all men have those rights. The first draft said,  we hold it to be sacred and undeniable that all men are created equal. So there  was a direct real reference to the scriptural source of that belief. Franklin's the  one who talked him into taking out sacred and putting self-evident. But even so  how do we how do we identify the rights? How do you know which rights people  are born with? You see, it's easy to say if you if the what the guarantor of the  rights is the norm of just all people are gonna be treated with justice, all people  are gonna be treated with love. We're going to make the laws to make sure that  injustice is due or cannot be visited on someone without risking punishment. But he hasn't got that. He's kissed that off. In which case, people can claim anything  is a right. And they often do, in other words, rights, degenerate into desires. It's  not the case of anything I may desire. I have a right to. But that's the way it turns out. Okay, you don't want to do that. We'll say it's our right. How would you  know? Well, from the view, expounded by Kuyper, and filled out and elaborated 

in great length by Dooyeweerd if you first start with the qualifying the leading  function of the state, you look at sphere sovereignty as the background, look at  the type law for the state. Now you ask what's just in this immediate  circumstance, then you could say people have these rights that they need to be  in the interest of justice. This is what needs to be guaranteed, not just anything  they deserve, they desire. Not only that, we need to have the distinction for  politics, between legal rights and moral rights or legal goods and moral goods.  And this distinction, though it's obvious in our sphere sovereignty view only lists  the aspects. Justice is one. That's what's fair, it's giving every man's do. That's  the old expression for it. But love has to do with love your neighbor as yourself.  So justice and morality aren't the same thing. And if you don't distinguish those  two, you end up arguing the way some people have I've read some of this, that  because someone has a certain moral right, they also have, because one  person has a moral obligation, the other person has a legal right. That doesn't  follow, you've shifted the meaning of the term that's called equivocation in logic.  For example, I am under a moral obligation to aid the poor, every Christian is.  So our moral obligation aid the poor. That doesn't mean that every poor person  has the legal right to be to my money. You can't go from the moral sense to the  legal that way. In Jesus story of the Good Samaritan, the Samaritan, sees  somebody who's been beaten and left by the side of the road, the man is going  to die. He takes him to the inn, and he pays the innkeeper, take care of him, see that he gets well, that's an act of love. Over and above, the Good Samaritan  didn't know the man that was hurting. But he saw somebody in need, that fulfills  the commandment Love your neighbor as yourself, it's a wonderful example of  it. The Good Samaritan, however, was not under legal obligation to do that it  was a moral obligation. Finally, we might have some reservations. Or some of  you might be asking, Well, how is this theory fair, in relation to what's known in  the United States, as the wall of separation between church and state?  Jefferson was the one who coined that expression. And what he meant was, that he didn't want churches to tell their members that this that or the other law  pending law was wrong or that we need a certain law, and then have the church  be dictating to the state what it should do. There's an element of truth in this and there's an exaggeration, that's falsehood. In the first place, no two institutions in  the same society can really be walled off from each other. It's not even the case, that you have to make a rule that says that if an individual citizen is a citizen of a state, and a member of a church, that that citizen can't serve in the government,  or serve on the board of a church. That's not it. It's the qualifying nature of each  each has a different qualifying leading function. So the same person can  function in in both of them, but puts on a different hat when he goes to church  and puts on a different hat when he goes to the legislature. It's not that the  religion is going to dictate the laws. The laws are the ones are for the state, are  the ones that people are in good faith, on reflection on the commandment to be 

just and fair to all people try to work out that to the best of their ability. It means  what Jefferson was worried about was the state taking orders from a church.  This doesn't violate that at all. The proper activity of both church and state is  here defined more clearly than it has been in the past in US jurisprudence. This  is these are some of the benefits, only some that we can point to that accrue to  us if we start by looking for a distinctly Christian theory of reality. We distinguish  the kinds of properties and laws that things exhibit and we look for the  relationships between those we look for what qualifies the thing, that is the  highest aspect in which it functions has its property actively, and with the laws of which govern its internal organization Taken as a whole, we look at artifacts and  their distinctive kinds of nature where they're produced by human formation, but  then qualified by different leading functions, which in which they have properties  only passively. Then we look at the state as a particular example of one such  institution. We look at sphere sovereignty, as the theory for how the different  elements in society should relate the distinctions between them, and the  different institutions, no one in charge of the others, no one should encroach  upon the others, the state has committed to its charge public justice. That's right. But that doesn't mean that the state can interfere with parents raising their  children. But if a crime was being committed, it would be a matter for the state,  the state may not interfere by forcing everybody to be the member of one  church. But if members of a church are having a severe dispute over property or something, the state has a right to step in and adjudicate that kind of thing is  very powerful, and very liberating, then we look at the type law for a state. And  we see that it's the relation of right and might and that the right needs to control  and check the use of power at all points. And it needs to do it effectively.  Otherwise, this runs away, then the might takes over and does whatever it  wants. And then finally, we take specific instances of how this prescribes the  relationship between different institutions. In the last one, we ended up with the  state and the church. I hope you find this helpful. I have found it enormously so.  And there is a great deal more to read and be said about it. There are many  examples of more examples of laws that need to be passed laws that shouldn't  be on the books in the light of this view of the proper role of the state. And with  that, we end