Chapter 19: The Four Laws Government Must Obey to Protect Human Rights
The Four Subdivisions of the Golden Rule
The purpose of government is to protect our rights to those four possessions without which the exercise of freedom is impossible. Those four possessions or elements of freedom are: (1) Life, (2) Liberty, (3) Property, and (4) Knowledge. However it can do this only by (1) punishing those who intentionally violate their duty not to injure these rights, and by (2) compelling those who owe a duty to discharge it. In performing these two functions, governments carry out the provisions of the Golden Rule.
But ofttimes governments punish those who have intended no evil, and compel the performance of duties which are not owed. Such abuses of power are obviously contrary to the Golden Rule. The four sub-rules then which governments must comply with in carrying out their functions in accordance with the Golden Rule are: In punishing evil government must:
1. punish the intentional violation of duties;
2. punish nothing except the intentional violation of duties;
In enforcing rights government must:
3. enforce existing duties;
4. never create nor abolish duties.
We shall now undertake to demonstrate that governments must obey each of these four subdivisions to the Golden Rule in order to protect the four elements of freedom. [p. 132]
Law One: Government must Punish the Intentional Violation of Duties
Probably every one agrees that governments must punish crime to some extent. While there may be differences of opinion regarding what constitutes a crime and how severe penalties should be, everyone desires that government protect his life, liberty, property and knowledge. Since the only way such protection can be afforded is by punishing the evil which causes the loss, everyone favors punishing some crimes. Let us attempt then to come to a unity of belief regarding what crimes should be punished and how severe the punishment should be.
We first observe that whenever government fails to punish some intentional violation of a duty, it fails to protect the right which is destroyed by that violation. Hence, for every right which society desires to protect, it must penalize that breach of duty which injures or destroys the right.
In view of these facts, if we can all agree on what rights should be protected, then we should all be able to agree on what constitutes a punishable crime. But we reach agreement on this when we recognize that all want life, liberty, property and knowledge protected against those who would intentionally destroy these possessions. In other words if all of us desire freedom, and regard as evil any unjustified attempt to destroy those possessions which are essential to its exercise, we have thereby come to an agreement on what constitutes a punishable crime.
But this is exactly the same test for determining punishable evil as is decreed by the Golden Rule. Therefore unless we have made an error in assuming that all want the four elements of freedom protected, we have proved that the Golden Rule provides a universally acceptable standard regarding what evil should be punished. All have thus reached agreement on this crucial matter regardless of their religious beliefs or lack thereof.
How Severe Should the Punishment of a Crime Be?
Punishments must be severe enough to deter the crime we are seeking to restrain, otherwise the right involved is not protected. On the other hand if the penalty exceeds this, to this same extent it is unnecessarily [p. 133] severe and will cause an injustice to the criminal.
The only standard for punishment ever devised which meets both of these requirements is the one decreed by the Golden Rule. If the offender is made to suffer to the same extent that he intended for his victim, and if he is compelled to make full restitution for the injury, the punishment has proved sufficiently severe to deter the evil. At the same time the offender has no grounds for complaint. By treating his victim in a specified manner, he has established a standard of behavior. Surely he cannot justifiably complain when he is dealt with according to that same standard.
The foregoing analysis demonstrates that everyone, regardless of differences in religious beliefs, should accept the Golden Rule as a standard for the actions of government in the punishment of crime, not only because it comes from the supreme Lawgiver of mankind, but because of self-interest as well. Only by punishing crime according to this standard are the elements of freedom properly protected, and this is a goal desired by every rational being.
Law Two: Government must Punish Nothing Except the Intentional Violation of Duties.
All human conduct may be divided into two categories: (1) Those acts committed or omitted with an intent to do evilthat is to violate the Golden Rule, and (2) Those committed or omitted without such an intent. All criminal laws may be divided into two categories: (1) Those which provide for punishing conduct of the first type; and (2) Those which provide for punishing that of the second.
When a government adopts laws which provide for punishing conduct of the first type, it has reached the natural limits of its power to punish. All criminal laws other than these have the effect of punishing innocent behavior, and this itself is a crime. Even the threat to punish innocent behavior is a crime because those who obey the law out of fear are denied a rightful freedom. While men should not feel free to do evil without fear of punishment, their freedom to do good should be unrestricted. When this is taken from them by the passage of unjust laws, the effect is the destruction of freedom rather than its preservation.
The same considerations which require that the elements of freedom [p. 134] be protected from unjustified destruction by those outside of government, require that they be protected from those within its framework. Men in government should comply with the same moral code which they compel others to obey. History is replete with instances where those in control of the police power and the armed forces have murdered, plundered and enslaved the citizens of their own nation.
Therefore it is of the utmost importance that a precise limit be placed upon the power of government to punish. According to this second subdivision of the Golden Rule, this limit has been reached when intentional violations of duty have been punished. Unless a citizen has undertaken without justification to destroy or injure an element of freedom, he should not be punished.
It Is Illogical to Punish One Whose Conscience Is Clear
Both humanity and justice require that we refrain from punishing a person who has intended no evil. Logic also requires observance of this rule. The purpose of punishment is to restrain and prevent the evil which almost invariably arises from an attempt to commit evil; not to prevent the good which almost always results from an attempt to do good.
When a person undertakes to do good, or in other words increase the elements of freedom, he ordinarily accomplishes this purpose. At least he seldom does the opposite. Therefore, punishing such conduct deprives society of the good which results when people are left free to engage in beneficial activities. Punishing the innocent also destroys one of the elements of his freedomeither life, liberty or property.
Even though a person who undertakes to do good inadvertently causes harm, it is still illogical to punish him. A well-meaning person need not be punished to induce him to try to avoid injuring others. This he does voluntarily. And if he has unintentionally caused harm and has failed to make restitution, the injured party may recover in a civil suit. A criminal action is not brought for this purpose.
Does this second law agree with the Golden Rule? It would be difficult to imagine a more flagrant violation of that rule than that of punishing an innocent person. The rule demands that we treat a person as he has intended to treat others. Therefore to inflict injury on one who has [p. 135] acted innocently, is in direct opposition to the rule. Also since the one inflicting punishment would object to being punished for an act committed with a clear conscience, he must refrain from doing such to others.
The following scriptures assure us that the Lord approves of punishment only when the accused has violated his conscience:
Judge not unrighteously, that ye be not judged, but judge righteous judgment. For with what judgment ye judge, ye shall be judged; and with what measure ye mete, it shall be measured to you again. (Matt. 7:2, 3, JST)
. . . the civil magistrate should restrain crime, but never control conscience; should punish guilt, but never suppress the freedom of the soul. (D&C 134:4; See also Alma 30:7-11)
Law Three: Governments must Enforce Existing Duties
Having considered those two subdivisions of the Golden Rule pertaining to punishments, let us now examine those which determine when government should enforce duties. Once it is recognized that an individual has a right to the elements of freedom, it is also assumed he has a right to recover damages from anyone who unjustifiably injures them. The one causing the injury has violated his duty to refrain from doing so and may properly be compelled to make restitution.
But unless the duty can be enforced, the right which it represents does not exist. Therefore, government must be available to compel the performance of every enforceable duty whether natural or assumed, and determine whether the breach is intentional or due to negligence.
In the situation where the breach of the duty is intentional, compelling the wrongdoer to make restitution is in addition to punishing him. If government does no more than punish such breaches, the victim suffers a loss which remains unredressed. Therefore, he must be able to recover damages in the case where the injury is intentional as well as where it is due to negligence. Under the Law of Moses, both punishment and restitution were handled in the same proceeding. Under other systems of jurisprudence such as our own, two proceedings are used: One to punish the crime and another to assess and compel payment of damages. Today in our society, the types or classes of laws under which [p. 136] government compels the performance of duties have been divided up into the following categories:
1. Tort laws
2. Contract laws
3. Family relations laws
4. Tax laws, military conscription laws and similar enactments which specify the citizens duty toward government.
Tort laws provide for restitution usually in cases where the rights violated are natural rather than acquired. (The term natural right is used herein to describe a right with which we are born. The term acquired right is used to describe a right acquired under contract or agreement) However tort laws sometimes permit recovery for injuries to acquired rights as well. Injuries inflicted in these instances are generally due to the intentional or negligent conduct of the wrongdoer and the tort laws provide for redress in either case.
If the rights injured and the duties breached are acquired rather than natural, relief is usually available under either the law of contracts or that of family relations. In these cases the breach of the duty usually consists of a failure to act. If one fails to discharge duties he has assumed under a business contract or a family relationship, the injured party may obtain the aid of government to compel performance or recover damages caused by nonperformance.
Duties owed to government are enforced under tax laws, laws providing for military conscription, jury duty and similar enactments.
In the foregoing discussion we have treated punishment and compelling performance as though they are two distinctly different methods of protecting freedom. While it is true that punishment should be imposed only in those cases where there has been an intentional injury, whereas compelling performance is usually limited to those instances where there has been a failure to perform a duty, there are instances where punishment is appropriate in the latter situation. If a person who is obligated to perform, deliberately refuses to do so even though able, punishment may be necessary. But let it be recognized that in such an event, the violation of the duty would be intentional and therefore properly punishable.
Since every rational person wants others to discharge their debts to [p. 137] him, he cannot, under the principles of the Golden Rule, object to laws which compel him to discharge his debts to others. Thus the rule that government must stand ready to compel the performance of existing duties is in conformity with that universal standard of justice. The Book of Mormon confirms this conclusion:
Now if a man owed another, and he would not pay that which he did owe, he was complained of to the judge; and the judge executed authority, and sent forth officers that the man should be brought before him; and he judged the man according to the law and the evidences which were brought against him, and thus the man was compelled to pay that which he owed, or be stripped, or be cast out from the people as a thief and a robber. (Alma 11:2)
Law Four: Governments Must Never Create Nor Abolish Duties
People will generally agree that governments should not possess the power to put a person to death, put him in jail or take from him his property unless he has committed some crime or failed to discharge his debts. This is the restraint placed upon the federal government by the following provision of the Constitution:
No person shall be . . . deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation. (5th Amend.)
The only exception to this rule allowed by the Constitution pertains to the case of bankruptcy where government is given the power to take charge of the assets of an insolvent debtor, distribute them equitably among his creditors, and release him from all debts remaining unpaid. This, of course has the effect of abolishing the property rights of those creditors who are not paid in full, but it is considered necessary in order to distribute the debtors assets equitably and to give him a chance to make a fresh start. But most people would probably agree that it would be unjust for government to directly abolish property rights for reasons other than this.
The fundamental moral law which forbids governments to create rights and duties, should be plainly obvious to everyone. However, [p. 138] because people tend to fix their attention on the creation of rights, and fail to recognize that rights cannot exist without duties, the necessity of obeying this moral law is not clearly seen.
It is impossible for rights to exist in one person unless there are corresponding duties in others. Therefore, when governments create rights, they must at the same time, create duties. But when they create duties, they destroy rights. Those upon whom the created duties are imposed, lose their rights just as surely as if government had passed a law taking them directly. Thus it is impossible for government to create a right in one person without destroying the right of another.
An explanation of what happens when rights are created under a welfare state law will make this clear. When such a law is passed, it provides welfare benefits for some group. But at the same time other laws must be enacted which compels taxpayers to pay those benefits. Government cannot possibly give to one, that which it does not take from another. But this is a forcible taking of property to pay debts not owed, and the obligor is unjustly deprived of an element of freedom.
When government takes property from a person only to the extent necessary to enforce existing duties, the one from whom it is taken loses nothing to which he is entitled because no one has a right to refuse to perform a duty. But if force is used to compel the performance of duties not owed, at that point government crosses that precise line which divides the protection of rights from their destruction, and acts directly contrary to the purpose for which it is formed.
Those in government have no more authority to arbitrarily impose new duties than do the citizens they represent. If an individual undertook to impose and enforce a duty to which he had no right, his act would be regarded as a crime. It is no less so when performed by men acting in the name of government. Since citizens have no power to create rights, and since the only powers governments possess are those given them by the people, the creation of rights by government is a usurpation of power.
Men surrender none of their rights when they establish government. They merely delegate to that agency the power of enforcing existing rights. Neither do they assume any new duties. In the absence of government, each man would be under the necessity of enforcing and protecting his own rightsand doubtless at great cost. Therefore, when we support government we do not perform a new duty. We only discharge in a more effective and economical manner an obligation which [p. 139] already existedthat of protecting our own rights. These fundamental truths underlie the American constitutional system of government and are expressed in the Declaration of Independence in these words:
That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government . . .
Jefferson, who is generally regarded as the author of the above words, provided a more complete exposition of his views in a letter written to Francis Gilmer in 1816 which reads in part as follows:
Our legislators are not sufficiently apprized of the rightful limits of their power; that their true office is to declare and enforce only our natural rights and duties, and to take none of them from us.
No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him; and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third.
When the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded, that on entering into society we give up any natural right. The trial of every law by one of these tests, would lessen much the labors of the legislators, and lighten equally our municipal codes, m (Works of Thomas Jefferson, Federal Edition, G.P. Putnam & Sons, , V. XI, PP. 533-534)
Since no person whether within government or without, can honestly claim that he would consider it just to have others impose duties upon him which he had never agreed to and did not owe, he cannot in good conscience favor laws which do that very thing unto others. Such would be an obvious violation of the principle of the Golden Rule which requires that we treat others as we would be treated.
That Precise Line Between Laws Which Are Constitutional and Those Which Are Not
We have heretofore noted the necessity of precisely distinguishing between those laws which are, and those which are not, constitutional. It [p. 140] is submitted that the four laws discussed in this chapter enable us to do this.
According to the first two laws, punishments should be inflicted for the intentional violation of a duty but in no other instance. This of course requires that in passing judgment on a law which imposes a penalty for violation, we must answer this simple question: Does it require proof of an evil intent in order to convict? If it does, and if the punishment provided is just, then the law is in accordance with the Golden Rule and the Constitution. If it does not, then it is one of those laws which, although as law-abiding citizens we should obey, we should never befriend. We should seek its repeal.
It should be observed that an evil intent does not exist merely because one intentionally violates a law. There are numerous laws today at every level of government which provide for punishing those who have neither intended evil nor caused harm. Such laws can easily be violated by a person who has no evil intent. The true test of the constitutionality of a criminal law is whether or not it provides for punishment only if the defendant violated his conscience by breaking the Golden Rule.
Let us now consider the last two laws which require that government enforce existing rights, but never create nor abolish them. To decide the constitutionality of a law involving these two rules, again it is necessary to answer one key question: Does the law provide for enforcing existing duties only? If it either creates rights or abolishes them, it destroys freedom and is unconstitutional. While as law-abiding citizens we should obey it, never should we befriend it.
Citizens Fully Competent to Pass upon Constitutionality of Laws
The ordinary person is fully capable of comprehending these four rules, and establishing the two crucial facts involved in their application. No specialized legal training is required for this. Therefore in requiring that the people befriend only those laws which are constitutional, the Lord did not ask something beyond the ability and time of the citizenry. In fact in mandating the jury trial in all criminal cases, He placed responsibility for doing so directly on the ordinary person in all such instances. [p. 141]